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making in all ten thousand three hundred pounds: And that in pursuance of the decree testator's estate, real and personal, had been sold to the best advantage; and that according to the established rights of law and equity, respondent had retained what was so due to himself; and that appellants had afterwards brought their bill, which bill was dismissed on the hearing, so far as it sought to affect Lord Kildare's decree, and that accounts were directed as stated by appellants: And that the estates had been sold, and the purchase money amounted to 13,700l. of which 11,272l. 11s. 2d. was paid to Lord Kildare; and that appellants, and other bond creditors, had agreed to divide 1550l. a particular part of the purchase money, among them; which was accordingly done, and paid them by the Master, under the direction of the Court; and there being a further sum of 800l. in the Master's hands, appellants petitioned the Lord Keeper that they might be paid their debts before the other bond creditors, as they had obtained judgments for the same, and that the other creditors insisted appellants ought not to have any preference, and that the Court affirmed the last decree on a re-hearing: And that the estate falling short to pay all the creditors, they differed about their priority; and appellants had now appealed from that decree, which however respondent insisted ought to be confirmed: And that by the rules of law and equity, he, as an executor, might retain out of his testator's estate, what he was bound for, and what was secured to him against any creditor of the same nature, with his costs: And that respondent was not principally concerned in the matter in controversy, which moved merely between the judgment and bond creditors, as to the point of preference in payment; and that the decree, so far as it related to respondent, could not be complained of. (W. Norris.)

Die Lunæ, 21 Decembris, 1702. After hearing council upon this appeal, it was adjudged that the same should be dismissed, and the decree and orders complained of affirmed. Lords Journ. vol. xvii. p. 198. (2 Vern. 435. Prec. Ch. 190. Eq. ab. 142. Vin. xi. 306. xvi. 281.)

The appellant stated, that by articles of marriage between appellant and his late wife, 22d June, 1688, it was agreed that her estate (except some leasehold interests in houses) should be at her own disposal by deed or will, notwithstanding the coverture; and that appellant being a member of the church of England, and his wife, and her trustees, Anabaptists, differences arose, occasioned, as he conceived, by some Anabaptists, and particularly respondent Burroughs; but that afterwards, by mediation of friends, they came to a second agreement, 3d July, 1691, to live and cohabit together or separately at their pleasures, and that she might dispose of her estate as she thought fit; and that in her last illness, a spotted fever, when she was non compos mentis, a will was pretended to be made by her, 6th October, 1699, whereby after a legacy of 100l. to William Taylor, her sister's son and next of kin, and other small legacies, she gave the rest of her estate to respondents, and named them executors, who were no wise related to her: And that respondents, upon her death, under colour of that will, possessed themselves of her estate when appellant was in the country, (and had no notice of her death) and privately proved the will in common form in the Consistory of London, of which, as soon as appellant had notice, he questioned the validity of the will; and after examination of several witnesses, Dr. Newton, the proper judge, upon a full hearing, pronounced sentence against the will, and granted administration to appellant: And that respondents appealed from that sentence, and afterwards proposed a reference, and artfully persuaded appellant to name Dr. Titus Oates for a referee, who was teacher of the congregation whereof respondent Burroughs was elder or deacon; and bonds of 4000l. penalty were executed next day, con-