BACK versus ANDREW. PURCHASE made of a copyhold estate by John Andrew the husband, and the surrender taken to John Andrew and his wife, and Elizabeth his daughter, and their heirs. The said John Andrew, as being visible owner of the estate, takes upon him to make a conditional surrender by way of mortgage to the plaintiff, and afterwards dies; the plaintiff's bill was against the mother and daughter to discover their title, and to set aside their estates as fraudulent against the plaintiff, who was a purchaser; sed non allocat'. Bill dismissed but without costs; for per Cur. the husband and wife take one moiety by intireties, so that the husband cannot alien, nor dispose of it, so as to bind the wife, (1) and the other moiety is well vested in the daughter. 24 Januarii. In Court. LORDS COMPre. Ch. 1. MISSIONERS. S. C. tate, and self and his takes the sur- The husband The husband mortgages it, and dies; void for the whole, and no relief in equity. (1) Vide Co. Lit. 187. a. b. Anon. vol. 233. Green on dem. of Crew v. Skin. 182. Bricker v. Whatley, ante 1 King, 2 Bl. Rep. 212. MEAD versus HIDE. (2) ONE Davis by will devises several legacies & inter al', twenty pounds to John Hide (the defendant) and makes him executor, and devises his real estate to the plaintiff, * paying his debts and legacies, (3) and if he did not pay the legacies in three months, and the debts in two months, the legatees and creditors might enter and hold 'till satisfied. CASE 121. LORDS COM MISSIONERS. A.by will gives 201. to B. and makes him executor, and gives his real estate to C. the legatees [*121 ] paying his debts and legacies, and in default of payment within such a time, and creditors to enter and to hold 'till paid, and makes no express disposition of the surplus of the personal estate. The personal estate shall be applied in ease of the real. The question was, whether the personal estate should be applied in ease of the real estate. The court decreed the personal estate should go in ease of the real estate, and observed that the devise amounts but to a charge upon the real estate, and extends not to avoid the estate, in case of non-payment; and observed that in this case the defendant has a particular legacy, and there is no devise to him of the residuum bonorum. And in case there had MEAD V. been no executor, can any one doubt, but that the personal estate in the hands of the administrator, should be applied in ease of the real estate, though the real estate were made likewise liable ut supra: and besides, here the creditors have a bill, and no one can question but they have a right to be satisfied out of the personal estate, if they think fit to pursue it. The Lord Maynard observing upon the evidence, that Hide had drawn the will, said it was a rule in the civil law, that Qui sibi constituit nihil capit. CASE 122. 7 Februarii. LORDS COM In Court. MISSIONERS. Eq. Ca. Ab. 4. tenant for life, remainder to his first, &c. son, in tail, remain WISEMAN versus BEAKE. THE plaintiff had entered into several statutes of great penalties to the defendant's testator, defeasanced for payment of ten for one, upon the death of his uncle, who was only tenant for life, of a considerable real estate, remainder to his first and other sons in tail, remainder to the plaintiff, in case the uncle died without issue male, and the plaintiff survived him: and the plaintiff's uncle dying some years since without issue, the bill was to be relieved against this bargain, and to have up the securities on der to his nephew B. B. enters into several statutes to C. for payment of ten for one upon the death of A. in case he died without issue male in the life of B.; C. in the life of A. brings a bill to compel B. either to pay principal and interest, or to be foreclosed of any relief against the bargain. B. by answer declares the bargain fairly made, and intends to abide by it, and that he would seek no relief against it. A. dies, and B. brings a bill against the executor of C. and notwithstanding B.'s former auswer, he is relieved against the bargain, on payment of principal and interest without costs. payment of what was really due with interest. [*122 ] For the defendant it was insisted, that this was not the ordinary case of surprising a young heir into a hard bargain, but Mr. Wiseman was above thirty, near forty years old, when this bargain was made, had long been a man in