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vidend ; if there be enough, all must take alike in the future dividend.
WHEELERO a Bankrupt.
(a) Vid. Ex parte Peachy, 1 Atk. 111 ; Ex parte Styles and Pickart 1 Atk. 208; Ex barte Long, 2 Bro Ch, C. 50.
ADAIR v. SHAW.
Nov. 22, 23, 25.
Dec. 12. CHARLES CRYMBLE the elder on the 27th March Feme covert 1766, duly made and published his last will and testament, nistration, and whereby, amongst other things, he devised to trustees (there, the goods are
wasted during in named) estates in fee in the county of Antrim and county the coverture; of the town of Carrickfergus, to the use of his great grand- the husband
dies ; his assets son, Charles Crymble, for the term of his natural life, re, are chargeable mainder to trustees to preserve contingent remainders, and in equity for
the waste com. from and after the decease of Carles Crymble to the use of mitted during
the coverture. the first and other sons of the said Charles Crymble succes
Whether the sively in tail male ; and for want of such issue of the said wife surviving
shall not be Charles Crymble then to the testator's great grandson charged, if asWilliam Magee Crymble, for his natural life, remainder to sets of the hus.
band prove in trustees to preserve, &c. and from and after his decease to sufficient Qu.
Sembl. that the use of the first and other sons of the said W. M. C. in she shall. tail male; and for want of such issue of the said W. M. C. then to the use of the testator's grandson, Charles Adair, 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 Charles Aduir in tail male, with remainders over. The testator also devised his estates in the
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 Ruleagh, 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 “ powers as my said estates in the county of Antrim, &c.
are by the within will devised and limited to the said “ Charles Crymble the younger, Wm. M. Crymble respec“tively and their respective issues, and the said other per“ 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 amnuities 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. /. 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 ex“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 1975: 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
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 Sharo) 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. Crymblė 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 adıninistration 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 10,000l. ; but alleged that they were claimed by C. C. for his sole benefit and use, upon the ground that
if they had been laid out in land he would have been, under the construction of the codicils, entitled to the absolute dominion thereof. They further stated, that C. Crymble had in the year 1790, filed a bill for an account of those assets, of which bill, as well as of his own rights under the will, the plaintiff Charles Adair was fully conusant, yet never interfered to prevent Mrs. Shaw from paying over the residuum to G. C. the younger ; that she was advised and believed the whole interest therein vested in C. C. under the limitations in the will and codicils, and therefore had acceded to his demand, had settled amicably with him, and obtained a release from him in 1793, which was insisted on as a bar to the plaintiff's claims. After this answer was put in, Francis Shaw died, and in 1801 the cause was revived against his executors, charging that the assets had come to his hands, and had been applied to his use, and praying that his executors should admit assets of their testator sufficient to answer the plaintiff's demands, or that an account thereof might be taken. The executors set out the debts and assets, but insisted that Anne Shaw alone had ad. ministered the assets of C. C. the elder, and had paid them over, and inasmuch as Francis Shaw was not joined with his wife in said administration, and never intermeddled therein, they insisted he could be chargeable only as the husband of said Anne, and as liable to her debts ; and that no judgment or decree having ever during the coverture been obtained against him for such debt, his assets could not now be made responsible. It was admitted that Mrs. Shaw had not estate sufficient to answer the assets of Charles Crymble the elder, and Charles Crymble the younger had died insolvent.
As to the fact, whether Francis Shaw had or had not acted together with his wife, there was evidence on both sides : the instrument conveying the residuum to C. Crymble the