(B) Kule as to injunctions where plaintiff is a bankrupt. November the 10th, 1748. Anon'. Vide title Bankrupt, under the division, Bankruptcy no Abatement: Vide title Marriage, under the divifion, Where it is clandeftine. Vide title Will, under the divifion, The Power of this Court over the Prerogative Court. CA P. LX. Infolvent Debtor. Auguft the 7th, 1746. Ex parte Green. Vide title Bankrupt, under the divifion, Rule as to the Infolvent Debtors Alt under Commissions of Bankruptcy. САР, CA P. LXI. Jointenants and Tenants in Common. Hilary Term, 1737. Prince v. Heylin. a Tr. Atk. 55. 122, 123, 380. pl. 254,441. pl. 282. 3 Tr. Atk. 524, 525, 526, 733, 734. 3 Bur. 1496. 5 Bur. 2604. HE teftatrix in this cafe being a leffee for a term of Case 235. to J. P. and Te years, of two houses in London, devised the fame to her A teftatrix denephew John Prince, pewterer, and John Heylin, clerk, gene- vifes two houfes rally, and then the will goes on thus," and my will and mean- 7. H. generally, ing is, that the rents of my faid two houfes fhall be equally shared and then fays my "and divided between them, the faid John Prince and John meaning is, that Heylin, clerk, as aforefaid." The teftatrix foon after dies. 66 The devifees fhall take as tenants in common, and not as jointenants. two houses fhould be equally Shared between J. P.and J. H. John Prince furvived the teftatrix, and died in 1721, ever fince the premiffes have been enjoyed by the defendant as the furvivor. This bill is now brought by the adminiftrator of Prince, to have an account of the rents and profits. The question was, Whether, by the words in the will, a jointenancy, or a tenancy in common, was created. It was agreed clearly, that if the words equally shared had been annexed to the thing itself, they would have created a tenancy in common, but infifted upon at the fame time, that the former are plainly words of jointenancy, and the subsequent amount only to a direction in what manner the profits fhould be received during the lives of the devifees, viz. to each of them an equal fhare, which is faying no more than what otherwife the law would direct. Lord Chancellor : I am clearly of opinion, the devisees were tenants in common, that had the teftatrix exprefsly directed the rents to be shared during the joint lives of the devifees, it might admit of fome doubt, but with regard to the time, the latter part of the devife was as general as the former, and the word rents will as properly pass the interest in the houses, as any other word whatever. This is therefore a plain tenancy in common. With regard to the time the defendant is to account for the 7. H. having on rents and profits, there having been no entry made or demand the death of 7. P. taken poflefof the rents, &c. it has been infifted on for the defendant, he fion of the two ought to account only from the time of the bill filed: Now in houses as furvithe case of jointenants or parceners, there is a mutual truft vor, and enjoyed them ever fince, muft account for the rents as far back as the death of 7. P. and not from the filing of the bill between Ejectment not one tenant in If the statute between them, and they are accountable to each other, without regard to the length of time; it is otherwise in the case of tenants in common, and this is an adversary poffeffion maintained by the defendant against the plaintiff ever since the death of his inteftate: However the statute of limitations is a bar to any demand further back than 6 years, and by the 4 Ann. c. 16. S. 27. an action of account lies for one tenant in common against another, and fuch action is expressly mentioned in the ftatute of limitations, and as there is no remedy at law, there can be no reafon for any in equity. I am of opinion the defendant must account for rents and maintainable by profits from the death of the inteftate, the nature of the estate common against devised not admitting of an adverfary poffeffion, in regard of another, without the privity that is between tenants in common: An ejectan actual oufter. ment is not maintainable by one tenant in common against of limitations be another, without an actual oufter: No advantage can be now neither pleaded, taken of the ftatute of limitations, it not being pleaded by the defendant, or infifted on by his anfwer, which in all cafes is neceffary, in order to have the benefit of fuch bar to the plaintiff's demand, though indeed the court sometimes, when there is a very stale demand, notwithstanding the statute is not pleaded, will in it's discretion reduce that demand to a reasonable time, and makes use of the ftatute of limitations as a propor rule to go by in the exercife of that difcretion. nor infifted on by the answer, you cannot have the benefit of Such bar. Cafe 236. A.devifes all the refidue of her eftate to her two c nieces Mary and Elizabeth, daughters to her nephew William his wife, whom hom the defires to be Owen, and Anne trustees for their March the 2d, 1738. Owen v. Owen. HE teftatrix, after feveral legacies, bequeaths in these queath to my two nieces Mary and Elizabeth, daughters to my nephew William Owen, and Anne his wife, whom I de"fire to be trustees for their children, to take care of their legacies for them, they being of tender age, and my will is, that my eftate be equally divided between my two nieces, Mary and Elizabeth, whom I nominate and appoint my executrixes accordingly." children, to take care of their legacies, and then fays, My will is, that my eftate be equally divided besveen Mary and Elizabeth, whom I appoint my executrixes accordingly: One of the nieces died in the life of the teftatrix, and all the next of kin had small legacies, except one. The devife to the two nieces is not a jointenancy, for the words equally divided, though not annexed to the clause which gives the refidue, can relate to that only, and if they had been both living at the death of the testatrix, they would have taken as tenants in common. One of the nieces died in the life of the teftatrix. The question was, Whether William Owen, and Anne his wife, ftand in the light of trustees of a moiety of the refidue for the next of kin, and whether the teftatrix was to be confidered as dead inteftate in refpect to that moiety, or whether the devife to the two nieces was a jointenancy, and William Owen and Anne his wife are trustees