employment, (to wit) a Proctor at Doctor's Commons, and of experience in the world: and besides, the defendant's testator, several years after this bargain made, understanding that the Chancery began to relieve against such bargains, came to advise with Mr. Serjeant Philips, what was fit to be done in the case, and thereupon a bill was exhibited by the testator against the defendant, to compel him either to repay the money with interest, or to be foreclosed of any relief against this bargain; and that in answer thereunto in the life-time of his uncle, he elected to stand to the bargain, and that it was fairly and duly made, and that he would not seek any relief against the same, and therefore ought not now to be relieved against his own election and oath. Per Cur. When he had spent the money, then a specious offer was made to relinquish the bargain on payment of the BEAKE. money lent with interest, which at that time was impossible WISEMAN v. for him to do: and though such bill was exhibited, it was not prosecuted, but was a contrivance only to double hatch the cheat; and therefore thought fit to relieve the plaintiff on payment of principal and interest only, without costs, and decreed it accordingly. (1) (1) 24th January, there is an entry of an order for production of deeds, and that the plaintiff should attend personally at the hearing. Reg. Lib. 1689. B. fol. 205. And also 16th June, of an order for signing and inrolling a de cree therein mentioned to have been made on the 7th February preceding, on the petition of the plaintiff, same book, fol. 788. but no entry of the decree appears. Batty v. Lloyd, ante 1 vol. 141. and cases in not. there. DYER versus TYMEWELL. * THE bill was to be relieved against a bill of exchange for fifty pounds, mentioned to be for value received, which was in truth extorted from the plaintiff by the defendant in the time of Monmouth's rebellion, the defendant being then a justice of the peace, and taking upon him to send for whom he pleased, &c. a bill of exchange said to be for value received, but gained by fraud, and for sideration. The court could not well relieve against this bill of exchange, upon pretence that it was gained by threats or menaces, for that was proper at law, and Duresse a good plea there; (2) but inasmuch as the defendant by his answer having admitted, that although the bill was drawn for value received, that there was not any money paid; but insisted that he had intrusted one Andrews many years ago to sell some clothes for him, and that the plaintiff attached those clothes in the hands of Andrews, and for the debt of Andrews; whereas they were the defendant's proper goods; and that the plaintiff had often promised to make him satisfaction, and at last gave him the bill of exchange in question in satisfaction thereof: and the plaintiff having proved in the cause that Andrews was no factor, nor was indebted to the defendant, and falsified his answer as to that pretence; 2 CASE 123. Eodem die. In Court. LORDS COMMISSIONERS. Eq: Ca Ab. 126. pl. 10. Freem. 112. Relief against a fictitious con S. C. [*123 ] The court declared the bill of exchange to be gained by In case of a gross fraud, fraud and practice, upon the pretence of a demand that was the court will fictitious, and had nothing of reality in it, and therefore decreed give costs to (2) In cases of fraud, equity has a concurrent jurisdiction with law, Colt v. Woollaston, 2 P. Wms. 156. Stent v. Bailis, ibid, 220. and often contrary be ascertained by the party's own oath. to and beyond the rules of law, per Hardwicke, Lord Chancellor, Garth v. Cotton, 3 Atk. 755. [Sowerby v. Warder, 2 Cox, 268.] DYER V. TYMEWELL. the plaintiff to repay the fifty pounds with interest, and costs to be ascertained by the plaintiff's own oath. (3) (3) The interest was to be computed from the time of the indorsement of the bill for the receipt of the money, up to the day of making the decree, and the plaintiff was to carry in a bill of particulars of his costs out of purse, by reason of the suit, and to make affidavit of the truth thereof, to be settled by the master. Reg. Lib. 1689. A. fol. 229. Vide Childrens v. Saxby, ante 1 vol. 207. Dorrington v. Jackson, ibid. 450. [124] PETER CROOKE and ELIZABETH his Wife, Sister of the half Blood to GEO. WATT deceased, CASE 124. 