Page:The English Reports v1 1900.pdf/1038

received the rents and profits thereof for several years, and kept the same from the said Baldwyn Higgons; and the other moiety was all along from the death of John Bright, and under his will, received by Isabella Durden, during her life, and after her death, by John Whilton and Thomas Harrington, who married her said two daughters.

In Hilary term 1707, Baldwyn Higgons brought a bill in Chancery, against the said Banister, Whilton, and Harrington, to set aside the deed of trust made to Banister; and that Higgons might have his moiety of the said estate, and an account of the rents received since his wife's death. And upon hearing that cause, on the 28th of February 1710, the court declared there was a fraud apparent in the said deed; and decreed, that Banister should convey the said moiety to Higgons, according to the uses of the deed and fine in 1698; and that Banister should account before a Master, for what rents he had received for the said moiety, since the death of Eleanor, and pay the same to Higgons. And in consequence of this decree, the Master by his report, dated the 27th of February 1711, certified that there was due from Banister, for rents received by him out of the said moiety, £517, which the Master directed him to pay to Higgons. Banister accordingly paid him £200, and was to pay him the rest at such future days, as were agreed upon between them.

In November 1712, the respondent exhibited her bill in Chancery, against the said Baldwyn Higgons, and Sir Thomas Pershall her husband, and thereby claimed one moiety of the said John Metcalfe's estate, as one of his daughters and coheirs; suggesting, that her said father was non compos mentis at the time of his death, and so not capable of making any will; and that Eleanor Metcalfe, her mother, had no right to the estate, or any power to convey the same to Bright and Higgons; and therefore prayed, that the [398] said deeds made by her mother, under which Higgons claimed a moiety of the said estate, might be set aside.

To this bill Higgons put in his answer, and thereby insisted on his title to the said moiety, and on his said decree for the same; and soon after died in possession, before any thing more was done in that cause. But being indebted to the appellant on a judgment for £500, and in other debts amounting to £200 more, as appeared by an account stated under his hand, he, in April 1713, assigned to the appellant £250, part of the money due from Banister, and directed Banister to pay the same, towards satisfaction of the said judgment debt.

In May 1713, Higgons made his will, and thereby devised the said premises to Arthur Lake and George Took, and their heirs, in trust to be sold for payment of his debts and legacies, and appointed them executors; but Lake and Took refused to prove the will, or act in the trust; and thereupon one Catherine Farnham, widow, a residuary legatee, took out letters of administration to Higgons, with his will annexed.

In Michaelmas term 1713, the appellant exhibited his bill in Chancery, against the said Arthur Lake and George Took, the trustees, the said Catherine Farnham, Lady Pershall, and George Banister, and others, praying to have the estate sold pursuant to the said Baldwyn Higgons's will, for payment of his debts and legacies; and that the appellant might be paid his debt when the estate was sold, and might have the money remaining in Banister's hands paid to him in part of his said debt.

In Easter term 1717, the respondent brought her bill of revivor and supplement against the said Catherine Farnham, Arthur Lake, George Took, the appellant, and others, stating the will of the said John Metcalfe her father, and insisting that he was non compos mentis at the time of making the same. And in this bill, as well as in her answer to the appellant's bill, she insisted, that the said will was a forged will, and made and contrived by Higgons and one Ward; and therefore prayed, that the defendants might set forth what title they had to the moiety of the said estate, of which Higgons died in possession. The appellant, by his answer to this bill, disclaimed any other title to the said moiety, but only as a creditor of Higgons; and prayed, that the same might be sold and his debt paid, pursuant to the will.

Both these causes being at issue, and witnesses examined, they were heard on the 24th of January 1718, before the Lord Chancellor Macclesfield; when it was ordered and decreed, that the respondent should proceed to a trial at law at the next York assizes, in an ejectment, to which the appellant was to appear and plead to issue, and to admit that John Metcalfe died seised in fee, and that the respondent was one of his coheirs, and entitled to a moiety of the estate, not disposed of by deed or will;