Page images
PDF
EPUB

the expiration of the said ten years, then he devised the residue of the said term to his said 3 daughters Mary, Anne, and Joan, equally to be divided amongst them, or to such of them as should be then living, and made his wife Anne sole executrix, who assented to the said legacies, and entered and enjoyed the premises during her life; and died about 12 years since, about which time there was 18 years of the said term to come and unexpired.

After the death of the said Anne, the defendant Richard Smith purchased the interest of the said Roger in this inn, having before purchased the inheritance; and after the said ten years were expired, the plaintiffs entered as devisees by the said last will of their father William Adams, and exhibited a bill to have an account, &c., and that the remainder of the said term might be decreed to them.

But the defendant refused to give them possession, claiming the premises by virtue of an assignment of the said term to him by Anne the executrix of William Adams, in consideration of £150 which he paid to her, the better to enable her to discharge the debts of the said testator, she not having sufficient assets for that purpose; and thereupon she delivered up to the said defendant Smith the original lease; and that since he entered, he hath laid out several sums of money in the necessary repairing the said inn.

And that since the plaintiffs have charged, that the said Anne the executrix did assent to their legacies, they have a proper remedy at law notwithstanding the said assignment; and therefore he insisted by his counsel, that they ought not to have any relief in this court.

But the court being satisfied, that the said Wm. Adams left sufficient assets to pay his debts; and that Anne the executrix did assent to the said legacies, decreed to the plaintiffs the residue of the said term; and that the defendant should account to them for the rents and profits over and above the rent reserved in the original lease, from the expiration of the 10 years, during the remainder of the said term, according to the value thereof, when the defendant first entered, in case the plaintiffs will accept it.

But if the plaintiffs shall insist to have the account taken according to the present value, then the master to take an account of what money the defendant hath laid out for the necessary repairs and improving the premises; and in taking the said account he is to have respect as well to the interest of the said Anne, and to the term of 10 years which Roger had in the same, as to the plaintiff's interest, and also to the inheritance; and to allow the defendant proportionable shares of all such money by him laid out in repairs and improvement of the rent, out of the money that shall be coming to the plaintiffs.

But if the plaintiffs will accept the account according to the value of the said inn, at the time when the defendant entered, then the master is only to examine what that value was, and accordingly to take the account, and to certify what will be thereupon due to the plaintiffs, &c.1

1 See 2 Wms. Exec. (8th ed.) 937, 938.

HUMBLE v. BILL.

CHANCERY. 1703.

[Reported 2 Vern. 444.]

BILL having a term for twenty-one years in the printing-office, devised (amongst other things) that £2,000 should be raised out of the profits of the printing-office for his daughter, the wife of Darcy Savage, and their children, and made one Garret executor; who first mortgaged the term in the printing-office to Dr. Brown, and the same was afterwards assigned to Sir William Humble for £1,800.

It was insisted, here was no occasion to sell to pay debts, and Sir William having notice of the will, was to take the estate subject unto the £2,000.

But the court was of opinion, that the executor of a testamentary estate had the power over it so as to alien or sell, as he should judge necessary; and that if he sold in prejudice of a residuary or specific legatee, they might have their remedy against the executor, but not follow the estate into the hands of a purchaser; for should that be allowed, no one would venture to buy of an executor; for it would be unreasonable that a purchaser should take upon him to make out the account, as to the quantum of the debts or assets; nor is he entitled to have the vouchers to make out such an account; and if such difficulties be put upon purchasers of chattels, &c., from executors, it will follow, that executors will be under an incapacity, and disabled to sell, though there be never so much occasion for it, for payment of debts; and therefore the court decreed an account to the plaintiff of the rents and profits, and to hold and enjoy the printing-office, and defendants to redeem, or be foreclosed.

NOTE. This decree was afterwards reversed upon an appeal to the House of Lords (1 Bro. P. C. 71).1

1 "I should have hardly assented to the reversal. Ewer v. Corbet, 2 Wms. 148: The Master of the Rolls seems to think that case has gone too far: it is not a very clear case, but it appears there had been bills filed in chancery concerning it, and that there was a bill depending, when Sir William Humble advanced his money. Garrat, the executor, had been decreed to transfer his trust, so that he was under a decree to transfer, when he mortgaged to Brown, and afterwards to Humble; Mrs. Savage afterwards got another decree. If these were the grounds on which the House of Lords proceeded, I must dissent from their judgment. This was not the common case of an executor mortgaging the property of the testator, which might or might not be for the purposes of the will. There was no lawyer at that time in the House (unless perhaps Lord Somers), and the case was much embarrassed by circumstances." - Per SIR RICHARD PEPPER ARDEN, in Andrew v. Wrigley, 4 Bro. C. C. 125, 137 (1792).

Cf. McLeod v. Drummond, 17 Ves. 152, 160, 161 (1810).

[blocks in formation]

FRANCIS HOOPER, being indebted to the plaintiff £100 on bond, died possessed of a great personal estate, and made his brother William executor and devisee, who wasted the estate: the defendant Drake, having notice of the plaintiff's debt, buys of William, the executor, a leasehold estate by discounting £200 due from the testator, £550 due from the executor, and by payment of £150 in money.

Plaintiff's bill was to have satisfaction for his debt out of the leasehold estate, being part of the testator's assets.

Question was, whether this was a good sale to bind a creditor. For the defendant it was insisted, that an executor may sell, and with the money, when he has it, may pay his own debts; and for the same reason he may upon sale discount and allow the purchaser the debt he owes him; and the rather in this case, because he paid £150 in money with which the executor might have paid the plaintiff's debt; yet decreed for the plaintiff at the Rolls, and affirmed on an appeal to the Lord Chancellor, he saying the defendant was a party, and consenting to and contriving a devastavit.1

EWER v. CORBET.

