Page:The English Reports v1 1900.pdf/703

The £9247 7s. 8d. South-Sea annuities was never laid out according to the will and decrees before-mentioned; but the interest thereof was paid to John Papillon to the time of his death; which happened on the 20th of August 1763, without issue.

John Papillon, in his life-time, suffered a recovery of the Bentley estate, and by deed declared the uses of that recovery to himself and his heirs in fee: and some short time before his death, he made his will, and thereby devised that estate to the respondent Richard Lomax Clay and his heirs for ever, and appointed him sole executor.

Upon the death of John Papillon there were none of the defendants in the original cause living, except the appellant John Smythe, the respondent Ann Compton, and Samuel Gledhill; which Samuel Gledhill soon after died without issue.

The appellant Benjamin Boddington, on the 22d of November 1763, preferred his bill in the Court of Chancery against the said [457] Ann Compton, and others, setting forth the will and the said decrees, and that he was entitled to have one third part of the £9247 7s. 8d. South-Sea annuities, and 2s. 11d. cash transferred and paid to him, or to have an estate tail, as tenant in common, in one full third part of the estate to be purchased therewith.

Some time in March 1764, and pending the suit so brought by Boddington, Richard Lomax Clay obtained an order of course, that the said decrees might be inrolled nunc pro tunc, and thereupon procured the same to be signed and inrolled; and they were in fact inrolled in the month of March 1764, and not sooner.

In Michaelmas term 1765, the appellant John Smythe brought his bill of revivor and supplement against the representatives of the parties in both the former causes, and the same were accordingly duly revived by order, against William Hippisley, as the sole executor of Phebe Voyce, who survived John Nicholas, and died without issue, (the said William Hippisley being thereby the representative of the first testator Samuel Papillon;) and against Martha Steere and Lee Steere, as executors of Lee Steere, deceased, in the testator's will named, who survived William Voyce and John Gledhill, the other trustees therein named, and as the said Lee Steere the son was heir at Law of the said Lee Steere, the surviving trustee; and against the appellant Edward Hippisley, as the eldest son and heir of the body of Elizabeth Hippisley, deceased; and against the appellant Benjamin Boddington, as the eldest son and heir of the body of Elizabeth Boddington, deceased; (the said Papillon Ball and Benjamin Ball, who were her brothers, being then both dead without issue;) and against the appellants Francis Hobbs and Mary his wife, as Mary was the only child and heir of the body of Mary the wife of Thomas Robjent; and against the respondent Ann Compton, and against the respondent Richard Lomax Clay, as the only son and executor and devisee of Richard Clay, who was the executor and devisee of the said John Papillon, and who was then in possession of, and claimed the estate at Great Bentley; and was also in possession of a very large personal estate, under the will of John Papillon.

The appellant's counsel having, after the signing and inrolling of the said two decrees, discovered errors therein, he, in Easter term 1766, applied by motion to the Lord Chancellor, to set aside the order for signing and inrolling the said decrees, as being irregularly obtained; the original cause, when such order was made, being abated by the death of all the parties, except the appellant John Smythe, and the respondent Ann Compton, and such cause not revived, or any notice given to either of the parties interested under the said Samuel Papillon's will, previous to the making of such order for inrollment; and for that the same was made during a suit depending for relief of the parties interested under such will as aforesaid; and for other causes of irregularity: but his Lordship refused to set aside the order.

Whereupon the appellants Smythe, Hippisley, and Boddington, on the 17th of January 1767, preferred their petition to the [458] Lord Chancellor, praying that they might be at liberty to file a bill of review, in order to have the said two decrees reversed, or varied, in the several matters therein stated to be erroneous; and in such other respects in which any error or mistake should appear. And this petition being heard on the 24th of February following, his Lordship, after having taken some time to consider, gave his opinion, that he did not think himself at