Forrester against Lord Leigh
| Jurisdiction | England & Wales |
| Judgment Date | 24 June 1753 |
| Date | 24 June 1753 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 114
IN CHANCERY.
Lib. Reg. 1752, A. fo. 325 b.
[171] Case 84.-FORRESTER against Lord leigh. In Chancery, June 23, 24, 1753. [Lib. Eeg. 1752, A. fo. 325 b.] Charles Leigh being seised of a real and personal estate, and being indebted by mortgages contracted by himself, and in other mortgages contracted by the former owner, on part of his real estate, from whom he purchased, and also in simple contract debts, by will of 30th July 1748, after giving several specific legacies to Lady Barbara his wife, and several legacies to plaintiff, the will went on, touching and concerning all his real estate, both freehold and copyhold, in the county of Bedford, and all other his real estates in the counties of Bucks, Hertford, Warwick, and Chester, or elsewhere in England, whereof he or any in trust for him were seised, in possession, reversion, or remainder, except the several church and college leases therein after mentioned, he gave the same to his wife for life, remainder to Thomas Lord Leigh for life, remainder to trustees, &c., remainder; to second, third, fourth, &c., sons of Thomas Lord Leigh, other than the eldest son; remainder to testator's right heirs. |j, Thomas Lord Leigh is dead, leaving defendant Lord Leigh his only son. pij Bill by plaintiffs, to be paid their legacies; and in case any of the personal estate should be exhausted in payment of debts by specialty, that plaintiffs may stand in the place of such creditors, and be paid out of the real estate. Four Questions were made by Mr. Solicitor-General : 1st, Whether plaintiffs, as legatees, have right to stand in the place of creditors 1 2d, Whether the personal estate of Charles Leigh is liable to those mortgages which were contracted on the estate by the former owner 1 [172] 3d, It appeared testator had given a bond for 2000 to Lord Scarborough, in trust for Lady Barbara : Whether the bequests in the will should be a satisfaction for that bond-debt 1 or if not, whether the plaintiffs should stand in her place as to that bond-debt, and be paid so much out of the real estate 1 4th, Whether a house held by lease for years from Sir Robert Grosvenor be considered as specifically devised ? But the third point of satisfaction being given up, the Lord Chancellor, after argument at the bar, delivered his opinion : There are several questions : 1st, Whether plaintiffs are entitled to marshal the assets, and to stand in the place of the specialty creditors generally 1 2d, If the house in Brook-Street is to be taken as part of the real estates, that is, chattels real ? 1st, Shall consider the question as contended; that is, to stand in the place of bond creditors, not accompanied with mortgages, where there is a devise of land. 2d, Shall consider it where there are mortgages. ' To the 1st, No authorities go so far. They are otherwise. The heir at law always had a right,: either in case of mortgage or not, to have the inheritance exonerated from debts by...
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Hern contra Merick
...to be satisfied out of the mortgaged premises, though specifically devised, Lutkins v. Leigh, Ca. temp. Talb. 53. Forrester \. Ld. Leigh, Amb. 171. For the application of the personal assets, in case of the real estate mortgaged, does not take place to the defeating of any legacy. Oneal v. ......
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...upon the lands devised to Mary Newton. In support of the first proposition, the following authorities were cited ;-Forrester v. Lord Leigh (Amb. 171), Smtt v. Scott (1 Eden, 459), Nwnnock v. Horton (7 Ves. 391), Milnes v. Slater (8 Ves. 295), Hill v. Cock (1 Ves. & E. 173), Keeling v. Broom......
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