I cannot follow the reasoning in that case however, that where a retiring partner assigns his share, which requires neither a deed nor a writing,-Lindley on Partnership, 3rd ed. 674,—and the continuing partner assumes the liabilities, that the joint creditors can have any claim to follow the joint assets, and have priority over the separate creditors.

The cases referred to of Ex parte Ruffin, 6 Ves. 119, and Ex parte Walker, 4 DeG. F. & J. 509, and Ex parte Freeman, Buck 471, and many others show that by such an assignment the property is converted into separate estate, and all the consequences must follow that the separate creditors have a prior claim to it,

Ex parte Morley, L. R. 8 Ch. 1026, and Ex parte Dear, 1 Ch. D. 514, are exceptions to the rule, depending upon special circumstances, which shewed that no conversion had taken place. In the former case as expressed by Mellish, L. J. at page 1034, "it was the fair and reasonable construction of the deed, that it was only intended to vest the assets in the father's representative, subject to the payment of the debts * *that it does not prevent the assets, which were the joint assets of the two when the father died, continuing to be joint assets."

And in the latter case, Dear had no share in the capital, but was to be paid for his services by a share in the profits. Nothing was said as to a sale of the assets; they were to continue in the surviving partner, who was to continue the business with them. Dear had then a right to say to the survivor, you may continue the business, but you must pay the debts. And, Mellish L. J., says the executors of a deceased partner may if they please sell their interest in the assets to the surviving partner. take, instead of their right to be indemnified out of the assets, a simple covenant to indemnify them against the debts, the assets cease to be joint assets."

If they do so, and

In re Simpson, L. R. 9 Ch. D. 572, is an affirmance of the general rule; the articles provided that on the death of any of the partners, the partnership should not thereby be dissolved. This was held to mean that the survivors

should continue to be partners, and might deal with the assets in any way they pleased, for the purpose of continuing the business; and two out of four partners having died, it was held that the creditors of the four had no right to have the joint assets of the four, which remained in specie applied first in payment of their debts.

It is possible however, that in Re Walker, 6 A. R. 169, the retiring partner, may have assigned subject to the payment of the debts, in which case he would have retained an equity to have the creditors of the firm paid out of the joint estate.

But in the present case the assignment, I understand, was absolute; the retiring partner taking a covenant from the continuing partner to pay the liabilities of the firm In the present case there is a solvent partner, and the rule in England would therefore be the same.

I do not think it makes any difference in the application of the rules deduced from the cited cases, that they were decisions under a bankrupt or an insolvent law.

The mode of administering insolvent estates is the same in equity as in insolvency: Lodge v.Prichard, 4 DeG. J & S. 613; Baker v. Dawbarn, 19 Gr. 113.

It is of little moment to inquire whether the rules were derived from the insolvent law or from the practice in equity, since they are identical. Turner, L. J., in Lodge v. Prichard, says, “The jurisdiction in bankruptcy is equitable as well as legal. The rights of creditors, therefore, as settled in bankruptcy, must be taken to be settled with reference to their equitable as well as to their legal rights; and this being so, these rules must be held to apply no less to cases in which estates fall to be administered in equity than to cases in which they fall to be administered in bankruptcy."

The plaintiff here seeks to have the insolvent's estate disposed of according to equitable rules, and these rules are perfectly clear, that the joint estate must be first applied in payment of the joint creditors, and the separate estate in payment of the separate creditors, and

that only the surplus of each estate is to be applied in satisfaction of the other class of creditors.

The plaintiff is entitled to judgment for an account of the estate, and for a declaration that he and the separate creditors of L. A. Morrison are entitled to priority over the creditors of the partnership; with costs.

G. A. B.

[CHANCERY DIVISION.]

SUMMERS ET AL. V. SUMMERS ET AL.

Will-Construction-Devisee of land not owned by the testator -Evidence of intention-Extrinsic evidence.

Where a testator devised lot 14, con. 10, in the township of A. to his two nephews, and, after certain pecuniary bequests, directed as follows: "The balance of my estate that may remain after paying the above bequests, to be paid to my relatives as my executors may think advisable ;" and the evidence showed that the testator did not and never had owned that lot; but that he did own lot 21, con. 10, in the township A., which was not specifically devised by the will: Held, that evidence of the testator's intention to devise lot 21, in con. 10 to his nephews was inadmissible.

