Ashburner v Macguire
| Jurisdiction | England & Wales |
| Judgment Date | 18 July 1786 |
| Date | 18 July 1786 |
| Court | High Court of Chancery |
English Reports Citation: 29 E.R. 62
LINCOLN'S INN HALL
S. C. 1 Wh. & T. L. C. (7th ed.) 780. See In re Bridle, 1879, 4 C. P. D. 341; Re Robe, Slade v. Walpole, 1889, 61 L. T. 499.
62 ASHEURNER MACOUIRE 2 BRO, C. C. 108, ha that case. The land was the original debtor, and the mortgagee could not bring his action against the executor, or any other party, but merely against the original debtor. As to the ease in 1 Chancery Cases, 74, nothing more is to be gathered from thence, than the general rule : Gormish v. Mew, Ch. 0a.. 271. Pockley V. Pockley, 1 Vern. 36, show, that where a purchaser of an equity of redemption dies, the personal estate shall not be applied for the benefit of the heir, it not being the ancestor's debt. Where it is a debt payable by executors, at law, this court will relieve the heir, by turning the charge upon the executors, provided it does not interfere with other debts and legacies, or any more substantial claims, 1 Wins. 347.; 2 Wms. 661 ; 1 Vesey, 312. In respect of the rule of marshalling assets, it is, that it must be a debt affecting both the real and personal estate : so, in case the personal fund proves deficient, to enable the court to marshal the assets, you must prove the executors are. accountable at law, and not in equity. There is a case abridged in 6 Brown's Cases in Parl. 520, Lord Rochford v. Belvidere (3 Bro. P. C. 299, octavo edition) (which his Lordship stated). I cannot distinguish that case from this : the House of Lords were of a different opinion to what I entertain upon this case-, and therefore I have stated it more at length. The personal estate never was liable, and the party never was liable to an action upon covenant. In that case George had a fee-simple [108] in the estate ; lie was capable of giving it after the charges were extinguished ; however, it was held, contrary to my opinion, that the personal estate was liable. As to the present case, let the demurrer be allowed ; as my opinion is, that the personal estate never was liable, either by action against the party himself, or against his executors. Demurrer allowed. (This was afterwards affirmed on a rehearing. See 2 Bro. C. C. 152.) (1) S. P. Butler v. Butler, 5 Yes. 534, 538, and vide in Lawson v. Lamson, 1 Bro. C. C. 58, and the references to Tankerville v. Pawed, I Bro. C. C. 57, and the notes. See also on the principal case, more especially 3 Yes. 130, 131 ; 5 Yes. 538, and 14 Yes. 423, where Sir W. Grant, M.R., said, "it was reach a subject of doubt subsequently " to the decision," Sir P. Arden (in Woods v. Hunting ford, 3 Yes. 130, 131) states " the whole import and effect of the principal case to amount only to this, That ;a a man buys subject to a mortgage, and has no connection, or contract, or " communication with the mortgagee, and does no other act to shear an intention to " transfer that debt from the estate to himself, as between his heir and executor, but "merely that which he must do, if he pays a less price in consequence of that molt" gage (that is, indemnifies the vendor against it), he does not by that act take the " debt upon himself personally." ASHBURNER against MACGUIRE. Lincoln's Inn Hall, 18 July [1786]. IS, 0, 1 Wh. & T. L. C. (7th ed.) 780. See In re Bridle, 1879, 4 C. P. D. 341; Re Robe, Slade v. Wal pole, 1889, 61 L. T. 499.1 Legacy of a debt is not adeemed by the testator having received dividends on a bankruptcy. (See 1 Roper on Legacies, 30, 31, &c. &c., especially Coleman v. Coleman, 2 Yes. jun. 639, &c. Stanley v. Potter, 2 Cox, 180, &c.) Legacy of my 1000 East-India stock is specific, and adeemed by the testator's having sold the stock. (See the references in note above, and Chaworth v. Beech, 4 Yes. 555, &c., and see particularly the observations on the principal case, Ibid. 565, 566, 567. See also lanes v. Johnson, 4 Yes. 568, &c., and Gittins v. Steele, 1 Swanston, 24.) lilliam Macguire, by his will, dated 27th September...
To continue reading
Request your trial
- Turner v Turner
- Mansergh v Campbell
- Howarth v Rothwell
- Lassence v Tierney