CHANCERY. 1723.

[Reported 2 P. Wms. 148.]

ONE possessed of a term of years, devised it to A. and died indebted, having made B. his executor.

The executor sold the term, upon which the devisee of the term brought a bill against the purchaser, insisting, that the term being devised to the plaintiff, the executor was but a trustee for him, and that the purchaser must have notice of this trust, the term having been bought of the executor, and consequently must be taken subject to the trust.

MASTER OF THE ROLLS. [SIR JOSEPH JEKYLL.] I remember it to have been once ruled, that an executor could not make a good title to a term to a purchaser, and that was in the case of major Bill v. Humble, 2 Vern. 444.

But since that, I take it to have been resolved, and with great reason, that an executor, where there are debts, may sell a term, and the devisee of the term has no other remedy, but against the executor, to recover the value thereof, if there be sufficient assets for the payment of debts.

1 See Doe d. Woodhead v. Fallows, 2 C. & J. 481 (1832).

As for the notice of the will, and of the devise of the term to a third person, that is nothing; for every person buying of an executor, where he is named executor, must, of necessity, have notice, so that if notice were to be an hindrance, then of consequence, no executor might sell.

It is not reasonable to put every purchaser of a lease from an executor, to take an account of the testator's debts; nor has he any means to discover them.

On the contrary, as the whole personal estate of the testator is liable to the debts, this lease must (inter alia) of necessity be liable, and therefore may be sold by the executor.

If equity were otherwise, it would be a great hindrance to the payment of debts and legacies; and would lay an embargo upon all personal estates in the hands of executors and administrators; which would be attended with great inconveniences.

I admit, if an executor should sell a term for an undervalue, or to one who has notice that there are no debts, or that all the debts are paid, this might be another consideration: but there being no such ingredient in the present case,

Dismiss the bill.1

NUGENT v. GIFFORD.

CHANCERY. 1738.

[Reported 1 Atk. 463.]

THE bill was brought against some of the defendants, as trustees of a mortgage term for an assignment, and against others to discover what interest they had in the premises.

It appeared that the mortgage in question, was a mortgage term to trustees in trust for Sir Richard Billings the testator, and Mr. Arundel executor of Sir Richard had assigned this mortgage term to the plaintiff, as a satisfaction for a debt due from Mr. Arundel to the plaintiff.

The question was, if such assignment was good against the daughters of Sir Richard Billings, who were creditors under the marriage settlement, and also to whom the trustees should assign the legal estate.

LORD CHANCELLOR [HARDWICKE]. The question is, if the two daughters, who are allowed to be creditors, are entitled to follow this mortgage term (in the hands of the plaintiff as assignee of it) as specific assets.

I am of opinion they are not, but that the plaintiff is entitled to the benefit of such assignment by the executor.

At law the executor has a power to dispose of, and alien the assets of the testator, and when they are aliened, no creditor by law can follow them, for the demand of a creditor is only a personal demand against the executor, in respect of the assets come to his hands, but no

1 See Cole v. Miles, 10 Hare, 179 (1852).

lien on the assets: this court will indeed follow assets upon voluntary alienations by collusion of the executor; but if the alienation is for a valuable consideration, unless fraud is proved, this court suffers it as well as at law, and will not control it; for a purchaser from an executor, has no power of knowing the debts of the testator; and if this court, upon the appearance of debts afterwards, would control such purchasers, nobody would venture to deal with executors.

It is objected first, that these were the equitable assets of Sir Richard Billings, and that the plaintiff purchased nothing but an equitable interest, burdened with all the equity in the hands of the person from whom he purchased.

But that is a rule only where there is a lien on the thing itself, and I know no difference in this court, between the power of an executor to dispose of equitable and legal assets.

The second objection is, that the assignee took this assignment with notice, that it was the testamentary assets of Sir Richard Billings.

But if this was sufficient to affect it, it would affect every purchase from an executor, because every such purchaser must have such notice. The third objection is, that this is a devastavit, because the consideration was a debt of the executor's own.

But I know no rule in this court to warrant that, neither is there any difference between this and money paid down, provided it be done. bona fide, a sum of money bona fide due, is as good and valuable a consideration as any.

The only authorities relied on are Crane v. Drake, 2 Vern. 616, and Paget v. Hoskins, Prec. in Eq. 431. The first greatly differs from the present case, there being express notice of a debt from the testator, still unsatisfied, and a contrivance between the purchaser and the executor, to defeat a just debt, and as Lord Chancellor said, the defendant was a party to, and contriving a devastavit.

Here was no notice of any debts due from the testator, for it is sworn in the answer, that Sir Richard Billings died worth £40,000, and this was a debt under a settlement, which is a private transaction in the family.

As to the case of Paget v. Hoskins, that was a gross sum computed by the wife as her share of her former husband's estate, according to the custom of London, and taken by the husband, subject to that account.

These are the only authorities, and both different from the present case; this I think therefore is a good alienation, and the plaintiff ought to have the benefit of it.1

[ocr errors]

1 Nugent v. Gifford was a term vested in trustees for Sir Richard Billings and his wife. Sir Richard Billings, by his will, gave several specific legacies, and made Mr. Arundel, his natural son, executor and residuary legatee. In 1718, two years after Sir Richard's death, the son had become indebted to Knight, one of the trustees of the term. He assigned to Knight the term, inasmuch as he could, as executor, and there was an account settled between them: there was no bill for an account against

« PreviousContinue »