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III BROWN.
SAY AND SEAL (LORD) v. JONES (LADY) [1729]


husband; and that what shall be found so due from her, shall be paid by the defendant her executor out of assets, and be applied in the same manner as is in the said decree after directed concerning the said testator's personal estate that shall appear to be in the said defendant's hands; and if he doth not admit assets, then an account is to be taken of assets come to his bands; and as far as it shall appear that he hath assets, he is to satisfy the said demand in a course of administration; and for the better discovery and taking the said accounts.]

Which decree, as thus varied, was declared to be the judgment of the House, and to be observed and put in execution accordingly. (Jour. vol. 23. p. 250.)


[113] Case 27.—Lord Viscount Say and Seal,—Appellant; Lady Catherine Jones, and Others,—Respondents [29th March 1729].

[Mew's Dig. xii. 1104; see 5 East, 167.]

[Lands are devised to trustees and their heirs, in trust to pay several legacies and annuities, and then to pay the surplus of the rents and profits to A. during her life, for her separate use, or as she should direct; and after her death, the trustees were to stand seised to the use of the heirs of her body, with other remainders over. Held, that this was a use executed in the trustees and their heirs during the life of A. and that she had only a trust in the surplus rents and profits during her life; and that the subsequent limitation to the trustees, to the use of the heirs of her body, was a use executed in the persons entitled to take by virtue thereof; and therefore, there being only a trust estate in the ancestor, and a use executed in the heirs of her body, their different interests could not unite so as to create an estate tail by operation of law in the ancestor.]

Viner, vol. 8. p. 282. ca. 19. 1 Eq. Ca. Ab. 383. ca. 4.

The Honourable Frances Ellis, widow, one of the daughters and coheirs of James, Viscount Say and Seal, being seised in fee of an undivided moiety of several messuages, lands, tenements, and hereditaments in Nether Norton and Oversbury Norton, in the county of Gloucester, of the yearly value of £160, duly made her will, dated the 10th of December 1685, and did thereby give and bequeath divers small legacies to several persons in her will named; after which, she devised the said lands and hereditaments in the words following:

Item, I give and devise all my manors, messuages, lands, tenements, and hereditaments whatsoever, with their and every of their appurtenances, in Nether Norton and Oversbury Norton, or elsewhere in the county of Gloucester, and also all my messages, lands, tenements, and hereditaments, in possession, reversion, remainder, or otherwise, lying in Mortlake, or elsewhere in the county of Surrey, to Thomas Erle of Charborough in the county of Dorset, Esq. and Charles Morgan of the Inner-Temple, London, Esq. and to their heirs and assigns for ever; upon trust and confidence nevertheless, and to the intent and purpose, but not upon condition, that they the said Thomas Erle and Charles Morgan, and the survivor of them, and the heirs of such survivor, shall and will in the first place out of the rents, issues, and profits of the said manors, messuages, lands, and premises, in Nether Norton and Oversbury Norton aforesaid, pay and satisfy the several legacies, devises, and bequests, hereafter mentioned to be by me given, devised, or bequeathed.

This devise was followed by a bequest of some annuities for lives, and some pecuniary logacies, after which are the following words; viz.

And I do hereby authorize and appoint, that they the said Thomas Erle and Charles Morgan, and their heirs, shall and will in the first place, reimburse themselves all such necessary charges and disbursements, as they shall from time to time be put unto concerning all or any of the matters herein contained; and from and after their reimbursement and payment of the said several annuities, or rent-charges, legacies and interest aforesaid, to be paid out of Nether Norton and [114] Oversbury Norton aforesaid, and as the same shall severally and respectively be paid, end, and determine; that then the said Thomas Erle and Charles Morgan, and their heirs, shall and will pay, or cause to be paid, all the rest and residue of the rents, issues, and profits of the said manors, messuages, lands, and premises, to the proper hand of the said Cecil Fiennes, or to such person or

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