Heir and Ancestor
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1744 |
| Date | 01 January 1744 |
| Court | High Court of Chancery |
English Reports Citation: 21 E.R. 1034
HIGH COURT OF CHANCERY
[264] CAP. XXXII. heir and ancestor. (Vide ante, Cap. IV. (D) [1 Eq. Ca. Abr. 24].) (A) By what Acts of the Ancestor shall the Heir General be bound. (B) By what Acts shall an Heir Special, or Issue in Tail, be bound. (C) Heir, in what Cases favoured in Equity. (D) Where Charges and Incumbrances on the Lands shall be raised, or shall sink in Inheritance, for the Benefit of the Heir. (E) Where the Heir shall have the Benefit and Aid of the personal Estate. (F) In what Cases there shall be a resulting Trust for the Benefit of the Heir. (G) What Things shall go to the Heir, and not to the Executor. (H) What shall be Assets by Descent in the Hands of the Heir. (I) Unreasonable Bargains and Securities obtained from young Heirs, in what Cases to be set aside. (A) by what acts of the ancestor shall the heir general be bound. 1. If Lands are devised to the Wife for Life, and afterwards to be sold by the Executor for younger Children's Portions, and the Executor and Wife die ; the Children may compel the Heir to sell, though the Executor had only an Authority: Ruled upon Demurrer. Mich. 15 Car. 2, Garfoot and Garfoot, 1 Chan. Ca. 35. (2 Freem. 176, S. C. accord'.} (By the Common Law, if Lands are devised to be sold by an Executor, by which he has only an Authority, and he dies, no Sale can be made ; so if an Authority only be given to two, and one dies, the Survivor cannot sell; but it is otherwise when an Authority is given them, coupled with an Interest, as by a Devise of Lands to them to be sold, 'l Inst. 112, 113, 181.) [265] 2. If /. S. devises his Lands to his Executors, to sell and pay Debts, the Heir shall be compelled to join in the Sale ; per Lord Keeper, who said it had been so ruled in the House of Lords. Trin. 27 Car. 2 [1675], Fowle and Green, 1 Chan. Ca. 262. 3. If Lands are settled on Trustees for raising of Maintenance and Portions for Daughters, and a Bill is brought for a Sale, and that the Heir might join : he shall be compelled to join, though it is objected that he has no legal Estate in him. Pasch. 1689, Boll and Boll, 2 Vern. 99, where it is said, that several Cases to that Purpose were cited; vide the Case of Pit and Pelham, 1 Chan. Ca. 176, several Precedents quoted, where the Lands were decreed to be sold, though no Executor named, or though he died before any Sale made. And vide Warburton v. Warburton, 2 Vern. 420, where it is resolved, that the Heir may have the Lands sold, if it appears for his Advantage, as well as the younger Children rnay insist upon a Sale (S. C. 1 Lev. 304; 2 Jon. 25 ; 2 Freem. 134; 1 Ch. Rep. 283.) 4. If A. contracts to sell Lands, and receives good Part of the Purchase-Money, but dies before a Conveyance is executed, and a Bill is brought against the Heir, he shall 1 EQ. CA. ABE. 266. HEIR AND ANCESTOR 1035 convey, and the Money shall go to the Executor ; especially if there are more Debts due than the Testator's Personal Estate is sufficient to pay. Mich. 1692, decreed, Hoskins and Savoy, S. P., 2 Vern. 213, 215. Baden and Countess of Pembroke. (S. 0. but not S. P. ante [1 Eq. Ca. Abr.], 241; 2 Vern. 52; 3 Oh. Rep. 217). (If a Man for £ 100 assumes to make a Lease for 21 Years, and dies ; his Heir is not compellable, in a Court of Equity, to make the Lease ; for this is against the Common Law. 3 Jac. 1, Chapman and Boier, 1 Boll. Abr. 377, 378. Quaere (1 Danv. 757).) (B) by what acts shall an heir special, ok issue in tail, be bound, 1. If Tenant in Tail bargains and sells the Lands, yet this cannot be made good in Equity against the Statute, by which he is disabled to bar his Issue ; resolved per Lord Keeper and Lord Hobart. Cavendish and Worsly, Hob. 203. 2. But if Tenant in Tail agrees to convey, he may be compelled in Equity to execute the Agreement; but if he dies, his Issue is not bound thereby, unless he doth some Act whereby he consents to and confirms the Agreement. Trin. 22 Car. 2 [1670], Ross and .Ross, 1 Chan. Ca. 171. [Jenkins v. Keymes,] 1 Lev. 239, S. P. in Cancellaria. (Vide Ross v. Ross, but not S. P. ante [1 Eq. Ca. Abr.], 124.) 3. If Tenant in Tail agrees to sell his Lands, and receives Part of the Consideration- Money, and upon his not making good the Sale by a Fine or Recovery, a Bill is brought to compel him thereto; and a Decree pronounced accordingly ; and he stands out all Process against him to a Contempt, and then dies without perfecting the Sale ; yet his Issue shall not be compelled to perfect it: Adjudged on a Bill brought against the Issue to revive the Decree. Hil. 1708, Powel and Powel, S. C. cited, and admitted by my Lord Chief Baron Gilbert, in the Argument of the Earl of Coventry's Case, Pasch. 