every confidence, and to the intent and purpose that they, the said Robert Foley and Abraham Turner, and the survivor of them, and the executors, administrators, and assigns of [*] such survivor, should yearly and year receive and take the rents, issues, and profits of all and every the manors, messuages, lands, tenements, and hereditaments, comprised in such terms respectively; and should, from time to time, fell and cut down so much and such parts of the timber, wood, and underwood, growing upon or within the said manors, &c. as they, or he survivor, or the executors, administrators, or assigns of such survivor in his or their judgment and discretion should think proper to be fallen, not exceeding, in any one year, the clear sum of 3000l. (without defacing or disfiguring the ornamental plantations in or near his several capital mansion-houses of Witley and Stoke aforesaid,) and to pay, apply, and dispose of so much of the money arising therefrom, as would be sufficient, (with the rents and arrears of rents of the said premises comprised in the said terms, that should be due at his decease, which he gave and bequeathed to them the said trustees as aforesaid) in manner following, that is to say, in the first place, according to their will and pleasure, and not otherwise, to allow yearly and every year, or oftener, to or for the use or benefit of his said two sons, Thomas (now Lord Foley) and Edward Foley, any sum or sums of money, not exceeding, in the whole, in any one year, the sum of 6000l., until such the debts of the said Thomas (now Lord) Foley, and Edward Foley, as therein provided for, and should be due at his decease, were first paid and discharged, but so as his said two sons, or either of them, should have no estate, right, title, claim, or interest in the rents, issues, and profits of his said manors, messuages, &c. comprised in the said terms, for and during the respective lives of his said two eldest sons, and the life of the survivor of them, than the said Robert Foley and Abraham Turner, and the survivor of them, and the executors, administrators, and assigns of such survivor, should, in their absolute, free, and uncontrouled power, direction, and inclination, think proper and expedient, any thing contained in his said will to the contrary thereof in anywise notwithstanding; and in the next place thereout to pay so much and such part of the principal and interest due upon a mortgage, by him and his said eldest son made to Robert Child, Esq. bearing date the 2d of July 1773, as should be unsatisfied at his decease; and in the next place thereout to pay and discharge all such debts of his said two eldest sons, Thomas Foley and Edward Foley, and the interest due thereon respectively, as in any schedule or schedules thereunto annexed, or in any other schedule or schedules by him thereafter to [*] be made and subscribed, should be contained, or as they the said trustees, in their judgment and discretion, should think fit and expedient, but so as no one of the creditors of his said two sons, Thomas Foley and Edward Foley, other than such whose debts should be so scheduled, should have a lien upon, or power over, any of the manors, messuages, lands, tenements, and hereditaments, comprised in the said several terms of 99 years and 101 years, or in either of them, or on the timber growing thereon, or on the money arising or to arise thereby, in any manner whatsoever; and after the decease of the survivor of his said two eldest sons, the payment of the mortgage money, and of all the said scheduled and other debts herein before mentioned, and also of the costs, charges, and expences of the said Robert Foley and Abraham Turner, and the survivor of them, and the executors, administrators, and assigns of such survivor, (which he thereby authorised and enabled them to deduct and retain from and out of the rents and profits of the said manors, &c. comprised in the said terms) his will was, that the said terms should wait upon and attend the inheritance of the said manors, messuages, lands, tenements, and hereditaments comprised therein. VOL. II. 1787. DAVIDSON against FOLEY. [*206 ] [ *207 ] 1787. DAVIDSON against FOLEY. [ *208] [209] And the testator, Thomas Lord Foley," in case his personal estate should not be sufficient to pay and discharge the legacies in his said will mentioned, thereby subjected and charged all and every the manors, messuages, &c. thereinbefore mentioned, given and devised to him by the said Thomas Lord Foley, and not thereby devised to be sold, with the payment of so much thereof as his personal estate, not specifically given, should fall short and not be sufficient to pay; and then he gave and devised all that