Page:The English Reports v1 1900.pdf/777

only benefit of Dr. Herbert, his executors, administrators, and assigns, and for no other use whatsoever.

[13] On the 12th of the same month, Dr. Harbert, by a deed-poll, declared his intent and meaning, in vesting the property of the debt already arisen, or which should arise as aforesaid, in the said trustees to be; that upon the death of Dame Mary his wife, and not before, they might be enabled, and he did thereby direct them, to pay thereout, in the first place, to Sir Thomas Cross, bart. £500 and £500 to such person as he should appoint by his will, to fulfil the will of his niece Mary Cullum, of whose will be was sole executor; to the Right Honourable the Countess of Granville £3900 with interest, in full discharge of all her demands upon him; and as to the residue of the said debt then due, and thereby not disposed of, or which thereafter might become due to him in manner aforesaid, he directed the trustees to pay the same, after payment of the sums aforesaid, to such person or persons, and for such uses as he should by will, deed, or otherwise direct; and if it should happen that he himself did, by any other way, in the mean time, satisfy and discharge all or any the three before mentioned sums, then it should be lawful for him to direct the payment and disposal of the like sums respectively so satisfied and discharged, to such other uses as he by his will, deed, or otherwise, should appoint.

On the 26th of October 1729, Dr. Herbert died intestate, without making any other disposition of the premises than as aforesaid.

On the 2d of April 1730, the Lady Bromsall died, before she had taken out letters of administration to the Doctor; and the appellant, being a relation of hers, took administration of her personals; and soon afterwards Susanna Herbert, widow, the Doctor's mother took out letters of administration to him.

In Michaelmas term 1730, the Lord Carteret and Sir Clement Cotterell preferred their bill in Chancery against both the administratrixes, and against Sir Thomas Bromsall's co-heirs and others, to have the accounts carried on and finally taken, and that the co-heirs might pay what should appear due thereon; and that the estate might be sold, and the monies arising by such sale be applied towards satisfaction of the mortgage; and afterwards, towards payment of the sums mentioned in the deed of the 12th of June 1729; and that the residue might be paid to such persons as should appear to be entitled thereto; and that the tenants might be injoined from paying their rents to the defendants.

To this bill the appellant put in her answer; and thereby submitted to the Court, whether any thing passed by the deed of the 9th of June 1729; and said, that she being cousin-german to Lady Bromsall, and one of her nearest kindred, she, with the advice and consent of the rest of the relations in equal degree, took out letters of administration of Lady Bromsall's estate; and thereby, if the annuity of £500 a-year, or the arrears thereof, which became due to Lady Bromsall out of the estate of Sir Thomas Bromsall, did not pass to the trustees by the deeds before-men-[14]-tioned, the same, together with the interest and arrears, or such part of the same as did not pass by the said deed, became due and payable to the appellant, as administratrix and that in that right she was also entitled to one moiety of the personal estate which Dr. Herbert died possessed of, or entitled to.

In Trinity term 1731, the appellant exhibited her cross bill against the respondents, in order to revive the former proceedings in the cause, wherein Lady Bromsall was a plaintiff, and to discover the personal estate of Dr. Herbert; and in order that the premises might be sold for discharging the several incumbrances upon them, and particularly the arrears of the said annuity, and interest for the same; and that she might be paid thereout, what was due to Lady Bromsall at the time of her death.

Both these causes being at issue, were heard before the Lord Chancellor King, on the 1st of June 1783; when his Lordship was pleased to order and decree, that it should be referred to the Master to take an account of what was due to the defendant Nightingale, the mortgagee, for his principal, interest, and costs; and that the plaintiffs should pay what was so due, at such time and place as the Master should appoint; and that thereupon the defendant Nightingale should re-convey the mortgaged premises to the plaintiffs, or to whom they should appoint; and should deliver the deeds and writings in his custody or power relating to the premises, upon oath to the plaintiffs, or whom they should appoint; but in default of such payment it was ordered, that the plaintiff's bill, as against the defendant Nightingale, should stand