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the death of the testator. The whole argument turned on 1803. the fact of the surrender of the lease and the grant of a CA
CANPBELL new lease to the quasi tenant in tail; and this was held to
SANDYS. bar, because the estate was altered. The quasi tenant in tail had gained the absolute interest at law, and there was no equity to constitute him a trustee for his own issue or for the remainder-man. I was of counsel myself in that cause : Baron EYRE was senior Baron and gave the judgment in the absence of the Chief Baron: Mr. Madocks and Lord ELDON were also of counsel in the cause ; and I am persuaded that no such idea was entertained either by the court of Exchequer, or by any of the counsel concerned as that the will would have operated to bar the plaintiff. Few persons were better acquainted with decided cases, and especially those decided in his own time than Mr. Madocks ; and if that point had ever been decided by Lord NORTHINGTON, we should probably have heard of it from him. On principle I think it impossible that a will can have that effect. A will, so far as it is a disposition of property, is a designation of a special heir against the right of the person to whom the property would otherwise come by what may be called devolution of law : but that cannot from the nature of the instrument have the effect of depriving of a right a person who does not claim by devolution of law, but by virtue of a pre. ceding gift or instrument. That must have been the ground on which it was established that the will of a joint-tenant cannot sever the jointure. It is an instrument by which the maker is enabled only to bar his heir át law or representative, but which cannot be allowed to alter the rights of third persons(a).
(a) So, although a husband may by act inter vivos charge or dispose of the chattels real of his wife, his will would not be suffi. cient to bind the wife surviving.
I have looked into the case of Prichard v. Quinchant, Amb. 147. It is a very loose note of a case in which there appears nothing more in Ambler than some shortobservations of Lord HARDWICKE applied to a very ill-drawn instrument. · The case came afterwards before the court on an amended bill, on the 21st July 1753, and Lord HARDWICKE was of opinion that the settlement ought to be rectified according to the instructions, as against volunteers. On the construction of the settlement itself in favour of the mortgagee and creditors, he conceived nothing was given to the children but by virtue of an appointment, as in the case of the duke of Marlborough y. Lord Godolphin, 2 Ves. 61, so that the words of the settlement in Ambler are probably incorrect.
LARGAN v. BOWEN AND OTHERS.
Dec. 23. Bill filed by THE bill was filed in the year 1798, by the plaintiff, creditor on behalf of himself who was a legatee in the will of George Hartpole deceased, ditors, and a
- to have his legacy satisfied, and that such creditors and le
co receiver ap gatees as should come in under the decree should be paid pointed : the receiver shall out of the estate of said Hartpole, in which the defendants not be dis. Bowen and Lecky had respectively life-estates in right of charged upon the consent of the plaintiff, against the consent of an incumbrancer, who is a party defendant. An al. legation that such incumbrance was satisfied, referred to the master. So although an incumbrancer were not a party, nor had proceeded in the suit, and was obliged to file a new bill, yet Sembl. the court would not discharge the receiver, and would direct that such bill should be taken as filed at the same time with the former,
their wives under Hartpole's will. Hovenden (who had a charge on the estate) and Doran his assignee were made parties in the progress of the suit, and a receiver had been appointed by consent. The defendants Bowen and Lecky afterwards came to an agreement with the plaintiff and the other parties (except Hovenden and Doran) and obtained a consent from them that the bill should be dismissed. Upon these consents and also upon an alleged consent of Doran, the defendants Bowen and Lecky moved at the rolls that the bill should be dismissed ; but that consent appearing to be invalid, the Master of the Rolls refused the motion. There being a balance in the hands of the receiver, Bowen and Lecky then moved that this balance should be paid to them, and obtained a conditional order: at the same time, Doran moved on a cross notice, that this balance should be paid to him in liquidation of his demand, and that the bill should be retained, with liberty for him to carry on the cause upon indemnifying the plaintiff, and that the receiver should be continued, which motion the Master of the Rolls refused, and thereupon Doran appealed to the Lord ChanÇELLOR.
At the same time that Doran's motion came on, Mr. Wm. Johnson and Mr. Radcliff moved on behalf of Bowen and Lecky to discharge the receiver. They stated that Dosan had in fact no claim on the estate ; that whatever claim Hodenden originally had, had since been satisfied; and that Doran notwithstanding continued to retain the title deeds in his hands to the prejudice of the estate. They insisted that if these circumstances appeared on a motion to appoint a receiver at Doran's instance, the court would refuse the application, and therefore it will not now continue the receiver at the instance of Dorun alone ; it is the established practice of the court, that a defendant shall not be allowed to take up a cause until after a decree to an account, and a creditor is Vol. I.
1803.. not until then obliged to relinquish his proceedings at law; LARGAN
Rush v. Higgs, 4 Ves. jun. 638 : therefore Doran may still v. proceed at law, and if so, it is not matter of course, but
discretionary in the court to let him in here ; and under the circumstances the court will not think him an object of favour ; especially as the estate is so ample that Doran stands in no need of a receiver to secure him.
Lord CHANCELLOR. It is much more important to attend to the general admi. nistration of justice in this court, than to the interests of any particular parties; the claims of Mr. Doran and Mr. Hovenden may possibly be liable to very great objections ; and with respect to what is stated against them I shall direct inquiry. But here they were made parties as having incumbrances (though I do not much advert to that circumstance) : Suppose they were creditors ; If they were creditors who had lain by and not proceeded in the suit at all, and that a receiver had been appointed and the property taken out of the hands of the tenants for life; I should think it would be justice to such creditors, (though I might compel them to file a new bill) to put them as far as I could in the same situation as if they had not been depending on the faith of these proceedings ; that is, not to discharge the receiver, and to give them leave to file a bill which should be taken as a bill filed in 1798. (It was stated at the bar that a bill had been filed by Hartpole in his life-time to impeach Doran's demand, which had abated by his death.) Then I can direct that Doran shall consent that that bill shall be taken as revived, and then the whole case will be before the Master. It is very necessary that good faith should be kept in the prosecution of proceedings of this nature, otherwise estates would be ruined by a multiplicity of suits ; this is the principle on which the court
allows persons having charges on estates to file bills for
The case in 4 Ves. jun. was one of a different description from the present. There the creditor brougl t an action at law against the executor ; if he could prosecute that action with effect and become a judgment creditor before the decree, he would have a priority against the personal assets, which priority the court would not allow him to obtain after the decree. Courts of equity will not restrain proceedings of creditors at law against executors to obtain payment of debts merely on a bill filed by other creditors to carry the trusts of the will into execution, until there is a decree: but from the moment of the decree the court proceeds on the ground that the decree is a judgment in favour of all the creditors, and that all ought to be paid according to their priorities as they then stand(a); and that the court cannot execute its own decree if it permits courts of law to alter the course of payment.(6)
(a) Vid. acc. Wortley v. Birkhead, 2 V'es. 571.
(d) Vid. Morrice v. Bank of England, Cas. Temp. Talb. 217; Mar. tin v. Martin, 1 Ves 211 ; Brooks v. Reynolds, 1 Bro. C. C. 183; Goate v. Fryer, 3 Bro. (. C. 23; Hardcastle v. Chettle, 4 Bro.C. C. 163.