the manor or lordship of Broughall, and all and every his messuages, lands, tenements, and hereditaments in the county of Stafford, and also all his manors, messuages, lands, tenements, and hereditaments in the.county of Gloucester, not thereinbefore by him devised, and also all his freehold messuages, lands, tenements, and hereditaments in the County of Middlesex (his capital mansion of Foley House, in the said county, with all and every its appurtenances, excepted), with their and every of their respective rights, members, and appurtenances, to, and to the use of the said Robert Foley and Abraham Turner, their heirs and assigns, in trust, to sell the same, at the best prices that could or might be had or gotten for the same, and to apply and dispose [*] of the money arising and to arise by such sale, (after discharging the said mortgage, and their own costs and charges attending the said trust) in payment of his legacies and annuity, and afterwards in payment of the debts mentioned in the said schedule, in the same manner as the money arising and to arise, under and by virtue of the terms of 99 and 101 years, is directed to be applied and disposed of; and appointed his son Andrew Foley, his daughters Grace Lady Clanbrassil, Mary Foley, and Ann Winnington, together with his said brother Robert Foley, and the said Abraham Turner, executors and executrixes of his said will." That the schedule referred to by his said will, was to the purport set forth in the schedule to the plaintiff's bill annexed. That Abraham Turner having died in the life-time of the testator, he, on the 17th of February, 1777, duly made and published, as by law is required to pass real estates, a codicil to his said will, whereby he ap pointed his son Andrew Foley a trustee in his room. That the testator, Thomas Lord Foley, died on the 14th of November 1777, leaving the said Thomas, now Lord Foley, his heir at law, without having altered or revoked his said last will, except by the said codicil, and without having altered or revoked the said codicil; and the said Robert Foley and Andrew Foley duly proved the same, and the said Andrew Foley alone acted in the execution thereof. That the plaintiffs (great arrears being due on their aforesaid annuities, that is to say, 10251. to the plaintiff Duncan Davidson, 2050l. to the plaintiff William Gemmell, 1000l. to the plaintiff John Clarke, 1000%. to the plaintiff George Farquhar Kinloch, and 1512l. 10s. to the plaintiff William Brodie, respectively arrears of their annuities) caused a memo rial of their said securities to be enrolled according to law, and afterwards procured writs of scire facias to be issued, for the purpose of reviving the said judgments; and the defendants Thomas (now Lord) Foley and Edward Foley being duly served therewith, and the plaintiff William Gemmell having brought into court the letters testamentary of the said Robert Gemmell, the plaintiffs Duncan Davidson, William Gemmel, John Clarke, George Farquhar Kinloch, and [*]William Brodie, severally had judgment for their respective debts and damages aforesaid. That the plaintiff Duncan Davidson, and the other plaintiffs, having such sums of money due to them as aforesaid, secured by the aforesaid judgment, on or about the 11th of October, 1786, sued out of the said Court of Common Pleas several writs of elegit, directed to the sheriff of Herefordshire, against the goods and chattels of Edward and Lord Foley, or either of them, and a moiety of all the lands and tenements of the their the said Edward and Lord Foley, or either of them, in his bailiwick; and That immediately after the death of the said testator Lord Foley, his executors entered upon and possessed the lands, tenements, and hereditaments devised to them as aforesaid, and they, and the survivor of them, Andrew Foley, hath ever since been in the perception of the rents and profits thereof, except such parts of the said estates, devised to be sold, as have actually been sold; and by the sale of some part of the said lastmentioned estates, and the rents, issues, and profits of all the others, the said trustees, and the survivor of them, have paid off and discharged the said mortgage to Robert Child, the debts enumerated in the schedule to the testator's will, and all other the debts of Thomas (now Lord) Foley and Edward Foley, which they, or [*] either of them, owed at the time of making the said will, except the debts due to the plaintiffs. The plaintiffs therefore charged that the will of the said testator Thomas Lord Foley, as far as it endeavours to enable the trustees to pay to the said Thomas (now Lord) Foley and Edward Foley the sum of 6000/. per annum, or any part thereof, is a fraud upon