Page:The English Reports v1 1900.pdf/738

reciting, inter alia, that Medley had a mortgage on the trust estate to the value of £1785 and had paid £831 5s. 2d. for debts and legacies, and £105 6s. 8d. for obtaining a decree of the Court of Chancery therein-mentioned, and had undertaken to pay the respondent Selwyn her £100 at her age or marriage, and to pay the rest of the creditors and legates, and that the overplus was £552 12s. 9d. which was to be divided according to the will; and that Charles Noke and the respondents being infants, Medley had secured their shares thereof at interest at £5 per cent. And by this indenture, the trust estate was sold to Medley and his heirs, at the price of £3650.

The appellant also set forth an indenture quinquepartite, of the same date with the last deed, reciting, that the trustees had not intermeddled in the trust, and were not to stand to any errors in the computation of the overplus, which, to prevent all mistakes, the appellant and Charles Samber, as next friend to Charles Noke and the respondent Selwyn, had, with great care, revised; and reciting, that the trustees and the survivor and his heirs should be indemnified in all events, Medley demised to the trustees, their executors, etc. five pieces of marsh land, for the term of 500 years, conditioned for Medley's procuring releases from Charles Noke and the respondent Selwyn; and, in the mean time, for indemnifying the trustees from all suits, etc. on account of the trust and overplus-money.

The appellant then insisted, that the trust estate was sold within the time limited by the will, for £3650 and no more; and that the surplus was no more than £552 12s. 9d. And he denied receiving any part of the respondent Selwyn's share; but said, that the same remained in Medley's hands, secured as aforesaid, together with her £100 legacy.

The other defendants having answered, and the cause being at issue, was heard on the 16th of July 1723, when the Court de-[509]-clared, that the respondent Selwyn was well entitled to the said £100 payable at her age of twenty-one, or marriage; and also to the silver tankard and gold seal specifically bequeathed, and to a moiety of the rents, profits, and produce of the houses in Watling-street, from the time of Lady Selwyn's death, and to interest for the nett produce thereof, from the respective times the same was received; and likewise to a fourth part or share of the surplus of the trust estate, and to interest for her share of the nett money arising by the sale thereof; and it was therefore decreed, that the appellant should account before the Deputy, for all the personal estate of the testatrix come to his hands, and should be examined upon interrogatories touching the same; and the Deputy was to see whether the trust estate was fairly sold, and for the most money that could be got for the same. And that the appellant and the defendant Medley should account before the Deputy, for all the monies arising by sale of the trust estate, and for the interest of the respondent. Selwyn's share thereof, from the time of the sale, and for her share of the rents and profits thereof, until such sale; all just allowances being made to the appellant, and the said defendant Medley. And it was further ordered and decreed, that all the personal estate of the testatrix, not specifically devised, should stand charged in the first place with the payment of her debts, funeral expences, and legacies, so far as the saine would extend, and should be applied towards satisfaction thereof, in ease of the trust estate; and if the personal estate should not be sufficient to satisfy the same, then the surplus of the trust estate should be subject and liable to the payment thereof; and that in taking the said account, the Deputy should charge the same accordingly, and state what was due to the respondent Selwyn for her share of the surplus of the trust estate, and for the interest thereof as aforesaid, and for the profits thereof until the same was sold.

After this decree, the respondent Darby intermarried with the respondent Selwyn; whereupon the suit was revived, and the cause being re-heard, upon the appellant's petition, on the 10th of June 1725, the said decree of the 16th of July 1723 was ratified and confirmed.

From this decree and the order of affirmance, the appellant appealed, contending (P. Yorke, W. Peere Williams), that the benefit of the devise of the residuum of the testatrix's personal estate, though expressly bequeathed to him by the will, was taken away from him by the decree. That the testatrix, by her will, had first created a particular fund for the payment of all her debts, legacies, and funeral expences, by devising her real estate to trustees to sell, and with the money thereby