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1803.

ADAIR

V. SHAW.

“ of this cause, subject to the further order of the court ; “and if they shall admit assets of the said Francis Shaw, “ then let what shall appear to be coming on the account " aforesaid from his estate be paid by the said defendants “his executors in like manner: and if they shall not ad“ mit assets, then let what shall appear to be in their hands “ of his assets be paid by them in like manner: and in “ taking the said accounts let the master distinguish what

was due for principal and interest of the personal estate “ of the said testator Charles Crymble the elder at the “time of his death, from interest accrued after his death, “ and what was due for principal of debts, and interest, ac“ crued previous to his death, from interest accrued after his “ death : and declare that the interest of debts accrued after “ testator's death, and also the interest of legacies ought “ to have been paid out of the interest of the personal estate " accrued after testator's death, and that the clear surplus “ which ought to have been applied in the purchase of “ lands and settled as aforesaid consisted of the principal of “ debts and effects of the said testator and interest and

produce thereof accrued at the time of testator's death, " after deducting thereout the principal of debts due from “him, and interest accrued due thereon at the time of his “ death, and the funeral expenses, expenses of administra“tion, and other just expenses, and the principal of " legacies given by his will: and inasmuch as the said Charles Crymble the younger appears to have executed “ such release to said Francis Shaw as in the pleadings men

tioned, the master is not to take any account of the in

terest of the surplus of the testator's personal estate ac« crued after the testator's death in the life-time of the " said Sharles Crymble the younger beyond the sum necessa

ry for payment of his debts and legacies accrued during the

same period. And declare the plaintiff Charles Adair en" titled to interest of the clear surplus from the time of the

1803.

ADAIR

V. SHAW.

“ death of Charles Crymble the younger so far as property

of the testator remained in specie, (if any); and that the “ estate of the said Francis Shaw is chargeable with interest “ from the death of the said Charles Crymble the younger as

to the balance of capital of surplus which shall be found

to have come to the hands of the said F. Shaw and wife " in the life-time of the said Francis Shaw; and the de“ fendant Anne Shaw with the interest of the balance in her "hands, if any; and let the master also take an account of " the personal estate of the testator which came to the hards “ of the plaintiff Charles Adair as the administrator with “the will and codicils annexed of the said testator, and “ also of his payment for administration and other expenses;

and ascertain the balance due from or to him as admi“ nistrator as aforesaid ; and reserve further directions, and “ particularly directions with respect to the said Anne Shaw “ in case the personal estate of the said Francis Shaw shall “ not be sufficient to pay the money which shall be reported “ due from his estate, and also the costs of this suit till return a of the report."

July 31, 1804.

THIS cause came on for further directions upon the master's report, which stated the personal estate of the testator to have amounted to the sum of 11,918). 8s. 1d, the entire whereof had come to the hands of Francis Shaw and his wife in the life time of Francis. It stated payments of debts by Francis and Anne to the amount of 6831. 16s. 2d. and of legacies to the amount of 4,0511. 138. 4d. that the estate of Francis was chargeable with a balance of 7,1821. 188. and that no payment had been made by Anne since the

1804.

ADAIR

V. SHAW.

death of Francis : that the executors of Francis had not since his death paid any part of the personal estate of the testator C. Crymble to Anne, and that no part of the said estate had remained in specie, or had been kept distinct, or had come to her hands since the death of Francis. It stated the personal estate of Francis Shaw to amount to £.4,182. exclusive of two chattel leases, the value of which was not then ascertained; his debts (including the above balance) to amount to £17,826: 10:0, and the legacies given by his will 6.3,520. It stated that no part of the personal estate of C. Crymble the elder had come to the hands of the plaintiff Charles Adair as his administrator.

It stated the amount of the personal estate of C. Crymble which ought to have been applied pursuant to the will, with interest to the time of the report, to be £.10,092: 0:9 1-2. And the balance in the hands of the executors of Francis Shaw, of his assets after payment of certain debts (and exclusive of said leases) to be £.3,824: 3:11 1-2.

The Solicitor General for the plaintiffs, then prayed that the fund of £13,824: 3:11 1-2. should be paid in liquida tion of the plaintiff's demands; and that the chattel interest should be sold and the produce applied in the same manner; and for the residue he sought a personal decree against Mrs. Anne Shaw.

The Lord CHANCELLOR said, that as to creditors she would be clearly responsible, and that the inclination of his mind was to hold her responsible in the present case also; inasmuch as, although under the controul of her husband still her taking administration was a voluntary act; she might have refused it.

1804.

But some disposition appearing on the part of the plaintiffs to give up their claim against Mrs. Shaw, his lordship was not pressed to decree on this point.

ADAIR

SHAW.

Mr. Ball prayed the costs of the executors of Charles Crymble the younger.

Executors of Lord CHANCELLOR. It is a settled rule that the executors an insolvent

of an insolvent shall not have costs; to allow them would be shall not have. costs.

productive of the worst effects: they need not have administered.

$

The decretal order directed the sum in the hands of the executors of Francis Shaw to be paid to the credit of this cause, and that the leasehold estates should be sold and the balance paid in like manner, and that the executor should account for the rents : and that the master should take an account of the balance remaining due after giving credit for all such sums ;

“ And reserve the consideration how far 4 said Anne Shaw is answerable for such balance, until the master's reports and the plaintiffs to be at liberty to lay 4 proposals before the master for investing said balance in “the purchase of land, as if actually received by them, " and without prejudice to the question whether the said “Anne Shaw -is liable to answer the deficiency of the

personal estate of the said Francis Shaw to answer the plaintiff's demand.”

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Reg. Lib. L. 105.

1803.

CAMPBELL U. SANDYS.

Dec. 21, 23. THE ATTORNEY GENERAL on behalf of the plain- By articles retiff, moved for a receiver, stating that it was agreed by the lating to leases,

pur auter vie, parties to let the question in the cause abide the event of and for years,

and to money, that motion.

it was agreed that said leases

for lives and for David Campbell the elder, the father of plaintiff's late years should be husband, being seised and possessed of certain premises, conveyed to

trustees, in part held by leases for lives renewable for ever and part by trust (after suc

cessive life es. leases for long terms of years, entered into articles bearing tates to D.C. date the 6th of June 1771, entitled “ Heads of a settle- and F. C.)

" after the dement agreed to be made and entered into by and between "cease of 7.C. “ the said David Campbell, John Campbell, son and heir • 9. and A.C.

in such apparent of the said David, and Anne his wife,” (the

« shares and present plaintiff) whereby, after reciting that David Camp- « proportions bell was possessed as aforesaid, and that Anne Campbell had as the said y.

“ should apbecome entitled to a legacy of 1,800.. of which 1,000l. point, and had been put out and then remained at interest for her use such appointfor life, and that the remaining 8001. had been paid to

“ ment to go to

“such children John Cambell for his own use : and that John Campbell . equally share having a present occasion for the sum of 500l. all parties alike, and had agreed to call in said sum for his use and benefit. It “for default

« of such issue

“to the heirs, “ executors and administrators of said F. during said leases: the money or the “ lands agreed to be purchased there with to go to the issue of said 7. and A. in such "shares and proportions, &c. and for want of such appointment to be equally di“ vided among such children, share and share alike; and if no children of said “ marriage, or all should die before twenty-one," then a power to dispose of said money. Held, that issue is to be construed children, and that the issue of 7 A. took the absolute interest in the chattel property and a quasi fee in the freehold property. That a quasi estate tail cannot be barred by will, Semble.

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