CASE.

E G. being seized in fee of a real estate, by indentures of lease and release, dated in or about September laft, grants and conveys the fame to A. E. and his heirs, fubject to a provifo to be void on payment of 1100l. and intereft at a certain day therein mentioned, which is yet to come; and having the right or equity of redemption to faid premiffes, by his will dated 13 November, 1758, expreffes it to be his will and defire, that all his juft debts that he should owe at the time of his decease, fhould be duly paid by his executrix therein named, and then gives, devises and bequeaths, all his real and perfonal eftate, which was not then by any fettlement or other writing fettled upon his wife, and which he purchafed fince his intermarriage (except as therein mentioned) unto his wife E. her heirs, executors and adminiftrators, for her to difpofe of as she should think proper, by any deed, will or other writing, subject to the payment of his debts as aforefaid; and appoints his faid wife executrix, and foon after died.

Teftator at the time of his decease, was indebted to several perfons upon bonds in feveral fums amounting to 2000, or upwards, and it is computed, that his real and perfonal affets, will not be fufficient to fatisfy the said debt on mortgage and the said bonds.

He alfo died indebted to feveral other perfons, to the amount of 600l. or upwards, upon fimple contracts.

Mrs. G. the executrix has renounced her right to the probate and execution of the faid will, and thereupon adminiftration of the goods, chattels and credits of the teftator, with the will annexed, was granted by the confiftorial court of the bishop of L. and C. to his brother I. G.

Query. Whether the money arifing by fale of the teftator's real eftate, ought to be applied by the devisee in discharge only of the teftator's debts owing upon fpecialties, in cafe fuch debts fhall exhauft the whole; or whether, as équitable affets, it ought to be applied in difcharge of the teftator's debts in general, as well thofe owing on fimple contract, as by fpecialties, without preference to the fpecialty creditors? Or will it be neceffary for the devifee to have the directions of a court of equity, as to the application of the money raised by fale of faid eftates?

Opinion.

Opinion. The bond creditors are entitled to a preference out of legal affets; but for the equitable affets, they fhall be equal only with the fimpie contract creditors.

Lincoln's Inn, 16 Feb. 1759.

G.

CAS E.

Stephen Gardiner.

M. being feized in fee, by will dated 19 April, 1755, devised to truftees to the following ufes; viz.

Intereft for his grandson G. eldest son of his fon R. in tail-male -Remainder.

Intereft for R. fecond fon of his faid fon R. in tail-male-Remainder.

Intereft for the third, fourth, fifth, and all other fons of his faid fon R. in tail-male fucceffively-Remainder.

Interest for all and every the daughter and daughters of his fons R. and W. as tenants in common-Remainder.

Intereft for his faid fon R. for his life-Remainder.

Intereft for his faid fon W. for his life-Remainder.

Intereft for teftators right heirs for ever.

Mich. term, 11 Geo. 3. 1770. A common recovery with double vouchers was fuffered, wherein C. was demandant, F. tenant, and R. the teftator's fon, and G. his grandfon, vouchers of the eftate fo devifed as aforefaid.

R. the father of G. the tenant in tail is joined as voucher in the recovery, tho' he had nothing but an eftate in remainder under his father's will, but faid R. did not join in the deed to make a tenant to the precipe.

Query. Is this recovery good, fo as to have the iffue of G. and all remainders over; and whether, upon the whole, it would not be prudential (if not absolutely neceffary) for a purchaser to take a new recovery, wherein the tenant to the precipe fhall vouch G. the tenant in tail alone, who shall vouch over the common vouchee in the ufual form? And may a purchaser take a good title under the facts above stated?

Opinion.

Opinion. I think this recovery is good to cover all fubfequent eftates, to that of G. teftator's grandfon, for G. would lofe his eftate-tail, and the recompence in value would defcend as the eftate ought to have done. R. had nothing in the tail, but his remainder would barred merely by operation of law; and his being called upon, would, I conceive, be rejected, as nugatory and void. Notwithstanding this, I would not be underftood to recommend a title to a purchaser, that poffibly may afford foundation for litigation; and therefore, to remove every difficulty, it would be highly prudent to take a new recovery, which muft, on account of the difcontinuance, be with double vouchers in the manner abovementioned; that is, for the tenant to vouch G. alone, and G. the common vouchee ; I obferve nothing elfe to raise a doubt upon the title, if G. be unmarried, and his grandmother dead.

June 25, K. in confideration of a marriage intended between I 1673 A and B. and other confiderations, fettles a meffuage and lands at M-in Derbyshire, upon himself for life; then to faid A. for life, for her jointure, and after the decease of the survivor, to the use of the heirs male of the body of the faid I. upon faid A. lawfully begotten; on failure of fuch iffue, to the ufe of the faid I. K. his heirs and affigns for ever.

Agust 5, 1770. By indentures of feoffment executed by livery of feifin, I. K. the father, and I. K. the fon, for valuable confiderations, conveyed the aforesaid meffuage and lands (without fine) unto H. I. and his heirs.