the law and upon the plaintiffs and other the creditors of the said now Lord and Edward Foley; and that they, since the return of the aforesaid inquisition, had given the aforesaid Andrew Foley notice thereof, and desired him not to pay any part of the said 6000l. per annum to the said Thomas (now Lord) Foley and Edward Foley, or either of them. They further stated, that the said Robert Foley, one of the trustees, departed this life in February 1783, having made his last will, and appointed Ann Foley, his widow, his sole executrix, who duly proved the same; and at the time of his death he had in his hands a considerable sum of money, the produce of the said trust estates; and that the said Andrew Foley and the said Ann Foley have in their possession a considerable sum of money, the produce of the estates devised to them in trust as aforesaid, not applied to the purposes of the said trust. The bill therefore prayed an account, and if all the aforesaid debts are paid that then the said terms might be declared to be possessed by the said Andrew Foley in trust to attend the inheritance, and that the said Andrew Foley be restrained by injunction from setting up the terms to defeat any action, ejectment, or other remedy which the plaintiffs may be advised to pursue for recovery of the sums of money due to them as aforesaid, and that they may not be allowed the payments made to Thomas (now Lord) Foley and Edward Foley, upon account of the said 6000l. respectively, such as have been made since the service of the notice hereinbefore mentioned; and for further relief. To this bill the defendants, Andrew Foley and Ann Foley, put in a general demurrer, because they say that the plaintiffs have not shewn any title in equity to the discovery and relief thereby prayed. [*] Mr. Price, Mr. Mansfield, Mr. Poole, and Mr. Richards, (in 1787. DAVIDSON against FOLEY. [ *210] [*211] 1787. DAVIDSON against FOLEY [ *212] support of the demurrer). The plaintiffs are all creditors of Thomas (now Lord) Foley, and Edward Foley, the two eldest sons of the late Lord Foley, on account of annuities purchased by them, at the rate of seven years' purchase for both lives. They have entered up judgment, which they have revived by scire facias, and sued out writs of elegit to take possession of the whole personal, and half of the real estates of Lord Foley and Edward Foley, and now have filed this bill against them, the surviving trustee, and the widow of the deceased trustee in the late Lord Foley's will, praying that the lands may be delivered to them, as tenants by elegit, and that the trustee may be restrained from setting up the trust terms against any ejectment they may bring to obtain possession of the lands. To this bill the defendants, the surviving trustee and the executrix of the deceased trustee, have put in a general demurrer, because the plaintiffs have not shewn that they have in equity any right to the discovery or relief prayed. The first question will be, whether Lord Foley could dispose of the estates in this way; 2dly, whether the mode in which he has done it gives Lord Foley or Edward Foley any right in the estate. The bill alleges that the will, as far as it allows the said trustees to pay the rents to Lord Foley and to Edward Foley, is a fraud upon the law and upon the plaintiffs: but this cannot be so; Lord Foley might certainly dispose of the estate in such a way as to prevent his sons from taking any interest in it; there could be no fraud upon the law in giving such an estate as should not be liable to the debts they might contract; he might have put it into the power of the trustees to give his sons what they pleased. - The terms were intended to exclude the sons from taking any estate during their lives; for which purpose, it was provided that the terms should not attend the inheritance until after their deaths. The circumstances under which they stood, called upon the late Lord to prevent their taking any estates during their lives, because, as soon as they came into possession, they would be left without any provision. He meant, therefore, only to give them such a provision as the trustees should think proper: no resulting trust was intended to them, and without an intention that there should be such, no resulting trust could arise, 1 Atk. [*] 619. then none would arise contrary to the testator's intent. It is said, 6 Bro. P. C. 489. that in resulting trusts, the nature of the case, and not any rule of law, must be the rule of the court. According to the will, the trustees were yearly or oftener to allow the sons any sum, not exceeding 60007. in any one year, until the scheduled debts should be paid, but so that his sous should not have any