Page:The English Reports v1 1900.pdf/536

time of [210] the said Earl, together with the interest thereof, should be paid to the defendant the appellant, the Countess Dowager of Warwick. But that what interest of the said £10,000 the said Master should certify had accrued due since the said Earl's death, should be paid to the respondents Francis Edwards, and the Lady Elizabeth his wife; and it was thereby further ordered, that the defendants the trustees should be thereout paid their costs, according to the course of the Court; but his Lordship did not think fit to give any costs to the other parties.

From this decree the appellants appealed; and on their behalf it was insisted, (T. Lutwyche, T. Reeve) that by the fine which Earl Edward Henry had levied, the estate tail in the premises comprised in the said marriage-settlement was well and sufficiently barred; and all the uses, limitations, and restrictions, concerning the said £10,000 were an effectually destroyed, or ought to be so construed in a Court of Equity, that Earl Edward Henry, after the said fine, ought to be adjudged in equity to be possessed of the said £10,000; or at least that the trustees stood possessed thereof, in trust for him, his executors and administrators, as his own absolute and unqualified property and personal estate, freed and discharged from all other uses, trusts, limitations, and agreements in the said settlement; and that upon his dying intestate without issue, the same belonged to, and ought to be accounted for and paid to the appellants, as his mother and sister, by virtue of the letters of administration and the statute of distributions; and this the rather, because Earl Edward Henry had a right to demand and have the said £10,000 without laying the same out in land; and there being no estate now subsisting in the manors of Abbotts Kensington, &c, under the settlement, the agreement for laying out the said £10,000 in the purchase of lands to be settled to the same uses, had ceased and become absolutely determined, and not to be carried into execution by a Court of Equity: and therefore it was hoped, that the decree would be set aside and reversed; and that the trustees would be decreed to assign over the securities for the said £10,000 and interest, to or for the benefit of the appellants.

On the other side it was said, (P. Yorke, W. Peere Williams) to be the proper province of a Court of Equity to compel a specific performance of agreements. That in all cases where money is agreed to be invested in the purchase of lands, for the benefit of any person and his heirs, though such person dies. before the purchase made, yet if he shall have made no disposition of the monies, the benefit thereof shall go to his heirs in the same manner as the lands would have gone, if the purchase had been actually made; and it was the stronger in the present case, because, by the express words of the settlement, it was agreed, that until such purchase should be made, the interest and proceed of the said £10,000 should go and be paid to such person and persons as from time to time should be entitled to the rents and profits of the settled estates; and the person entitled to those estates, and the rents and profits thereof, from the death of Earl Edward Henry, was the respondent Lady Elizabeth [211] Edwards. That the late Earl never made any disposition of this £10,000 or any part thereof; and the fine levied by him of the settled estate was immaterial, in regard he had as good a power before levying this fine, of disposing of the said estate and the £10,000 in money, against all but his own issue, as he had after the fine was levied; and as he never had any issue, the fine made no alteration. That there seemed to be no reason to say, that be cause the fine comprised the manors, it therefore comprised the trust of the £10,000; because a fine cannot be levied of money, or of the trust of money. But if it were admitted that the fine did extend to the trust of this £10,000, yet even in that case, the uses of it being declared to Earl Edward Henry and his hairs, the respondent Lady Elizabeth, being entitled to the manors as his heir at law, would, for the same reason, be entitled to the money. And lastly, that in all doubtful cases or constructions in a Court of Equity, the heir ought to be preferred before an administrator, or executor; and as there were very many determinations in Courts of Equity agreeable to the present decree, it was hoped, that the same would be affirmed, and the appeal dismissed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of, affirmed. (Jour. vol. 22. p. 266.)