I. K. the father of A. his wife, and I. their fon, have all been dead above twenty years; I. K. a grandfon is now living, and about thirty. Query. As faid H. I. and 7. his fon have enjoyed the faid estate under the faid indenture of feoffment, upwards of forty years, without any claim or entry, is not the faid eftate-tail thereby difcontinued, and the grandfon barred by the ftatute of limitations? And I. T. wanting to borrow money, may he not mortgage the fame ?

Opinion. I apprehend, 1. K. the grandfon's right of intail under the fettlement of 25th June, 1673, is not barred by the sta tute of limitations, and notwithstanding the long poffeffion of H. and I. T. the purchasers, as the ftatute of limitations can no ways affect a right till it accrues, and till neglected for the time limited, and as I. K. claims under an intail which would not take place till the death of the grandfather and

grand

grandmother, when, from the ftate of this cafe, I. K. the grandfon was an infant and continued fo several years after, his right feems yet preferved by 2d feet. of flat. 21 Jac 1. c. 16. whereby a space of ten years after full age is allowed in cafe of infancy to preferve fuch right, which in this cafe does not appear to be fully expired.

August 31, 1741.

Μ'

C A S E.

T. Coke.

R. T. Mr. H. and Mr. G. have agreed for the purchase of the B- - eftate each of whom are to advance an equal share of the purchase-money, and to have an equal share of the estate.

Mr. T. is a widower, and Mr. H. and Mr. G. being both married, 'tis imagined if the faid eftate is vefted in either of them by the conveyances, their wives will be entitled to their thirds, and that the parties will be put to the expence of levying fines in case they fell off any part of the premiffes.

Query. In what manner would you advise the estate to be conveyed to the purchasers ?

Opinion. I think the eftate fhould be conveyed to the three purchasers and their heirs, as joint-tenants, and that they fhould declare the truft by a feparate deed, and thereby make themselves tenants in common of the equitable estate. By this method, they will avoid giving a right of dower to their wives, and may fell the eftate, or any part of it, without a fine. When the purchafers fell any part of the eftate, the confideration money must be made payable to them by thirds; and being joint-tenants, muft not covenant that they are all seized in fee; that covenant must be omitted, and they must covenant feparately, that they have a power to grant one third. They muft either covenant jointly or each for a third, but not each feparately, and all three jointly for the whole.

CASE...

T

HIS Indenture tripartite, made the -

day of

in the George the third, by the grace of God, of Great Britain, France and Ireland, King, defender of the faith, &c. and in the year of our Lord between 7. T. of the parish of

year of the reign of our Sovereign Lord

and late of the

otherwise

cheefemonger, of the first part; J. K. and R. T. of, &c. churchwardens and overfeers of the poor of the faid parish of

fecond part; and W. M. of

other wife

of the

baker, and 7. H. of the parish WHEREAS the faid 7. T. is

-

of baker, of the third part. feized of and intitled unto, for and during the term of his natural life, of and in one undivided moiety, of, in and unto certain copyhold premiffes, fituate, lying, and being at in the county of ,which faid undivided moiety is nevertheless fubject to the payment of pounds and intereft, to F. I. late of the parish of in the county of — fpinfter, defcended by a certain mortgage. And the faid F. I. was alfo in her life time feized to her and her heirs, of one other undivided moiety, of and in the faid copyhold premiffes. AND WHEREAS the faid F. I. by her laft will and teftament, bearing date the day of in the year of our Lord after fome pecuniary and other legacies thereby given, and fubject to the payment of her legacies, debts and funeral expences, did give, devife and bequeath, ALL her eftate, both freehold and copyhold, to H. H. of cheefemonger, to hold

to him and his affigns upon this fpecial truft, to fell and difpofe of the fame for the beft price or prices that could be gotten, and by and out of the monies arifing by the fale thereof, to pay and difcharge her debts, legacies and funeral expences, if her perfonal eftate fhould not be fufficient; and as to the reft and refidue of the monies arifing by fuch fale, to pay, apply and difpofe thereof in fuch manner, and to fuch perfon or perfons (except to the faid 7. T.) as her fifter the wife of the faid . T. party to thefe prefents, fhould by any deed or writing, notwithstanding her coverture, under her hand attefted by two or more credible witneffes, direct or appoint the faid F. I. declaring it to be her intention and will, that fuch refidue fhould be for the fole and feparate ufe of her faid fifter, and not fubject or liable to the controul or debts of her faid fifter's faid husband, and of her faid will conftituted and appointed the faid H. H. fole executor, as in and by fuch will, relation to the fame being had, may more fully and at large appear. AND WHEREAS the faid M. T. by her writing under her hand, and attefted by three credible witneffes, that is to fay, E. C. E. R. and B. R. (the faid writing being made as and for the laft will and teftament of the faid M. T.) fuch writing