Page:The English Reports v1 1900.pdf/471

what was due to the respondents and the other creditors of the intestate John Tong, and upon what particular securities, and the nature of their several debts; and also to take an account of the intestate's personal estate, which was to be paid to the creditors in a course of administration: And it was further ordered and decreed, that the Master should inquire into the real assets, either in law or equity, of the said John Tong; and that in taking of that account, the said advowson should be considered as real assets, and should be sold to the best purchaser, to be allowed of by the Master, and that all proper parties should join in the sale thereof, as the Master should direct; and the money arising by such sale was to be paid to the judgment creditors, according to the priority of their judgments, and then equally among the bond creditors. And this decree was to be binding on the defendant Richardson, who made default and did not appear, unless he should show cause to the contrary.

From so much of this decree as related to the advowson, the appellants appealed; and on their behalf it was insisted, (P. Yorke, N. Fazakerley) that the advowson was not assets at law, or at all liable to the demands of any of the creditors of John Tong; because at law no inheritance is liable to any execution that is not capable of raising some profits towards satisfaction of the debt, which an advowson is not. That therefore the advowson, in this case, ought not to have been adjudged assets in a Court of Equity, and especially where the bill was no more than in the nature of several actions of debt upon bonds, brought into one cause, to prevent a multiplicity of suits; for, in cases of this kind, equity follows the law, and can make no trust estate assets for the payment of debts, which would not have been assets at common law, if the legal interest thereof had been in the intestate, since the same rule of property ought to prevail in both.

On the other side it was contended (C. Talbot, T. Lutwyche), that at the common law an advowson in fee is an hereditament descendible to the heir, valuable in itself, and saleable; and even capable, if necessary, of having an annual value put upon it, and is therefore legal assets in the bands of an heir. That the present case was the stronger, in regard the legal estate in the advowson was not in the intestate at the time of his death, but in the heir at law of Fairbeard; and consequently, the equitable inheritance only descended to the appellant Edward, as the intestate's heir at law, and became equitable assets in his hands, governable by the rules of equity. That this was a case between creditors, who are always favoured in a Court of Equity, and the appellant Wekett, as claiming the advowson under a voluntary conveyance from the appellant Tong; and that the creditors would, in all events, be great losers; for, [117] even including the value of the advowson, there would be a great deficiency of assets.

After hearing counsel on this appeal, and hearing the opinion of the Judges present, in relation to a matter to them proposed; it was ordered and adjudged, that the decree complained of should be affirmed, with this addition, that in taking the account of the advowson as real assets, "the appellants should have all just allowances." (Jour, vol. 93. p. 647.)

The respondent Smith being, in 1763 (2 Black. Rep. 1039), entitled in fee to