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right in my construction of the Statute, that it gives nothing in terms to the grandchildren of the intestate, but that the provision for "children" covers all the descendants of children, the decision in In re Ross's Trusts is directly in point. If Mr. Norton's argument is correct, the fund in that case should have been divided into sevenths, instead of into moieties, and the distinction which he has attempted to draw does not seem to me to alter the effect of the decision. In re Ross's Trusts confirms my view of the construction of the Statute, and it adopts that of Lord Hardwicke.

Under these circumstances, I hold that the one sixth share of residue which is undisposed of in the present case must, so far as it consists of personal estate, be divided into moieties. One of the moieties will be equally divided among the three children of Henry John Bassett, the other will go to the representative of G. N. Collin. The lapsed share, so far as it consists of realty, will go to the heir-at-law of the testatrix.

NOTE. - Under the Statute of Distributions the half blood take equally with the whole blood. Watts v. Crooke, Show. P. C. 108. And see Burnet v. Mann, 1 Ves. Sr. 156 (1748).

Under the St. Jac. II. c. 17, § 7, where an intestate leaves a wife, mother, brothers, and sisters, but no issue, the wife takes half, and the other half goes among the mother, brothers, and sisters equally. Keylway v. Keylway, 2 P. Wms. 344 (1726). So where he leaves a wife, mother, and the children of a deceased brother, but no issue or brothers or sisters, the wife takes half; the mother, a quarter; and the nephews and nieces, the other quarter. Stanley v. Stanley, 1 Atk. 455 (1739). And under the same Statute, brothers and sisters of the half blood, as well as of the whole blood, share with the mother. Jessopp v. Watson, 1 Myl. & K. 665 (1833).

A widow to whom a legacy has been given in lieu of all claims on the estate, may yet share in personal property which has become undisposed of, by reason of a lapsed or void residuary bequest, Pickering v. Stamford, 3 Ves. 332 (1797); but not in personal property which is undisposed of on the face of the will. Lett v. Randall, 3 Sm. & G. 83 (1855).

CHAPTER XII.

REAL AND EQUITABLE ASSETS.

SECTION I.

REAL ASSETS.

ST. 29 CAR. II. c. 3, § 10. (3) And if any cestui que trust hereafter shall die, leaving a trust in fee-simple to descend to his heir, there and in every such case such trust shall be deemed and taken, and is hereby declared to be, assets by descent, and the heir shall be liable to and chargeable with the obligation of his ancestors for and by reason of such assets, as fully and amply as he might or ought to have been, if the estate in law had descended to him in possession in like manner as the trust descended; any law, custom or usage to the contrary in any wise notwithstanding.

ST. 3 & 4 WM. & M. c. 14. (1691). An Act for Relief of Creditors against Fraudulent Devises. Whereas it is not reasonable or just, that by the practice or contrivance of any debtors their creditors should be defrauded of their just debts; and nevertheless it hath often so happened that where several persons having by bonds or other specialties bound themselves and their heirs, and have afterwards died seised in fee-simple of and in manors, messuages, lands, tenements, and hereditaments, or had power or authority to dispose of or charge the same by their. wills or testaments, have to the defrauding of such their creditors, by their last wills or testaments devised the same, or disposed thereof in such manner as such creditors have lost their said debts: for remedying of which, and for the maintenance of just and upright dealing,

II. Be it enacted and declared by the King's and Queen's Most Excellent Majesties, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by authority of the same, that all wills and testaments, limitations, dispositions, or appointments, of or concerning any manors, messuages, lands, tenements, or hereditaments, or of any rent, profit, term, or charge out of the same, whereof any person or persons, at the time of his, her, or their decease, shall be seised in fee-simple, in possession, reversion, or remainder, or have power to dispose of the same by his, her, or their last wills or testaments, to be made after the five and twentieth day of

March, in the year of our Lord God one thousand six hundred ninety and two, shall be deemed and taken (only as against such creditor or creditors as aforesaid, his, her, and their heirs, successors, executors, administrators, and assigns, and every of them) to be fraudulent, and clearly, absolutely, and utterly void, frustrate, and of none effect; any pretence, color, feigned or presumed consideration or any other matter or thing to the contrary notwithstanding.

III. And for the means that such creditors may be enabled to recover their said debts, be it further enacted by the authority aforesaid, that in the cases before mentioned, every such creditor shall and may have and maintain his, her, and their action and actions of debt, upon his, her, and their said bonds and specialties, against the heir and heirs at law of such obligor or obligors, and such devisee or devisees, jointly by virtue of this Act; and such devisee or devisees shall be liable and chargeable for a false plea by him or them pleaded, in the same manner as any heir should have been for any false plea by him pleaded, or for not confessing the lands or tenements to him descended.

