Spackman v Timbrell
| Jurisdiction | England & Wales |
| Judgment Date | 11 February 1837 |
| Date | 11 February 1837 |
| Court | High Court of Chancery |
English Reports Citation: 47 E.R. 300
HIGH COURT OF CHANCERY
S. C. 8 Sim. 253.
[171] spackman v. tembrell. Dec,. 7, 8, 183G. [S. C. 8 Sim. 253.] A Trader dying indebted by Specialty and simple Contract, having devised hi,^ Estates to his Heir, and the Devisee having settled those Estates on his Marriage, the Creditors cannot follow the Estates, but the Devisee is personally liable for the Value of the Estates settled. Thomas Timbrell, by his will, dated the 14th Feb. 1820, gave and devised certain freehold and leasehold estates (therein particularly described), unto his son, Thomas Timbrell the elder, absolutely charged with the payment of 3000 to each of hi* daughters, Eliza Diana, afterwards the wife of Edmund Zachariah Jefferys Lewis (since deceased); Augusta Sophia, the wife of the Plaintiff, Charles Spackman the elder ; and Caroline Matilda, the wife of the Defendant, the Rev. Geo. Crabbe; to be paid to them in four years after his decease, with interest half-yearly, by his said son Thomas Timbrell the elder, and with the further sum of 2000, upon certain trusts therein mentioned, which had since determined or been incapable of taking effect; and, subject thereto, the testator gave the 2000 unto his three daughters, share and share alike. The testator then made several devises and bequests to his sons and daughters, and as to all the residue of his real and personal estate, he gave, demised, and bequeathed the same unto his said son Thomas Timbrell and Charles Spackmau the elder, upon trust, to sell; and, after paying all his debts, legacies, and expenses, he gave the monies to arise by such sale, unto his five children, equally, share and share alike. He appointed his son, Thomas Timbrell, and the Plaintiff Charles Spackman the elder, executors. The testator died, leaving the Defendant Thomas Timbrell his eldest son and heir at law, and the other four children named in his will, surviving, and the will was proved by the executors. DONNELLY 172. SPACKMAN V. TIMBRELL .301 That Thomas Timbrell the elder had since sold off divers of the said testator's residuary estates, and out of the purchase-monies paid divers of the testator's debts, but that the testator, at the time of his death, was indebted to the Plaintiff Charles Spackman the elder in 900, and to various other persons to a considerable amount, and that Thomas Timbrell had paid Charles Spackman the elder 150. That by indentures bearing date the 8th and 9th days of January 1823, executed on the marriage of Thomas Timbrell the elder with the Petitioner Louisa Webber, the several hereditaments comprised in the testator's will and devised to Thomas Timbrell the elder, together with other hereditaments, were conveyed to the use of William Stump and William Strong, for 1000 years, and, subject thereto, to the use of Thomas Timbrell and Louisa Timbrell, for their respective lives, and afterwards for [172] tha benefit of the children as tenants in common. The term of 1000 years was for the purpose of raising the three several sums of 3000, bequeathed by the will of Thomas Timbrell the testator, to the three daughters, with interest at 5 per cent. There was also a covenant on the part of the intended wife's father, to settle a sum of money. There were five children of the marriage, the Petitioners after-named, all infants. Before the testator's death, his daughter, Caroline Matilda, married with the Rev. George Crabbe, and, by the marriage settlement, dated the 8th of April 1817, the testator covenanted with John Crabbe and Thomas Timbrell the elder (the trustees), within twelve months after his decease, to pay to them 4000, upon certain trusts therein mentioned, for the benefit of the husband and wife and the children, and to pay interest at 5 per cent, in the meantime. There was issue of the marriage six children-Caroline, George, Thomas, Catherine, Sophia, and John, all infants. On the marriage of James Selfe Timbrell and Ann Burnett, indentures of settlement were made, dated the 30th and 31st clays of May 1820, whereby the hereditaments devised to him were settled in favour of the husband and wife and children. James Selfe Timbrell afterwards died without issue, having made his will, dated the 28th of September 1825, whereby he appointed the Defendant, Thomas Timbrell the elder, and his said wife Ann Hyatt, then Ann Timbrell, to be executor and executrix thereof, the latter of whom alone proved the will. She afterwards married Eobert Hyatt. That the testator, in his lifetime, was a banker and within the bankrupt laws. Two suits had been instituted to administer the testator's estates, and for a sale and payment of his debts and legacies. Thomas Timbrell the elder died on the 20th of July 1835, leaving the Petitioners, Louisa Timbrell his widow, and Louisa Eugenia, Emily Georgiana, Thomas, Rosa Mary, and Sarah Augusta, his only children him surviving. This was a petition of