Page:The English Reports v1 1900.pdf/774

same ought to be made good to Sir Lyon, out of the surplus of her own separate personal estate, before such surplus should be applied to the increase of the charities.

And therefore the Court established the disposition made by Dame Lenox, of her own separate personal estate, and also the charities; and referred it to a Master to take the account, and tax the defendant her costs, and to certify any matter of doubt or difficulty to the Court specially.

The Master, by his report of the 26th of May 1709, certified, that the separate personal estate of the said Dame Lenox amounted to £1062 5s. 5d. or thereabouts; but he stated specially, that by the proofs taken before him, it appeared, that Mr. Cuthbert Harrison left in a portmanteau trunk £1100 in silver, and 370 odd guineas, which, after his death, Danie Lenox took into her custody, and gave Sir Lyon only £500 of it; that she had laid out part of this money in building a house, and applied other part of it in payment of some debts which she had contracted before her marriage, and of her father's funeral expences, amounting in the whole to £460 16s. 6d.

The cause being heard upon this report, on the 19th of January 1710, before the Lord Keeper Harcourt, it was ordered, that the surplus of the said £1100 and 370 odd guineas, over and above the said £500 and £460 16s. 6d. should be made good to Sir Lyon Pilkington, according to the decree.

But from both these decrees Sir Lyon appealed; insisting (S. Cowper, F. Wilkinson), that by this reference to the former decree, his demand, which was that of a creditor, upon the separate estate for the concealed money, was postponed to the voluntary dispositions of Dame Lenox, by the deed of the 11th of July 1706; and that the appellant being a total stranger to this concealment, at the time of [9] pronouncing that decree could not possibly see the consequence of the direction thereby given, and therefore ought not to be prejudiced by it. That if there had been sufficient of Dame Lenox's personal estate to have answered the appellant's demand, the dispositions made by her, though voluntary, might have been satisfied, as well as the demand; but as in the event of the account it appeared, that there would be no surplus remaining for the appellant's satisfaction, it was become necessary to determine, whether he was not entitled to have a prior satisfaction as a creditor, with respect to the voluntary donees, who were in the nature of legatees, and claimed only under the deed of appointment. And if it should be objected, that by this means the charities would be avoided; it might be answered, that they would be equally avoided, if the voluntary dispositions took place; for, according to the account which both sides acquiesced in, there was like to be no surplus to go in augmentation of the charities. And therefore, it was hoped, that both the decrees would be so rectified, as that the appellant might have a satisfaction for the money which had been fraudulently concealed from him.

On the other side it was said (J. Jekyll, R. Belasyse), that Lord Cowper's decree was founded upon the appellant's answer to the cross bill; whereby he admitted, that Mr. Harrison's personal estate amounted to about £1500; that he had received £500 of it, and that he left the whole management and disposal of the residue to Dame Lenox, without interference or contradiction. That the appellant had long acquiesced in, and proceeded upon this decree; and if it should now be reversed, the respondent would not only be a considerable loser, by taking the burthen of the trust upon her, but all the gifts, dispositions, and charities of Dame Lenox would be totally disappointed.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree and order therein complained of, affirmed; and it was further ordered, that the appellant should pay to the respondent the sum of £20 for her costs. (Jour. vol. 19. p. 294.)