1841.

LAWRENCE

v.

BLAKE.

ment of a mortgage debt on the estate. The executor
entered into possession of the estate, and received rents
and profits to pay off the mortgage and the portion,
but died insolvent without having satisfied the portion.
It was held that the estate was not discharged from
the portion by the receipt of the executor, but that the
portion, with interest, was to be raised by the sale or
mortgage of the estate; and Lord Hardwicke there
said, "In such cases the cestui que trust must look to
his trustee, and the land shall be charged no longer
than was necessary for the purpose of raising the money,
the interest of the trustee amounting to no more than
a tenancy by elegit; and of this description are all the
cases cited; Oldfield v.Oldfield (q), and Anonymous (r),
and Carter v. Barnardiston (s), in which I was of
counsel, and in which it was held that the executor
took only an estate in the nature of an estate by elegit,
being an uncertain chattel interest, for the payment of
debts and legacies, which could continue no longer
than until such time at which they might be paid, and
then was to determine: but the present case is different,
for here is a devise to the heir-at-law upon condition
which operates as a limitation and gives a right of entry
to the legatee; the daughter, therefore, had a legal
estate and a legal remedy. Under the second clause
part of the inheritance might have been sold; and as
to the last clause, upon which the doubt arises, and
which has been relied upon as making the whole a
trust for raising the portions, I think that it ought not
to weaken the security before given for the portions;
for that clause seems to have been intended for the
ease and benefit of the devisee of the estate, that the
incumbrances might be discharged by receipts of the
(2) 1 Vern. 386.
(r) 1 Salk. 153.
(s) 1 P. Wms. 505; 3 Bro. P. Cas. 64.

1841.

v.

BLAKE.

rents during his minority, and cannot add to or weaken the security for the portion. Besides, there was an- LAWRENCE other reason why the trustee should enter, namely, to satisfy the mortgagee. It cannot therefore be said that the trustee entered as trustee for the daughter, to raise the portion; but as trustee for the devisee, to pay off the incumbrances." So here the estate was not discharged, for the right remained under the will. The trusts for the benefit of the inheritance were not executed, and the money received was not so received as to be a good payment by the estate, which, if it could pay at all otherwise than to the legatees, must do so under the Act of Parliament. What was the power of the father to receive the legacies given to the children? No payment to him for such a purpose could have been held good, unless it was a payment made with an intention to discharge the legacy. But in the will there is no power in the father to give a good receipt for the legacy. The party, therefore, who paid money, was bound to see that the trustee did his duty. So that under the will the Act of Parliament operated nothing in discharge of the estate, but by payment to the legatee.

the

It has been stated that these bills were defective in respect of the parties, and that when the decree of 1819 was made, the suit was in effect abated. But if the proceedings are suffered to go on after this cause of abatement has arisen, it must be considered to have been waived and abandoned; and if abandoned, it is as though it did not exist. The principle that must govern the House, in the decision of this case, is the same as that which is applicable in the case of female defendants. It is to be found in a note to Jeremy's edition of Mitford on Pleading (†), where it

(t) P 58.

1841.

LAWRENCE

v.

BLAKE.

is said," The reason of the difference between the cases of a female plaintiff and defendant seems to be that a plaintiff seeking to obtain a right, the defendant may be injured by answering to one who is not entitled to sue for it; but a defendant merely justifying a possession, the plaintiff cannot be injured by a decree against the person holding that possession. And it has been determined that where a female plaintiff has married, and has notwithstanding proceeded in a suit as a feme sole, the mere want of a bill of revivor is not error for which a decree can be reversed upon a bill of review brought by the defendant:" and Cramborne v. Dalmahoy, 1 Cha. Rep. 231, and Nels. Rep. 86, is quoted in support of this proposition. If any objection existed here, which could have abated the suit, that has been cured by the bills of revivor, the special finding, and the making of the junior Appellant a party to the suit.

Then there is the objection that the plaintiff is declared entitled upon the estate settled for so much as would equal the amount of personalty applicable to the payment of the debts chargeable on the real estate. This is the usual form of such a decree, and equity will not wait for the ultimate account of the personal estate before it gives a legatee this right. There are instances in justification of such a form of a decree; in Seton's Decrees in Chancery (u) there are two forms of this kind :"And in case any of the creditors by specialty or judgment of the said testator, shall exhaust any part of his personal estate, then the creditors by simple contract are to stand in their place to receive a satisfaction pro tanto out of the real estate; Mainwaring v. Ellerker, M. R., 3 July 1747, and Bowen v. (u) P. 88.

1841.

v.

BLAKE.

Prentis, L. C., 9 November 1747." The next exactly resembles it:-"And in case the specialty creditors of LAWRENCE the said testator shall exhaust any part of the said testator's personal estate, the simple contract creditors of the said testator are to stand in their place, and receive a satisfaction pro tanto out of the monies which shall arise by such sale; Newton v. Bradshaw, L. C., 7 July 1801." The mere fact that the personalty has been applied to pay the debts charged on both funds gives eo instanti a right to the individual entitled to the personalty to come on the other fund for compensation; but the objection that the decree of 1819 has given too much, can hardly arise now, for it directs nothing but an account and an inquiry. The report of 1821 was made under both the decrees of 1813 and 1821. The junior Appellant seems never to have excepted to that report; the senior Appellant was the only person who excepted. Now it is a rule of practice, that if an infant Appellant allows a report to be made, and does not except to it, he is as much bound by it as is any other party. The case of Prowse v. Abingdon does not apply to the present. It was a case of a legacy charged on real or personal estate, where the legatee had died before the time of payment, and the opposition was with reference to the person of the legatee, and not as to the estate charged; and the point there was, whether there should be a marshalling of assets between the real and personal estates, in order to preserve the legacy. Kiernan v. Fitzsimon is the only case in which it could be suggested that the rule as to marshalling assets could be affected by the solvency of the executor. The question always is, what personalty is there available? Of course, that is not the case where the legatee has colluded with the executor. Suppose

1841.

LAWRENCE

v.

BLAKE.

the case of a charge on the real and personal estate.
It has never been pretended that under any such
circumstances an executor failing with money in his
hands, the estate has been discharged. The loss in
such a case could never fall exclusively on the legatee.
As this decree is merely for an account and inquiry,
it is right, whatever may be the state of the circum-
stances of the party, and it must be sustained. R. A.
Burke was actually insolvent; he did not maintain
the children, they maintained him. As to his being
trustee of the legacies, that is nothing, for he could
not give a good discharge for them; and with
respect to the Act of Parliament, the legacies were
made by it payable directly to the legatee. The next
step in the case is the death of N. A. Burke, in con-
sequence of which some persons became interested
in the real estate to which he was entitled while
living, and which he had an interest in protect-
ing. The first bill filed, in which the devisees and
J. Mahon, the administrator of N. A. Burke, are par-
ties, is that of 1834. The King of Spain v. Machado (x)
and Cuff v. Platell (y), were the only authorities cited
in the Court below, to show that as Mahon had nothing
to do with the matter, except as an agent, therefore
that the bill must be dismissed. But the dismissal

because there is one party too many, cannot take
place at the hearing. In the two cases in question
the dismissal took place on demurrer; and there are
many objections which are good on demurrer, but
which are not available in any other state of the
cause. There is one instance where a person had no-
thing to do with the suit, and it was so reported; and
the suit was dismissed as to that one party, but not as
to the rest. But it is a mistake to say that J. Mahon
(x) 4 Russ, 225.
(y) Id. 242.