Herne v Meyrick
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1712 |
| Date | 01 January 1712 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 355
LORD KEEPER HARCOURT.
IP. WMB.201. HERNE V. MBYRICK 355 [201] de term. S. trinitatis, 1712. Case 46.-herne versus meyrick. [1712.] ,( Lord Keeper Harcourt. Salk. 416 ; Gilb. Chanc. 307, 310 ; 1 Eq. Ca. Ab. 143, pi. 11. One seised in fee owes debts by bond, and devises his lands to his heir in tail, and gives several legacies; after which he dies, leaving the heir his executor; the heir with the personal estate pays off the bond-debts, by which means there are not assets to pay the legacies; the legatees are without remedy, the land being devised in tail to the heir. Otherwise had the land descended to such heir in fee.(l) One seised of lands in fee, owed money by several bonds, and by will gave several legacies to his younger children, and devised his lands to his eldest son in tail. The eldest son (who was likewise executor) had paid the bonds with the personal estate-; and now the legatees brought their bill, praying that they might stand in the place of the bond-creditors, and be paid out of the lands devised to the eldest son, the late statute against fraudulent devises having made the devise void as against bond-creditors. And this cause being heard before the Master of the Rolls, his Honor declared, he would marshal the real and personal assets, in such manner, as that the debts and legacies should both be paid, viz. the legacies out of the personal, and the [202] bonds out of the real estate, and that as the bonds had been paid by the executor out of the personal estate, so the legatees should, pro tanto, stand in the place of such bond-creditors, and be paid out of the real estate. But from this decree there was afterwards an appeal (25 Oct. 1712) to the Lord Keeper, before whom it was urged by the Solicitor General and Mr. How, that these younger children were provided for by other land devised to them ; and that, in case the legacies were to be charged upon the land of the eldest son, he would be left destitute. That it was as much the intent of the testator, that the devisee should have the land, as it was, that the legatees should have their .legacies; and therefore the one ", was not to be favoured more than the other; nay, that the rule in equity was, that specific legacies should not be broken into, in order to the satisfaction of pecuniary ones ; that if in this case, the devise had been of a lease for years to the heir, he should have kept that, without having it made liable to...
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