1724, for the Heir comes in under the Statute de donis singly; and is not any Way deriving from the Ancestor who contracted (Free, in Chan. 278, S. C. accord.'). [266] 4. If Tenant in Tail sells at a full Value, and receives the Consideration-Money, and covenants to levy a Fine, and is decreed to do it; yet dying (though in Prison and in Contempt for not performing the Decree) the Issue in Tail cannot be bound by it, Weal and Lower, cit. 2 Vern. 306. (C) heir, in what cases favoured in equity* Vide Title Devise [1 Eq. Ca. Abr. 171], That an Heir shall not be disinherited by doubtful or ambiguous Words. 1. If /. S. devises Lands to his Wife for Life, and the Heir claims the Lands by an Intail, and prays a Discovery of the Writings which by Order are brought into Court, and on a Motion ex parte given to the Heir, and among them the Deed of Intail is found ; and the Wife insists on having back the Deed, unless the Heir would confirm her Estate, and that she is more than a bare Volunteer, it being a Provision for her; yet it not appearing to be pursuant to Marriage-Articles, it shall be considered only as a Bounty ; and the Heir having a good Title shall be aided. Mich. 32 Car. 2 [1680] [Anonymous], 2 Chan. Ca. 4. 2. If Husband and Wife levy a Fine of the Wife's Lands, and by the Deed the Use is declared to the Husband and his Heirs, and the Husband, without any Consideration, devises it to /. S., J. S. being a voluntary Devisee shall have no Aid in Equity for the Deed against the Heir of the Mother, but will be left to help himself at Law as he can. Hil. 34 Car. 2 [1683] [Coventry v. Hall], 2 Chan. Ca. 134. 3. If J. S. by Will devises £3000 to his three younger Children, which Sum was a Mortgage due from /. T., and by his Will adds, that for the more sure Payment of it, in case his Son and Heir, whom he appointed Executor, should not pay the same according to his Will, then he devised the Land for the Payment thereof, and appoints it to be paid them at twenty-one, or Marriage which should first happen, and a Mainten ance out of his Land in the mean Time, and J. T. obtains a Decree for Redemption of his Mortgage, on Payment of the Money, against the Executor and the Infants, who appeared by their Mother as Guardian ; and the Money is brought into Court, and placed out by the Master, on a Security which proves ill; yet the Heir shall not be com pelled to pay it over again to the younger Children; for the Lands are made only supplementally chargeable in case J. T. had failed, or in case the Heir and Executor had received, and refused to pay it to the Children ; and though a Real Security for 1036 HEIR AND ANCESTOR 1EQ. CA. ABE. 267. Children's Portions shall not be changed into a Personal one ; yet in this Case it was not in the Power of the Heir to prevent /. T. 's redeeming the Mortgage. Mich. 1685, Oldfield and Oldfield, 1 Vern. 336. 4. If an Estate is limited to Trustees for Payment of Debts and Legacies, and the Trustees raise the whole Money, but do not apply it according to the Trust; yet the Heir shall have the Lands discharged, and the Legatees must take their Remedy against the Trustees ; for the Money being once raised, the Land shall be discharged. Anon. 1 Salk. 153, in Domo Procerum. [267] 5. But if A. being Tenant for Life, Remainder to his first Son in Tail, Remainder over, has a Power to charge the Estate with £250 per Ann. Annuity, for any Term not exceeding four Years, and A. does by Deed charge the Premises with £250 per Ann. for four Years, to commence from his Death, in Trust to raise £1000 Part to be paid to B. and the other Part to C., the Son pays S. what was due to him, and he delivers up the Deeds, and they are suppressed, and the Son takes the Profits for four Years, and more, and leaves a Daughter his Heir at Law, and leaves no Personal Assets ; the Lands shall be liable in the Hands of the Daughter to pay C. with Interest though the Term for Years is expired, and the Person dead who received the Profits. Vide Smith and Smith, 2 Vern. 178, Mich. 1690. (D) where charges and incumbrances on the land shall be raised, or shall sink in the inheritance for the benefit of the heir. 1. J. S. by Settlement charged his Lands with the Payment of £4000 a-piece to his two Daughters, to be paid them at their respective Ages of twenty-one Years, or Days of Marriage, and reserved to...
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