estate, right, title, &c. in the rents of the estates, during their respective lives, other than the trustees should think expedient. After their decease, and the payment of the scheduled debts, the trust was to attend the inheritance; the intent therefore was, that it should not attend the inheritance sooner than their deaths, that nothing should ever vest in them. There is also a negative upon any creditors but the scheduled creditors having any interest; it may be different as to the sons themselves, and as to persons claiming under them, they may have a right to know that the fund is applied, and might perhaps be entitled to come into this court, for the purpose of seeing that it was preserved; but this will not extend to any creditors except those in the schedule. As to themselves, they could not compel the payment of a farthing. When they should be dead, a question might arise as to the intermediate rents and profits; the representatives of the sons might probably have a right to them; but that will not, contrary to the intent of the testator, deprive the trustees of the right of accumulating them in the mean while. With respect to the writs of elégit, the plaintiffs make out their rights merely merely under the elegits, but the inquisition does not describe any extendible interest within the stat. of 29 Car. 2. Nothing was the object of that act but what might be taken into possession or pernancy of profits. A legal estate in reversion, could not be extended, and the statute only put trust estates into the same situation with similar legal interests. The 10th section of the stat. is, that the sheriff night make and deliver execution of the trust estate, like as he ought to have done, if the party against whom the execution is sued, had been seized of the premises of such estate, as they are seized in trust. A dry reversion in a legal estate was not subject to an elegit; so the dry reversion of a trust could not. The statute assimilates it to a trustee dying, leaving assets by discent, that must be an estate in possession. [*] The inquisition states, that Edward Foley was possessed of an equitable estate in the residue of the term, and then goes on to state, that he was seised for life, in his demesne, as of freehold, subject to the said term and the trusts thereof; so that it is uncertain whether the terms were to be delivered over as the residue of a term, or as a freehold estate. The statute therefore cannot extend to this interest, of which no possession can be given; and the creditors have no interest in the estate, an account of the rents of which they claim. sons; -- Lord Chancellor. I cannot doubt it. I would not willingly break in upon any power given by a father, to control the extravagance of his I would rather extend those powers than control them. But, in the present case, the question is, whether the uses for which the trust was created being exhausted, (as it must be taken they are,) a trust does not result to the tenants for life? It has been ingeniously argued, that there are trusts extending beyond their lives, and that, if those trusts are sufficient, the sons are to have no interest during their lives. The nature of a resulting trust is, that it is such as escaped the intention of the testator: and here, the intention of raising a trust beyond the payment of the scheduled debts is so totally unexpressed, that no trust can be raised upon the terms used. If there were words to give the trustees a further power of disposing of the rents and profits for any further purposes, I should have been glad to have taken hold of them. The rule of law is, that, where the trusts of a term are exhausted, a trust results, for want of a further disposition, to the legal tenants. In my judgment, these must now be resulting trusts, and therefore they must go to the tenants for life. The discretion of the trustees should be extended, against such plaintiffs as these, as far as possible, if there were such grounds as would apply to other cases as well as this. I do not see what they expect to gain by their bill: but I cannot stop them at this period of the cause. Demurrer over-ruled. (2) (2) See this case at the hearing, post. 3 vol. 598. 1787. DAVIDSON against FOLEY. [ *213 ] [*] KENRICK against CLAYTON. [13 June.] (Reg. Lib. 1786. A. fol. 452.) [214] [Vide S. C. 2 Dick. 685.] A MOTION had been made in this cause, for time to answer. Upon Upon time the expiration of the time, a demurrer was put in. It had been re- granted to answer only, a demurrer (though only to part, and answer to the rest) shall not be put in. (1) (1) See Taylor v. Milner, 10 Ves. 444. Mann v. King, 18 Ves. 297. and Edmonds v.. Savery, 3 Merivale, 304. L 3 ferred |