Nelthrop and Margaret his Wife, against Hill, Biscoe, and Anne his Wife.

THE LORD KEEPER; JUSTICE WINDHAM; BARON TURNER.

Original Printed Version (PDF)

Original Citation: (1669) 1 Chan Cas 135

English Reports Citation: 22 E.R. 730

October 6 1669.

The Lord Keeper; Justice Windham ,- Baron Turner.

nelthrop and margaret his Wife, against hill, biscoe, and anne his Wife.

October 6 [1669].

Executor to take Security on Payment of Legacies in Case of a Defect of Assets.

This Cause was heard first before the Lord Keeper. The Case. The Plaintiff Margaret and the Defendant Anne were the two Daughters of Smith, who having made his Will eighteen Years since, and Hill Executor and Curator of the Children (both then in Infancy) by his Will gave several Legacies, and then gave the Residue of his Personal Estate to be equally divided between his two Daughters, Anne and Margaret; and if both die before Marriage or full Age, then he deviseth it over to another. Biscoe marrieth Anne the eldest Sister, and then one Moiety of the Estate, which was good, and in the Hands of the Executor, is paid to Biscoe and his Wife, and [136] Biscoe settles a Jointure for this on his Wife, and gives the Executor a Discharge.

Afterwards the Executor puts out the other Moiety (Margaret being still in Minority) on Security, and Part of it is lost. Then Margaret marries Nelthrop, and they bring this Bill against the Executor, and Biscoe and his Wife, to have a Contribution towards the Loss born by them, and to have Biscoe refund.

Upon the first Hearing it was so decreed, unless Biscoe shewed Precedents to the contrary.

Now upon farther hearing this Day (viz. 10 Jan. 1669), before the Lord Keeper, Mr. Justice Wyld, and Mr. Baron Turner, it was for Biscoe insisted, That by the Mar¡riage of Anne, her Moiety became due, and the Devise over is defeated: So that if Biscoe and his Wife had brought their Bill for it, the Executor could not have denied Payment of it, and so Biscoe hath done no Default, who hath not his Money 'till due, and he is not concerned to look any farther; and in lieu of the Portion a Jointure is made, and a Release for the Legacy is given; and probably, if the Executor would not have paid, Anne might have lost her Preferment, and the Executor was by the Will the Curator of the Children. And it was said, That by Anne's Marriage first, she became first entitled. And it was insisted, That where Legacies are payable at several Times, and the Legacy that is first due is paid when due, and there is Money in the Executor's Hands to pay the other Legacies, that if a Loss fall on that afterwards, there is Equity in that Case to put the first paid Legatee to refund.

For the Plaintiff it was insisted, That there was in this Case no Time limited for Payment of either; and that by the Marriage of Anne, the Devise over being defeated, both became due and payable, the Devise being indefinite, without any express Time of Payment; and the Plaintiff Margaret's Infancy ought not to turn to her Prejudice; and that it was the Testator's Intention that they should have it equally, one as much as the other. And if Biscoe had sued, the Executor might have required Security to refund.

And it was said and admitted by the Court, That if Executors pay out the Assets in Legacies, and afterwards Debts appear, and they be forced to pay them, of which they had no Notice before the Legacies paid, That [137] the Executors by a Bill here might force the Legatees to refund.

But as to that it was answered, That Case was not like to this; for there was not enough to pay all when the Legacies were paid, but here was enough when the Legacies were paid to pay all, and the Loss since.

And for the Plaintiff it was farther insisted, That a Division could not be made without the Plaintiff Margaret called to it; and the Case of Grove and Banson insisted on, where Banson had a Conveyance and Statute for his Wife's Legacy, and yet put to refund. But as to that Case it was answered, There was not any Payment, but a Security, and

1 CHAN. CAS. 138. FRY V. PORTER 731

by that he would have had a Redemption; so this Payment was not paid, but executory. And the Plaintiff cited the Case of Picks and Vincner upon Sir Henry Martin's Certifi¡cate, which was 29 Octob. 1639, and was in Substance thus : That an Executor may not pay one, if he hath not enough to pay all; and an Executor is not bound to pay a Legacy without Security to refund if there be want of Assets to pay either Debts or Legacies. Which was not, as is said, to this Purpose, there being at the Time when this Legacy was paid, enough to pay all.

Ordered the Cause be set down to be re-heard originally, as well against the Executor,

as the Legatee Biscoe and his Wife. . ,- »-*. . v ò . *,

Qucere, If there be not a Difference between Debts and Legacies thus: Debts may appear to the Executors, but Legacies appear in the Will ? And quaere, If therefore Executors be not bound more strictly to take Security against Legacies that do appear, than Debts that do not ?

And note the Case 1 Vern. 482, viz. Lands being devised for Payment of Debts and Legacies, 'twas at first decreed, That both should be paid in equal Degree. But that Decree was revers'd by Lord Keeper North; and Jeffries declared, he was dis¡satisfied with that Reversal-But after all, I take it there is a great Difference between Debts and Legacies, the former being ex debito Justitice, and the latter only ex opere Charitatis ; and we must allow Justice to be preferable to Charity.