1803. Nov. 30. A creditor coming in to prove his debt after a dividend made, (provided the delay was not frau dulent but voidable cir- IN THE MATTER OF WHEELER, A MR. O'DRISCOLL moved on behalf of a creditor, for liberty to prove his debt and to be paid equally with the other creditors who had already received one dividend. The petition and affidavit on which the application was grounded, stated that the petitioner had been prevented by the casualty of his solicitor's being killed in the rebellion of 1798, and by the disturbances which then took place, from proving his debt: the commission had issued in 1796. The commissioners had deferred making a final dividend, in order that this motion might be made. Lord CHANCELLOR. I have observed a practice here different from that in England:-That where a creditor comes forward to prove after a dividend has been made, he is not allowed any benefit of that dividend, but is only admitted to receive his share of the future dividends. I do not think this is warranted by the statute: It may be that a creditor has kept back from some fraudulent intent, or with a view to delay the proceedings; in such a case the practice may be proper: but where every thing on the part of the creditor has been fair, and the delay is occasioned by accident or unavoidable circumstances (as for instance, in the case of a foreign creditor who cannot have received notice in time) the commissioners ought to apply the fund in the first place to put such creditor on a footing with the others; if the effects are not sufficient for that, the other creditors can have no further di vidend; if there be enough, all must take alike in the future dividend. Petition allowed. (a) (a) Vid. Ex parte Peachy, 1 Atk. 111; Ex parte Styles and Pickart 1 Atk. 206; Ex barte Long, 2 Bro Ch. C. 50. 1803. WHEELER, a Bankrupt ADAIR v. SHAW. Nov. 22, 23, 25. CHARLES CRYMBLE the elder on the 27th March Feme covert dies; his assets are chargeable in equity for mitted during the waste com the coverture. Whether the obtains admi. 1766, duly made and published his last will and testament, nistration, and whereby, amongst other things, he devised to trustees (there- the goods are in named) estates in fee in the county of Antrim and county the coverture wasted during of the town of Carrickfergus, to the use of his great grand- the husband son, Charles Crymble, for the term of his natural life, remainder to trustees to preserve contingent remainders, and from and after the decease of Carles Crymble to the use of the first and other sons of the said Charles Crymble successively in tail male; and for want of such issue of the said Charles Crymble then to the testator's great grandson William Magee Crymble, for his natural life, remainder to trustees to preserve, &c. and from and after his decease to the use of the first and other sons of the said W. M. C. in tail male; and for want of such issue of the said IV. M. C. then to the use of the testator's grandson, Charles Adair, for his natural life, remainder to trustees to preserve, &c. wife surviving shall not be charged, if assets of the husband prove in. sufficient Qu. Sembl. that she shall. and from and after his decease to the use of the first and other sons of the said Charles Adair in tail male, with remainders over. The testator also devised his estates in the county of Down in the same manner as those above mentioned, save that the limitation to Wm. M. Crymble and his issue preceded that to Charles Crymble. The will then, after several annuities and legacies given, proceeded as follows: "I give and bequeath all the rest residue and remainder of my personal estate and assets to said trustees, in trust, after payment of debts and legacies, to lay out one moiety of the residuum in the purchase of lands in the county of Antrim and county of the town of Carrickfergus, which moiety when laid out shall be subject to the like uses, trusts, and limitations, as herein before mentioned, as to my Antrim estates: and in trust that the said trustees do lay out the other moiety in purchasing lands in the county of Down, to be subject to the like uses, trusts and limitations, as my estates in the county of Down.” To this will the testator at different times added six codicils. By the second codicil, bearing date, 18th Nov. 1768, he revoked the devise to the trustees named in the will, and devised all said lands to different trustees and their heirs for ever in trust for the uses and purposes in said will, save and except as to the town-lands of Raleagh, in the county of Down, which he recited as having been by his will, limited to the use of Wm. Magee Crymble and his issue in tail male; and testator thereby revoked that use and limitation, and gave the said town-land to Charles Crymble and his issue in tail male, subject to the limitations in the will with respect to the other lands in the said will limited. By the fourth codicil, dated March 1771, the testator recited the purchase of other lands in the counties of Antrim and Meath, and devised them in trust for Charles Crymble, for life, remainder to his first and other sons in tail male, remainder to Wm. M. Crymble for life, remainder to his first and other sons in like manner, remainder to the same persons to whom his estates in Antrim, Carrickfergus and Down are limited, "in the same manner and subject to the same trusts and 66 powers as my said estates in the county of Antrim, &c. 66 are by the within will devised and limited to the said "Charles Crymble the younger, Wm. M. Crymble respec66 tively and their respective issues, and the said other per66 sons and their issues respectively." The sixth codicil bearing date 3d March, 1775, recited, that by testator's said last will and testament, he had bequeathed certain annuities and legacies which he thereby varied: and then added, "And whereas I did by codicil give all the rest and residue "of my personal estate to trustees for the purposes therein " mentioned, I do hereby revoke and annul the said be<< quest, and do hereby give and bequeath all the rest and "residue of my personal estate to my executors, G. M. P. "and H. f. their executors and administrators, in trust, "that they shall after the payment of my pecuniary lega"cies, lay out the remainder in the purchase of lands in "Ireland, which residuum and lands shall be subject to the "like uses and trusts, provisoes and limitations, as are ex66 pressed in my said will, of and concerning my said estates in "the counties of Antrim and Carrickfergus therein devised "and limited to my great grandson Charles Crymble and his "issue in tail male," The testator died in 1775: and the executors having declined to act, and a suit having been instituted in the ecclesiastical court for administration to his will, a bill was 1803. ADAIR V. SHAW. filed by Charles Crymble the younger, praying that a proper person should be appointed to take care of the property of the testator until a legal representative should be appointed: but administration pendente lite having been in the year 1777 granted to Anne Shaw (who was the mother of Charles Crymble the younger, and at that time the wife of Francis Shaw) neither the suit in the ecclesiastical court nor that in equity was further proceeded in; but a compromise was entered into between Shaw and wife, and C. Crymble the younger, under which they paid him over the residue of the personal estate of C. C. the elder. In 1797, Charles Crymble the younger died insolvent, leaving issue two daughters only, and W. M. Crymble having died without issue, Charles Adair, who claimed an estate for life under the will of C. Crymble the elder, (to whom he obtained administration cum testamento annexo) together with his eldest son, Thomas B. Adair, filed this bill in 1798, against Shaw and his wife, the infant daughters of Charles Crymble the younger, and the executors, charging that the administration granted to Anne Shaw was obtained on the application of her husband; that he and his wife had possessed themselves of the personal estate to a large amount, and had by collusion with Charles Crymble the younger, compromised a suit which he had commenced for the purpose of having the assets applied in pursuance of the will of C. C. the elder, and had paid over the residuum to him: and praying an account of testator's personal estate and an application of the residuum after payment of debts and legacies, in the manner directed by the will. Mr. and Mrs. Shaw, by their answer to the original bill, admitted the will and codicils, and the administration granted to Mrs. Shaw, and that she had possessed herself of assets to the amount of 10,000; but alleged that they were claimed by C. C. for his sole benefit and use, upon the ground that |