11 Die Feb. In Court. LORDS COMMISSIONERS. Eq. Ca. Ab. 249. pl. 8. S. C. 2 Vent. 317. S. P. The sister of the half blood shall come in for an equal share, upon the statute of distribution, with the JOHN WATT, Administrator of GEORGE Plaintiffs. Defendants. THE single point was, whether the sister of the half blood, should come in with the brother and sister of the whole blood, for an equal share of the intestate's estate, or whether the half blood should have only half a share, or should be wholly excluded. brother or sister of the whole blood. 1 Vol. p. 437. 1 Mod. Rep. 209. [125] For the plaintiffs it was insisted, that there were very many precedents in this court, where the half blood had been admitted to an equal share; that it was almost endless to cite them, and cited the case of Hill and Birds, where a prohibition had been moved for and denied, and administration thereupon granted to the sister of the whole blood: and a case in the Modern Reports to the same effect. For the defendants it was insisted by Mr. Attorney General, and Mr. Serjeant Levinz, that in case of descent, and in all cases where the common law takes notice of blood, the whole blood is preferred, and instanced in many cases;, as where a remainder is limited proximo de sanguine, it will go to the whole blood, and the act for distribution of intestate's estates must be expounded according to the common law; in some cases it directs distribution to be made according to former laws, which must be intended common law, That the courts of common law had always controlled the spiritual courts in these matters, and cited the Lady Butler's case, in the Lord CROOKE V. WATT. Chief Justice Hale's time, where by the statute of H. 8. the ordinary is to grant administration to the wife or next of kin, if there be a wife, the spiritual court shall not be suffered to grant the administration from her to the next of kin; that it 1 Salk. 36. was not meant by the statute, the ordinary should have that latitude, but that where there was a wife, she should have it; if no wife, the next of kin. (1) father dies If there be a grandfather, father, and son, and the father If there be grandfather, dies intestate, the son shall have the administration, and not father and the grandfather, though they be both in equal degree as to son, and the nearness of kindred, and so is the opinion in Godolphin, that intestate, the the child or children shall in that case be preferred as to ad- the adminisministration. And cited Palmer's Reports, 416. Latch's tration, and not the grandReports, 67. and Brown's Case, 8 Car. that the whole blood father. is not to be preferred. a son shall have 1 Mod. Rep. 307. 316. 323. 209. 1 Vent. 2 Mod. 204. 2 Lev. 173. As to the case of Smith and Tracy in B. R. there was a prohibition moved for, because the spiritual court took upon them to distribute to the half blood, and the court ordered demurrer to be put in, that all might come before the court; Sir Thomas but before any judgment in that case, the Lord Chief Justice Jones, 93. Hale went off the bench, and he and Twisden seemed all along to incline in opinion against the half blood, and afterwards the Lord Chief Justice Rainsford informing the court, that in the spiritual court they distributed but half a share to the half blood, there was no further proceedings had in the [126] said cause but then soon afterwards came Doctor Story's Case before Doctor Raynes, then Judge of the Prerogative Court, and he let in the half blood to a whole share. Per Lord Maynard, there is no doubt, but the half blood is capable of having the administration; even an alien of the half blood is capable, and cited Hink's Case, who, he said, died a martyr for the common law, because in the court of wards, he would not swear a lease for one thousand years to be a fee simple, and cited the case in Dyer, where administration was granted to the residuary legatees, for that administration is in respect of interest: and said, that the words in the statute for distribution prō suo cuique jure, according to law, cannot be interpreted as to former laws; for then there were no former laws in being, and so must be intended according to the common law. (2) And it was observed that in Scotland, they (1) Vide Stapleton v. Sherrard, ante 1 vol. p. 315. where North, Lord Keeper, of opinion, that the ordinary has a discretionary power to grant ad ministration either to the wife or next of kin. (2) Vide Beeton v. Darkin, post. 170. |