IV. Provided always, and be it enacted by the authority aforesaid, that where there hath been or shall be any limitation or appointment, devise or disposition, of or concerning any manors, messuages, lands, tenements, or hereditaments for the raising or payment of any real and just debt or debts, or any portion or portions, sum or sums of money, for any child or children of any person, other than the heir at law, according to, or in pursuance of, any marriage contract or agreement in writing bona fide made before such marriage, the same and every of them shall be in full force; and the same manors, messuages, lands, tenements, and hereditaments, shall and may be holden and enjoyed by every such person or persons, his, her, and their heirs, executors, administrators, and assigns, for whom the said limitation, appointment, devise, or disposition was made, and by his, her, and their trustee or trustees, his, her, and their heirs, executors, administrators, and assigns, for such estate or interest as shall be so limited or appointed, devised or disposed, until such debt or debts, portion or portions, shall be raised, paid, and satisfied; anything in this Act contained to the contrary notwithstanding.

V. And whereas several persons being heirs at law, to avoid the payment of such just debts, as in regard of the lands, tenements, and hereditaments descending to them they have by law been liable to pay, have sold, aliened, and made over such lands, tenements, or hereditaments, before any process was, or could be issued out against them; be it further enacted by the authority aforesaid, that in all cases where any heir at law shall be liable to pay the debts of his ancestor in regard of any lands, tenements, or hereditaments descending to him, and shall sell, aliene, or make over the same, before any action brought, or process sued out against him, that such heir at law shall be answerable for such debt or debts, in an action or actions of debt, to the value of the land so by him sold, aliened, or made over; in which cases all creditors

shall be preferred, as in actions against executors and administrators, and such executions shall be taken out upon any judgment or judgments so obtained against such heir, to the value of the said land, as if the same were his own proper debt or debts; saving that the lands, tenements and hereditaments bona fide aliened before the action brought, shall not be liable to such execution.

VI. Provided always, and be it further enacted by the authority aforesaid, that where any action of debt upon any specialty is brought against any heir, he may plead riens per descent, at the time of the original writ brought, or the bill filed against him; anything herein contained to the contrary notwithstanding; and the plaintiff in such action may reply, that he had lands, tenements or hereditaments, from his ancestor before the original writ brought, or bill filed; and if upon issue joined thereupon it be found for the plaintiff, the jury shall inquire of the value of the lands, tenements, or hereditaments so descended, and thereupon judgment shall be given, and execution shall be awarded as aforesaid; but if judgment be given against such heir by confession of the action, without confessing the assets descended, or upon demurrer, or nihil dicit, it shall be for the debt and damages, without any writ to inquire of the lands, tenements, or hereditaments so descended.

VII. Provided also, and be it further enacted, that all and every devisee and devisees, made liable by this Act, shall be liable and chargeable in the same manner as the heir at law by force of this Act, notwithstanding the lands, tenements, and hereditaments, to him or them devised, shall be aliened before the action brought. Provided always, that this Act shall be in force for three years, and to the end of the next session of Parliament after the expiration of the said three years, and no longer.1

1 Made perpetual St. 6 & 7 Wm. III. c. 14, § 2 (1695). See St. 11 Geo. IV. & 1 Wm. IV. c. 47 (1830).

The remedy against a devisee under this Statute is confined to debt; covenant cannot be brought. Wilson v. Knubley, 7 East, 128 (1806).

The remedy is personal against the heir, and under the Statute against the devisee; neither at the common law nor by the Statute can the land be followed. Mathews v. Jones, 2 Anst. 506, 515 (1794). Spackman v. Timbrell, 8 Sim. 253 (1837). Pimm v. Insall, 1 Mac. & G. 449 (1849). Richardson v. Horton, 7 Beav. 112 (1843).

The equity of redeeming a mortgage in fee will be dealt with like legal real assets. Solley v. Gower, 2 Vern. 61 (1688). As to other cases in which equity will give ancillary aid in making real assets available for the specialty creditors, see Bedford v. Leigh, 2 Dick. 707 (1785); Tyndale v. Warre, Jac. 212 (1821); In re Royle, 5 Ch. D. 540 (1877); 2 Set. Dec. (4th ed.) 806.

See Wms. on Real Assets, cc. 2, 3. On the application of real estate in the United States to pay debts and legacies, see 2 Woerner, Amer. Law of Adm. §§ 463–488.

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