Page:The English Reports v1 1900.pdf/1335

only son, an infant under the age of 19. And soon afterwards the executors proved the will.

In Hilary term 1709, Lord Somers and Halifax, and John Lord Montagu (then called Marquis of Monthermer,) and the respondent Lady Beaulieu, then the only children of John Duke of Montagu, by their next friend and the other persons entitled in remainder under the will of Duke Ralph, exhibited a bill [280] in the Court of Chancery, against Duke John, then also an infant, and against the said Edmund Dummer and Thomas Dummer, and the several agents and receivers of Duke Ralph's estates; setting forth his will, and charging, that doubts and difficulties had arisen in relation to the trust thereby created; for that Duke Ralph having laid out great sums of money in buildings and gardens, and in the improvement of his estate, became considerably indebted to several persons, not only by mortgage and other real securities, but also by bond and simple contract, and that the creditors by simple contract and personal security were very importunate and clamorous for their debts, many of them having been a considerable time out of their money, and threatened to commence suits for the recovery of their debts; and therefore the bill prayed an account of Duke Ralph's estate, and that the court would give directions touching the application thereof, and the payment of his debts, and that Lords Somers and Halifax might receive the directions of the court, from time to time, for their acting in the said executorship and trust.

Mr. Edmund Dummer (one of Duke Ralph's executors, and who had been his principal agent) by his answer to this bill admitted, that Duke Ralph died considerably indebted by judgment, specialties, and simple contract, and that some part of the debts were due to necessitous persons, who deserved pity and compassion; but he much feared and believed, that Duke Ralph's personal estate would not be sufficient to pay all his debts, as far as he had then discovered.

Upon hearing of this cause, on the 1st of August 1710, it was decreed, that an account should be taken of the personal estate of Duke Ralph, and particularly of the value of his household goods and furniture, which the court directed to be particularized and valued, and of the ready money which the testator left at his death, and of his jewels and other valuable things, and directed the master to see a value set thereon; and an account was also directed of the rents due and in arrear at the testator's death, and also for the woods fallen at his death; and it was ordered, that notice should be given for the creditors to come in and prove their debts before the Master, and that from the time any of the creditors should have proved their debts, and the reports touching the same should be confirmed, such debts should carry interest until paid; and that what should appear to be the balance of the receivers accounts, should be brought before the Master, to be applied in satisfaction of the said debts.

Inventories of the household goods, plate, and furniture of Duke Ralph at his several houses, had been taken before the making this decree. And the said Edmund and Thomas Dummer, the two acting executors, and all the stewards and agents of Duke Ralph's estates, were examined upon interrogatories, pursuant to the decree, and by their examinations they set forth the accounts of the several parts of Duke Ralph's estates; and the [281] creditors came in and proved their debts before the Master, but no report was made under the decree, because it appeared upon such inventories, examinations, and proofs, that the personal estate of Duke Ralph was greatly deficient to pay his debts. And Duke John making good such deficiency out of his own estate, and having paid off all the debts, took assignments of the specialty debts to trustees, and thereby became entitled to be paid the same with interest out of Duke Ralph's real assets, or any personal estate that might afterwards arise.

Duke John having attained his age 21, by lease and release, dated the 13th and 14th of April 1711, conveyed the Warwickshire estate to Edmund and Thomas Dummer, to the intent that they might be tenants of the freehold of the premises, until a common recovery should be had; which recovery was thereby declared should enure to the use of the Lords Somers and Halifax, Edmund Dummer, and Thomas Dummer, their heirs and assigns, in trust, to settle and dispose of the premises in such manner as Duke John should by deed or will appoint; and for want of such direction or appointment, in trust for Duke John, his heirs and assigns for ever. And a common recovery was accordingly suffered, in Easter term 1711.

In March 1711, the Warwickshire estate was made a security by mortgage, for £6000, lent by Sir James Montagu, to Duke John; and in this mortgage the trustees,