Hern contra Merick
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 91 E.R. 362
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Coram Harcourt, Lord Chancellor. In Cane. S. C. I P. Wms. 201. Gilb. Chan. 307. 1 Eq. Ca. Ab. 143, pl. 11.
3. hern contra merick. [Cm-am Harcourt, Lord Chancellor. In Cane. S. C. 1 P. Wms. 201. Gilb. Chan. 307. 1 Eq. Ca. Ab. 143, pi. 11.] Where real estate shall be charged with legacies in equity. Vide ante, 415. 1 ChatK Eep. 134, 288. 2 Chan. Rep. 200. 1 Chan. Cases 57, 257, 258. 1 Wilson 24. 2 Atk. 624. 1 Vent. 31. 2 Vern. 727. H. seised in fee, and indebted by bonds, by will gives legacies to children, (whom he had otherwise provided for before,) and clevises his land to his eldest son in tail. The eldest son, being also executor, pays the bonds with the personal estate; and now the legatees brought a bill to come against the real estate in the place of the bond creditors, and be paid out of the land. The Court seemed to admit, that if the lands had descended, the legatees might have been relieved in this manner; but since the testator had devised them, it was resolved, that they ought to be exempted ; for it was as much the testator's intention that the devisee should have this land as the other should have the legacies, and a specific legacy is never broke into, in order to-make good a pecuniary one. Also this case is out of the statute against fraudulent devises, because the debts are paid, and the children being otherwise provided for, are not in the nature of creditors. Nota ; This case was upon an appeal from the decree of the Master of the Rolls, who held, that the real and personal estate should be so charged, that both the debts and legacies should be paid (a). (a) In Clifton and Burt, 1 P. Wms. 679, it was ruled, that an estate devised in fee should not be charged with a legacy where the personal estate was exhausted by a specialty debt. The whole law upon this subject is thus collected in a note to that case by Mr. Cox. " It being the object of a Court of Equity, that every claimant upon the assets of a deceased person, shall be satisfied as far as such assets can by any arrangement consistent with the nature of the respective claims, be applied in satisfaction thereof; it has been long settled, that where one claimant has more than one fund to resort to, and another claimant only one, the first claimant shall resort to that fund on which the second has no lien." Lanoy v. Duke of Athol, 2 Atk. 444. Lacam v. Merlins, 1 Vez...
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Smell contra Dee
...dies before the time of payment, it is a lapsed legacy in that case. Fide Dy. 59 b. 2 Vent. 342. Off. Ex. 347. Swinb. 311, 313 (a). 2 SALKELD, 416. LEGACY 361 If a legacy be devised generally, atid no time ascertained for the payment, and the legatee be an infant, he shall be paid interest ......
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Anonymous (1795) 3 Salk 83
...because the executor by law is bound to prefer them before debts on simple contract (b). (b) Vide note about marshalling assets, 2 Salk. 416. English Reports Citation: 91 E.R. 706 COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER. Anonymous Hill. 9 Will. 3. 3. anonymous. [Hill. ......