Page:The English Reports v1 1900.pdf/835

what had been the annual produce of the real estate since the testator's death, and what had been received out of the same, and by whom, and what debts were due to the said defendants and each of them.

Pending the taking of this account, the defendant Cuming, who was the surviving trustee named in the said testator's will, died; and the plaintiffs in the cause revived the suit against Mary Cuming, his widow and executrix.

The said Duncan Cuming was a creditor by mortgage upon the testator's estate for £1300, and Joseph Henry, another of the trustees, was also a creditor by mortgage upon the estate for £750, and both principal and interest on the mortgage to Henry was paid off; and Duncan Cuming received a part of his debt out of the rents of the estate.

On the 6th of December 1725, the Chief Remembrancer made his report, whereby he stated, that he had taken an account of the personal estate, and how the same had been disposed of; and found that the clear produce of the real estate amounted to £322 6s. per ann. and stated what had been received thereout, and by whom; and particularly stated the accounts between the plaintiffs Abdiel and Catherine, and the defendants; in which account he allowed the said plaintiff's interest for each half year of the annuity of £50 per ann. allowing a year from the time it fell due; and he also allowed interest on the ground-rent and taxes of the house in Golden-lane, from three months after they first became due.

The executrix of Duncan Cuming took exceptions to this report, in regard to the method of stating the account between her [101] testator as mortgagee, and the mortgagor; and also took another exception, for that the Remembrancer had allowed interest upon the legacies.

On the 28th of June 1726, the cause came on to be heard upon the exceptions to the report, when the account between the executrix of Duncan Cuming, and the heir and devisee of the testator, was sent back to the Remembrancer; but the exception, with regard to the interest on the legacies, was over-ruled; and the report, as to the matter of that exception, was confirmed.

On the 1st of May 1728, the Remembrancer made his second report; whereby £1284 17s. 4½d. was reported due to Edwards and his wife, and which, together with interest at £7 per cent. per ann. was decreed a charge on the real estate.

On the 13th of November following, the cause came on upon this second report when the court declared, that the legacies were well charged on the real estate of the said James Carroll; and decreed to the plaintiffs Edwards and his wife the £1284 17s. 4½d. with interest as aforesaid, from the 6th of June 1726, and directed the Remembrancer to compute interest for the principal sums due to them, at the rate aforesaid, from the time he had computed the same by his report, to the time of confirming the said report; which when due, the court decreed should, together with interest from that day, at £7 per cent. per ann. stand a charge likewise upon the said real estate; and which last-mentioned sum amounted to £74 7s. 2d. And it was ordered, that the plaintiffs should have and receive the sum of £120 costs of the said suit, to be paid out of the said estate; and that they might make up and inroll the said decree: and the plaintiff's did make up and inroll the same accordingly.

The respondent came of age on the 8th of January 1729, and soon afterwards entered into possession of the testator's real estates.

Henry Griffith and Ann his wife, the father and mother of the respondent, both died some time afterwards; and upon the death of the said Ann, and not till then, the respondent, as her only son and heir at law, became the heir at law of the testator.

The plaintiff Catherine Edwards, late the widow of the testator, died on the 30th of April 1730; upon whose death the said Abdiel Edwards, her husband, obtained letters of administration to her.

On the 13th of September 1748, Abdiel died, having first made his will, and thereof appointed the appellant, and several other persons, executors; but the appellant alone proved the same, and took out letters of administration of the personal estate of Catherine, unadministered by the said Abdiel Edwards her husband.

The respondent, from the time of his being in possession of the said estate, acquiesced in the said decrees, orders, and reports, and from time to time paid to Abdiel Edwards several sums for a course of years together, on account of the interest so reported due to him and the said Catherine his wife.