Held, further, that the Court would not authorize the executors to convey lot 24, in con. 10 to the nephews under the residuary clause in the will.

THIS was an action to have a certain clause in a will reformed so as to express the alleged true meaning of the testator, under circumstances fully set out in the judg

ment.

The case came up by way of motion for judgment, on May 3rd, 1882, before Ferguson, J.

George Macdonald, for the plaintiffs, referred to Davidson v. Boomer, 15 Gr. 218; Lowry v. Grant, 7 U. C. R. 125; Ruthven v. Ruthven, 25 Gr. 534.

The defendants were not represented.

December 9th, 1882, FERGUSON, J.-This case came on by way of motion for judgment. No one appeared on

behalf of the defendants or any of them, though duly served with process, and where necessary the service allowed in chambers. The plaintiffs are John Summers and William Summers, nephews of the testator hereafter mentioned, and the defendants are all the other heirs at law of the testator, and the executors of his last will.

The plaintiffs, by their statement of claim, allege that Culbert Summers, in his lifetime of the township of Escott, in the county of Leeds, was seized in fee or otherwise well entitled to lot 21, in the 14th concession of the township of Artemesia, in the county of Grey, excepting thereout three acres off the north-west corner that he duly made and published his will, setting it forth, and appointed the defendants John Franklin, the younger, Culbert Summers, and Ira Mallony, his executors: that the testator died on or about April 7th, 1881 that the will was proved by the executors on April 29th, 1881 : that the testator was not, at the time of the making of his will, nor at the time of his death, and never was the owner of or interested in lot No. 14, in the 10th concession of Artemesia, which by the will appears to be devised to the plaintiffs: that the testator did not intend to devise lot 14 to the plaintiffs, but did intend to devise to them lot 21, and was only prevented from so doing by his forgetfulness of the number of the lot: that the testator thought at the time of the making of the will, and thereafter till the time of his death, that he had devised lot 21 to the plaintiffs. And the plaintiffs ask to have the clause in the will "reformed" so as to express the alleged true intention of the testator, and made to read as a clause giving to the plaintiff John Summers the east half, and to the plaintiff William Summers the west half of lot 21, in the 14th concession of Artemesia, excepting thereout the said three acres off the north-west corner of the same; or that the residuary clause in the will may be so construed as to vest any 'undisposed of property of the testator absolutely in the executors, and that they be authorized to convey lot 21 to the plaintiffs in equal proportions.

The probate of the will is produced. By the first clause of the will the testator directs that his funeral expenses and his debts be paid by his executors out of his personal estate. Then he says that the residue of his estate and property which shall not be required for the payment of his debts and funeral expenses, and the administration of his estate he gives and disposes of as follows: Then follows a gift of the homestead farm to the testator's nephew, Culbert Summers. There is then a gift to the testator's nephew James Summers, of the parts of lots 19 and 20, in the 10th concession of Artemesia, then owned by the testator. Then follows the gift to the plaintiffs, which is the one in question, and it is in these words: "I give and bequeath to my nephew John Summers, the east half, and to my nephew William Summers the west half of lot No. 14, in the 10th concession of the township of Artemesia, in the county of Grey. To have and to hold the same to them and their heirs and assigns forever." Then follows a gift to the ministers of the Lyn circuit of $200, and ten dollars for the superannuated fund; then a gift of $1,000 to William Summers, to be equally divided amongst his children, and one to his brother, James Summers, $500; the sum of $500 to Eliza Summers, and $1000 to one James Summers; $100 to Margaret Jane Foley; $100 to Eliza Franklin; the testator directing that these bequests be paid by his executors when the funds should be collected out of his estate. The testator then says: "And the balance of said estate that may remain after paying the above bequests to be paid to my relatives as my executors may think advisable, after paying them a fair remuneration for their time and expenses." Then follows the clause appointing the executors and the will concludes.

The testator in this case expressed his intention of devising and bequeathing all his property. The will, however, contains a residuary gift, so that whether the plaintiffs succeed in their contention or not the lot of land in question will not be undisposed of by the will. Evidence of two kinds is adduced by affidavits. First, to show the