Prowse v Abingdon
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1738 |
| Date | 01 January 1738 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 306
HIGH COURT OF CHANCERY
[482] Case 229.-prowse v. abingdon. Easter Term, 1738. S. C. cited Com. Eep. 718; 2 Eq. Ca. Abr. 464 n, S. 0. T. C. devised all his lands to T. C. and /. P. and their heirs in trust, that they should sell his lands in M. and P., and out of the purchase money pay his debts, and as to the rest in trust, to receive the rents and to make leases for 99 years, determinable, d?c.,and therewith to pay his debts and legacies, then to the use of J. A. wife of C. A. for life, remainder to the issue male and female of her body, and makes the trustees executors; he likewise gives a legacy of 500 to his nephew Thomas Prowse, to be paid at 21, or marriage, who died before 21. Personal estate of the value of 700, the lands in M. and P., not sufficient to pay the debts. Bill brought by the administrator of Thomas Prowse to have the 500 raised. The Lord Chancellor of opinion, as the legacy was charged upon the real as well as personal estate, it could not be raised, as the legatee died, before the time of payments and dismissed the bill.(l) Thomas Compton, by will dated the 13th of August 1718, devises all his lands in general words to John Clement, and John Prowse, and their heirs in trust, and to the uses, intents and purposes following, viz. that they should sell all his lands lying in Mindford and Pinard, and out of the purchase money arising from such sale should pay and satisfy the testator's debts, as far as the same will go, and as to the rest of the lands, &c., the will declares that the trustees should stand seised of them, in trust to receive the rents, issues, and profits thereof, and to make leases of the same, for the term of 99 years determinable on three lives, and therewith to pay all the testator's debts and legacies, that then they should stand seised to the use of Isabella Abingdon, wife of Charles Abingdon, and sister of the testator for life, remainder to the issue male and female of her body, remainder over, &c., and makes the trustees executors of his will. He bequeaths likewise a legacy of 500 to his nephew Thomas Prowse, to be paid at his age of twenty-one, or marriage. The nephew died before he attained the age of twenty-one, and unmarried. The personal estate of the testator was about the value of 700, the estates in Mindford and Pinnard. \vere not sufficient to pay the testator's debts. [483] The bill is now brought by the administrator of Thomas Prowse to have the sum of 500 raised against the defendant, who claims the lands under Isabella, subject to the payment of testator's debts and legacies, upon a supposition that Thomas Prowse had an interest vested in this legacy, transmissable to his representative, though the legatee died before the time of payment came. Mr. Chute for the plaintiff insisted, that'this case was very different from that of a devise of lands to a third person, charged with the payment of legacies out of it, that the lands here devised to the trustees for the payment of debts and legacies, must be considered as the personal estate of the testator according to the general doctrine of a court of equity, which often considers land as money, and vice versa, according to the nature of the case, and the intention of the party who directs the disposition of the one or the other ; that the trustees might in fact have entred here, and...
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