for the furviving niece only. N. B. N. B. All thofe who were next of kin, and intitled under the statute of diftributions, had small legacies left them, except one. For the plaintiffs the next of kin were cited, the cafes of Page v. Page before Lord Chancellor King, 2 Wms. 489. and Holderness v. Rayner, before Lord Hardwicke. Mr. Brown, for the defendant the furviving niece, urged the rule of Civil law, that where heirs were inftituted (which words are of the same import as legatees in our law), and one dies, the legacy goes to the reft by way of accretion, because the fame perfon cannot die teftate and inteftate as to the fame thing: He relied much on the authority of Hunt v. Berkeley, at the Rolls the 24th of June 1731, before Sir Jofeph Jekyll*. Lord Chancellor : The firft queftion that hath been made in this cause is, Whether these two nieces, if they had survived the teftatrix, would have been tenants in common. It is clear to me, that, if both of the nieces had been living, Though the words the words to be equally divided would certainly have made a te- words equally to be divided in a nancy in common; for though, as hath been truly faid, these strict settlement words in a strict fettlement at Common law have never been de- at Common law have never been termined barely of themselves to make a tenancy in common, yet in a will it is fettled that these words will make a tenancy in common, both with regard to real and perfonal estate. determined, barely of them felves to make a tenancy in com mon, yet it is fettled they do fo in a will, both with regard to real and personal estate. The only diftinction attempted by the defendant's counsel in this case is, that the words equally divided are not annexed to the claufe that gives the refidue, and therefore must be relative to the fubfequent clause which nominates the two nieces executixes. But the conftruction would be abfurd, because as executors The intereft and there can be no divifion of their intereft, or authority, for authority of executors is joint, though a man may appoint executors in fuch a manner, that and cannot be their authority may commence or determine at different times, divided into difyet he cannot nominate perfons executors, and confine one of tinct powers, of them to one branch of his eftate, and another to another, fo appointed as but they may be. for they have a joint authority, which extends to the teftator's that their autho whole eftate, and cannot be divided into diftinct and feparate tity may compowers, and therefore thefe words must be applied to the gift of mine at different the beneficial intereft: If therefore they are tenants in com- times. mon, what is the confequence of the death of one in the life of mence or deter Mary Berkeley poffeffed of a perfonal estate on the 8th of December 1720 made her will, whereby the gave both fpecifick and pecuniary legacies to her brother Francis Woolmer, and to her two fons in law the defendants, and likewife gave legacies to a child of each of them, and alfo legacies to other perfons, and then gives all the reft and refidue of her perfonal eftate to her before-mentioned brother and fons in law, to be equally divided among them, and makes them executors: In January 1722 Francis Woolmer died, afterwards in March 1725 the teftatrix died. The question was, Whether the third part of the refiduum devifed to Francis Woolmer, fhould go to the next of kin, or to the furviving executors; and the Mafter of the Rolls decreed for the executors. the The legal intereft in a lapfed legacy is in the execu tor, but the be neficial in the next of kin of the teftator. As an heir does eftate by the in- the teftatrix? Why, clearly where it is either a pecuniary legacy, or of a real estate, that is given to two perfons, to be equally divided between them, and one of them dies in the life-time of the teftatrix, it is a lapfed legacy, and the fhare of the perfon fo dying in the prefent case ought to be confidered as fuch. The next question is, Whether this fhall go to the furviving executrix, or be diftributed amongst the next of kin, as an undifpofed moiety. There are two things to be confidered in regard to this moiety, the legal intereft, and the equitable intereft. By the maxims of law, a legal intereft of a lapfed legacy certainly paffes to the executor; but in the judgment of this court the trust and beneficial intereft is given likewise, and according to the cases determined here fince Fofter and Munt, in 2 Vern. 473. must go to the next of kin, tho' in all those cafes, the legal intereft was unquestionably allowed to be in the executor. Page v. Page in 2 Wms. 489. is a ftrong cafe, Where one devifed the refidue of his perfonal eftate to fix perfons to each a fixth part, and made them executors, and one of them dying in the life-time of the teftator, Lord Chancellor King was of opinion the legacy did not furvive, and decreed his share to the next of kin This cafe, on the 29th of August 1734, was cited before Lord Talbot, and followed by him, and by me afterwards in the cafe of Holderness v. Reyner. Sir Jofeph Jekyll late Mafter of the Rolls, in Hunt v. Barkley, differed intirely from Page v. Page, but this is only one cafe against many, and the reafon he went on there is not fufficient anceftor, but by to fupport the doctrine of that cafe; for the next of kin in this act of law, fo respect are fimilar to an heir at law, and as he does not take by with regard to the intention of his anceftor, but in his own right by act of perfonal, the next of kin take law; fo with regard to the perfonal eftate, the next of kin in fucceffion ab take it in like manner in fucceffion ab inteftato, and not by the by the intention intention of the teftator, but as caft upon them by the law: Therefore I am of opinion the plaintiffs are intitled to a diftribution. inteftato, and not of the teftator. No person can .be a trustee in law, unless he has a vefted intereft in the shing given. William Owen and Anne his wife, the father and mother of the two nieces, are no more than natural guardians to take care of this legacy, for they cannot be in law trustees, unless some interest in the thing given were actually vested in them. February the 26th, 1736. Partridge v. Pawlet. Vide title Executors and Adminiftrators, under the divifion, What fhall be Affets. Vide title Partition. CA P. |