rehearing, whereby it was sought to reverse so much of a decree of the Vice-Chancellor made in this cause, and therein specified, amongst which he ordered it to be referred to the Master to appoint a receiver of so much of the specifically devised real estates (except copyholds), of which a receiver had been appointed, and insomuch as the the decree affected the hereditaments specifically devised of the testator, comprised in the settlements of the 8th and 9th days of January 1823, under which the Petitioners claimed to be purchasers for valuable consideration, and entitled, under the settlement, in preference to such of the creditors of the said testator, who had not a specific charge on such estates prior to the settlement. Mr. Wigram, for the Appellants, said the question was, whether [173] an heir or devisee of a trader taking estates by descent, and marrying and settling the estates, such settlement took the estates out of the reach of the creditors 1 The general rule of law was, that the property was not liable, but the heir was personally liable ; and that the statute of 3 W. & M. c. 14, was so framed as to give the creditors the same remedies as before, for the 5th section excepts bund fide alienations, which meant not only for value, but also in consideration of marriage. So if the heir of a trader took estates by descent, and he aliened before the writ was signed, the creditors could not follow the land ; consequently, there was no charge on the land, but only a personal liability, enlarged by the statute of 47 Geo. 3, e. 74. Horn v. Horn arid Lechmerv v. Brasier. the VrCE-CHANTCELLOR inquired whether, supposing before the passing of Sir 302 SPACEMAN V. TIMER ELL DONNELLY 174. Samuel Romilly's Act, an heir at law, on whom real estates descended, had not bond fide aliened, and the creditor took out execution against the lands not bond fide aliened, could the creditors have followed them ] There was no question if they had been bondjide aliened. Mr. Wigram said, if there had been a case of fraud, the creditors could have followed, but here there was no fraud. George v. Milbanke decided that if a party took without consideration, and that party alienated for valuable consideration, it would be good ; it was not the payment to the heir at law which made it good. That putting out of the case fraud, it was nothing more than the devisee exercising his legal right, and it was the same in equity as at law; so if the transaction would be f sod if money passed, what difference would there be if it was marriage'? Lord Idon, in George v. Milbanke, said that marriage was as good a consideration as money. If there is fraud, can the wife be implicated in the fraud even if the husband committed it? That notice of the will was not notice of the debts, and that there was money consideration on the part of the lady's father. Mr. Morley with Mr. Wigram contended, that according to the cases of Mat/iews v. Jones and Kynastmi v. Clark, the heir and devisee were personally liable and not the lands; that the statute 3 & 4 W. & M. c. 14, mentioned bondJiile alienations; that this settlement would come under those words, for no fraud could be imputed; that at common law the heir was liable to pay his ancestors' specialty debts, but the creditors could not follow the lands when they were aliened. That this Court followed the same rule, but if the heir aliened with fraud, the lands would be liable in the hands of the alienee, but this fraud must be concocted between the alienor and the alienee, and not be by the alienor only, for it would be a monstrous thing if one party could defeat a bimA fide purchase. That the creditors might lie by and take interest from the heir [174] or devisee, and afterwards come upon the estate of the widow and children. That the statute made the heir liable, although he alienated the estate ; but the statute gave no remedy against the estate ; it provided, specially, that the heir should be liable, but it did not follow the lands in the hands of the alienee. That the Statute of Frauds, 29 Car. 2, c. 3, s. 11, charged equitable estates, in the hands of the alienee, when aliened after the writ was issued, making a distinction between that case and a prior alienation, shewing that the creditors were not to lie by; and that statute first gave other remedies at law against equitable estates. The 47 (too. 3, c. 74, merely gave remedies to simple contract creditors, but it gave no new remedies as against the heir or the lands, but only placed the simple contract creditors in equity, on the same footing as the specialty creditors. That the marriage consideration was as good as money ; that, accordingly, by the bankrupt laws, the marriage consideration was good against the claims of the creditors, if there was no previous act of bankruptcy. That the marriage consideration was equally good within the meaning of the 3 & 4 W. & M. c. 14, as a pecuniary consideration ; the same words were used there as in the Statute of Fraudulen...
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