Harris v Ingledew
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1730 |
| Date | 01 January 1730 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 981
SIR JOSEPH JEKYLL, MASTER OF THE ROLLS.
[91] de term. S. hilarii, 1730. Case 20.-harris v. ingledew. [1730.] Sir Joseph Jekyll, Master of the Bolls. 2 Eq. Ca. Ab. 74, pi. 26 ; 233, pi. 17 ; 255, pi. 3 ; 462, pi. 15 ; 768, pi. 6. A will begins, as to all my worldly estate, my debts being first paid, I give, &c. the real estate is liable to the debts, nothing being devised till the debts are paid. This bill was brought by the simple contract creditors of William Ingledew, to compel a sale of the real estate of the said William Ingledew, for payment of his debts, he having 982 HARRIS V. INGLEDEW 3 P. WMS. 92. made a will to this effect: As to all my worldly estate," my debts being first satisfied, " I devise the same as follows." Then he proceeded to devise part of his estate, being freehold, to his brother in fee, to whom also he bequeathed a term for years. Other part being copyhold, he devised to A. in fee, other part of his freehold to B., and the remaining part to 0. in fee ; after which he died without issue, leaving his brother John Ingledew his heir, who having, on the testator's death, entered on the freehold lands devised to him, and also on the copyhold premises, as not having been surrendered to the use of the will, made his will, whereby he devised all his estate real and personal to his wife, and died leaving a son. [92] The widow of John Ingledew the brother, and her son, being the nephew and heir of the first testator, joined in a sale of several of these lands to several persons, for valuable considerations; and the simple contract creditors now bringing their bill against the several devisees of the premises, and also against the purchasers, in order that the several lands might be sold for the satisfaction of their demands, the will was proved, but John Ingledew, the nephew and heir of the first testator, was not made a defendant to the bill. Upon which it was insisted, that the heir at law ought to be a party, it being ever done in like cases; that the bill being for a sale, if the heir was before the court, the evidence to the will would be perpetuated ; but in case he should not be a party, a decree for sale of the estate would be vain ; for no one would buy, at least he would not give half the value for it; whereas, should the heir be a defendant, this will charging the lands with payment of the debts, the heir would be decreed to join ; that the general practice in cases where a will of land is proved, is, to declare the will well proved ; that is, well proved against the heir ; for it cannot be said to be proved against any one else. And suppose these lands should be sold by the devisees, pursuant tto the decree, and afterwards the heir should sue for the estate, and recover ; here would be a purchaser under the decree, evicted notwithstanding, for want of the plaintiff's having made the heir a party : and yet the court ought not to suffer any thing to happen to the prejudice of those, who are to be purchasers under its decrees. [93] To which it was answered, that the descent was broke by the devise, and the estate being devised away from the heir at law, he was no more interested therein than any stranger ; that in case lands are by a deed conveyed to trustees to sell, and afterwards the grantor dies, unless the heir is to have the surplus, he need not be a party to the bill for compelling a sale. Master of the Bolls. This seems a material objection ; for since the sale of the estate must affect all the devisees in proportion, and as the estate would not, without the heir being a party to the decree, sell for near the...
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Boyse v Rossborough
...to do it as a general rule, although the particular case itself was an exception,, seems to have been the case of Harris v. Ingledew (3 P, Wms. 91), [87] where the objection was raised in consequence of the heir at law not having been a party to the suit to carry into effect the trusts of t......
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...For. 110. Bawdier v. Smith, Trott v. Vernon, Pre. Ch. 264, 430 ; [550] 2 Vern. 708. Clowdsley v. Pelham, 1 Vern. 411. Harris v. Ingledew, 3 P. Wms. 91. Lord Godolphin v. Penneck, Thomas v. Britnell, 2 Ves. 271, 314. This testator did not mean to part with any of his property, till his debts......
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Jeremiah Bixly, on behalf of himself and the rest of the Creditors of Francis Eley, Deceased, Plaintiffs; Sarah Eley, the widow of the said Francis Eley; John Humphrey and John Steane, the executors; Sarah Eley an infant. the daughter of the said Francis Eley; John Eley the younger, and James Young and his Wife, Defendants
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