Vickers v Oliver
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1842 |
| Date | 31 January 1842 |
| Court | High Court of Chancery |
English Reports Citation: 62 E.R. 859
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 112; 6 Jur. 273.
1,Y..ft C. a C. 211. TICKERS V. OLIVER 859 [211] vickees v. oliver. Jan. 26, 31, 1842. [S. C. 11 L. J. Oh. 112; 6 Jur. 273.] Upon the death of a testator who had devised his real estates for payment of his debts a bill was filed on behalf of his creditors, both by specialty and simple contract, to have his assets administered and his real estates marshalled. In that suit a receiver was, in 1821, appointed of all his estates. It was afterwards discovered that the testator had died seised of an estate which had not passed by his will, but had descended to his heiress at law, M., upon whose death, in 1822, it descended to O. In 1840, eighteen years after M.'s death, a supplemental bill was filed against 0. by one of the Plaintiffs in the original suit, being a simple contract creditor of the testator, praying to have the benefit of that suit as against the descended estate. Held, that as the original suit was treated as a suit for the administration of all the testator's real estates, and as the Plaintiff sought to affect the descended estate by standing in the place of the specialty creditors, he was not barred by the Statute of Limitations, but was entitled to have the descended estate marshalled in his favour. A simple contract creditor who has acquired a right of marshalling real estate is not barred by the lapse of less than twenty years. Testator devises all his real estate in trust for the payment of his debts. At the time of making his will he is tenant in fee of several estates, and tenant in tail, with remainders over, with remainder to himself in fee, of an estate called B., of which he afterwards suffers a recovery and dies without republishing his will. Qucere, whether, in the administration of his assets, the estate B. is applicable to the payment of his specialty creditors before the devised estates 1 William Cheney Hart, formerly of Hope Bowdler, in the county of Salop, Esquire, by his will, dated the 21st May 1818, gave and devised all that dwelling-house in Barker Street, Shrewsbury, describing it as the late residence of his brother, and by him devised to him, the testator, in fee, unto his, the testator's, sister, Hannah Cheney Hart, for life; and, after bequeathing several pecuniary and specific legacies to various persons, amongst whom was Anne Marsh, he ordered that all his just debts, funeral expenses and all the legacies given by his will should be payable out of all his estate, real and personal; and he gave, devised and bequeathed all his property and estate, real and personal, whatsoever and wheresoever, in possession, reversion or remainder, unto the Rev. George Watkin Marsh, his heirs, executors and administrators, upon trust to raise by sale or mortgage, of all or any part thereof, a sufficient sum to pay off all such his debts, and the said legacies, and all other incidental expenses. And he empowered the trustee to give receipts, &c. And as to the surplus of all his property, real and personal, he gave the same absolutely to his natural sons, Eobert and William Mainwaring, as tenants in common, and in case of their both dying under twenty-one, to his heirs or heirs at law; and he appointed the Mainwarings and George Watkin Marsh executors of his will. [212] The testator, at the time of making his will, was not, as he considered himself, tenant in fee under his brother's will of the house in Barker Street, but tenant in tail, with remainder to his sisters in tail, with remainder to himself in fee. He afterwards suffered a recovery of that estate, and died on the 28th December 1818, leaving Sarah Cheney Marsh, wife of George Watkin Marsh, his only sister and heiress at law; his other sister, Hannah Cheney Hart, having died in his lifetime, without issue. George Watkin Marsh proved the testator's will, and entered into possession of *he testator's real and personal estate, the Mainwarings being infants. On the 24th February 1820 the Plaintiff and his partner, John Pritchard, being simple contract creditors of the testator, filed their bill on behalf of themselves and all other the creditors of the testator, two of whom were stated to be specialty creditors, against Mr. and Mrs. Marsh (the latter being alleged to be the heiress at 860 TTOEBBS.W. CffiLVEB 1T.&C.C. C.213, law of the testator), and against the legatees under the testator's will, praying for the administration of the testator's personal estate ; and,:if necessary,; that the testator's will might be established, and an account taken of the estates which the testator was-seised of or entitled to at the time of his death, and that a sufficient part thereof might be sold; and, if necessary, that the assets might be marshalled. In the answers which were put in to this bill the house in Barker Street was not-treated otherwise than as passing under the testator's will; and an order was afterwards made for a receiver of all the estates. In March 1822, after putting in her answer, and after publication passed, but before the hearing of the cause, Mrs. Marsh...
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...3 Jo. & Lat. 260. Wright v. Simpson 6 Ves. 714. Wright v. Morley 11 Ves. 22, 23. Powell v. Robins 7 Ves. 209. Vickers v. OliverENR 1 Y. & C., C. C. 211. Busby v. SeymourENRUNK 1 Jo. & Lat. 527; S. C. 7 Ir, Eq, Rep. 433. Putman v. BatesENR 3 Russ. 188. Lane v. HardwickeENR 9 Beav. 148. Harri......