See 3 Tr. Atk. 511 pl. 178, 547. pl. 200, 603. C A P. XCV. Prochein Amy. February the 13th, 1737. At the Rolls. Anon'. Prochein amy need not be a relation, but then he must be a perfon of fubftance because liable to cofts. CA P. XCVI. Prohibition. Vide title Marriage. C A P. XCVII. Purchale. (A) Df purchasers without notice. (B) Whether lands purchased after a will, pafs by it. (A) f (A) Df purchafers without notice. November the 15th, 1738, a Brandlyn v. Ord, 2 Tr. Atk. 8. 302. pl. 108. T was faid by Lord Chancellor in this caufe, that a man who Case 266, purchases for a valuable confideration, with notice of a A man who voluntary fettlement from a perfon who bought without notice, purchases for a fhall fhelter himself under the firft purchafer, yet it must be the valuable confivery fame intereft in every refpect. deration, with notice of a voluntary fettlement, from a person who bought without notice, fhall shelter himself under the first purchaser. defend himself in He likewife faid, he never knew a man defend himself in A man cannot this court, as a purchaser for a valuable confideration under this court, as a articles only; if he is injured, he muft fue at law upon the purchafer for a covenants in the articles. valuable confideration, under articles only. His Lordship alfo laid it down as a rule, that where the de- Where defendfendants plead a former fuit, that the court implied there was ants plead a former fuit, they no title when they difmiffed the bill, is not fufficient, they must muft fhew it was fhew it was res judicata, an absolute determination in the court res judicata. that the plaintiff had no title, He also held, that a tenant in tail, out of poffeffion, cannot A tenant in tail, out of poffeffion, bring a bill to perpetuate teftimony of witneffes, till he has recannot bring a covered poffeffion by ejectment; if he does, on the defendant's bill to perpetuate demurring for this reafon, the court will allow it. teftimony. And that a bill dropped for want of profecution is never to A bill dropped be pleaded as a decree of difmiffion in bar to another bill. for want of profecution, is never to be pleaded as a decree of dismission, And that a fine levied by a termor for years, is a forfeiture; but the reverfioner has five years after the expiration of the term to enter. November the 30th, 1739. At the Rolls. Anon'. HE queftion before the court was, Whether new af Cafe 267. Tignes, under a commiffion of bankruptcy upon the New affignees death or removal of the former, fhall, on filing a fupplemental under a commif bill, be intitled to the benefit of the proceedings in a fuit be- fion of bankrupt gun in the time of the firft affignees, or muft begin again by cy, on filing a fupplemental original bill? bill, fhall have the benefit of the proceedings in the fuit commenced by the old affignees, Mafler A purchafer of ap eftate, after it has been in con. troverfy in this court, on filing Mafter of the Rolls: In the cafe of an abatement, if you can, you must revive; but in the cafe of affignees, of bankrupts, where fome die, or fome are discharged, and others are by order of court put in their room, there is no privity between the bankrupt and the affignees, or at leaft but an artificial one, and therefore they cannot revive; and it would be extremely hard if there have been pleadings, examinations, &c. in a former fuit, that the new trustees fhould not have the benefit of them by a fupplemental bill. Suppofe the court, upon the death or difcharge of affignees, of bankrupts, fhould fay that all muft go for nothing, and you must begin again by original fuit, why then all the charges and expences in the former fuit are abfolutely thrown away. In the prefent method, though you cannot come against the representative of the former affignee, yet by a fupplemental bill you will have the bankrupt's eftate liable, at all events, to anfwer the cofts. I will put a cafe that comes very near this, and will fhew the reasonablenefs of my prefent determination. Suppose an eftate has been in controverfy for twenty years in this court, and during the fuit it is purchased, the purchaser, on filing his his fupplemental fupplemental bill, comes into this court pro bono et malo, and bill, comes here fhall be liable to all the cofts in the proceedings, from the beginpro bono et malo, ning to the end of the fuit. For these reasons I am of opinion, that the new affignees ought to have the benefit of the former proceedings in the fuit commenced by the old affignees. and is liable to all cofts trom the beginning to the end of the fuit. Cafe 268. If a man cove nants to lay out a fum in the purchase of lands, and devifes his real (B) Whether lands purchased after a will pals by it. December the 15th, 1738. Green v. Smith. On Exceptions. A. eftate before he has made fuch purchase, the money to be laid out will pafs to the devifte. Lord Chancellor, in this caufe, laid down the following rules: That agreements to be performed, are often confidered as performed; for if a man covenants to lay out a fum of money in the purchase of lands, generally, and devifes his real estate before he has made fuch purchafe, the money agreed to be laid out will pass to the devifee. That That where a man having made his will, afterwards enters Where a perfon into a contract for the purchase of land, the lands contracted for contracts for a will not pass by the will, but defcend to the heir at law. purchase of lands after a will made, they will not pafs thereby, but defcend to the heir at law. That where an ancestor, after the making of a will, agrees Where after for the purchase of particular lands, the heir at law would making a will a have a right to them, provided a good title can be made, other perfon agrees for the purchase of wife if it cannot; but it is going too far to say that though particular lands, the heir at law cannot have the land, yet he fhall have the if a good title cannot be made, money fo intended to be laid out. as the heir at law cannot have the land, he shall not have the money intended to be laid out, That if a man gives a portion to his daughter by a will, and afterwards advances her with the like fum, it fhall go in ademption of the legacy. That the vendor of the eftate is, from the time of his contract, confidered as a trustee for the purchaser, and the vendee, as to the money, a trustee for the vendor. That in bills for fpecifick performance, this court never gives relief where the act is impoffible to be done, but leaves the party to his remedy at law. That where an ancestor has agreed for the purchase of particular lands, but dies before it is quite compleated, if the heir at law brings his bill against the devifees, who claim the real estate of the anceftor by a will made before the purchase of thofe particular lands, the vendor of these lands, where he has a doubtful title, must be made a defendant to the fuit, otherwife, if his title be clear. Vide title Agreements, Articles, and Covenants. Vide title Bankrupt, under the divifion, Rule as to Affignees. Anon' at the Rolls. M. T. 1739. * See 4 Vin. Abr. (A) Where the perfonal fhall not be applied in croneration. 459. p. 7. n. November the 4th, 1738. At the Rolls. *Miles v. Leigh. 8 Vin. Abr. 295. pl. 14. Id. 347. pl. 3. n. Id. 530. pl 4. n. Id. 433. pl. 7. n. HENRY Leigh, the plaintiff's father, being feized of a Cafe 269. meffuage called Hills, and of another meffuage called H. L. the plain tiff's father, be ing feized in fee of feveral lands, devifes them to his wife for life, and then to his fon Robert and his heirs, and gives to the plaintiff a legacy of 1501. to be paid to her in a twelve-month's time after his fon Robert fhould come to enjoy the premiffes; and if Robert died before his mother, then that Henry, another fon, coming to the poffeffion thereof, and furviving his mother, should pay the plaintiff 2007. Boreys. bert left a fon the 66 Boreys, with lands in Somerfetfhire of 50l. a year, and also porfeffed of perfonal eftate, made his will the 23d of March 1701, and in the outfet thereof fays, "All my worldly goods I give to Joan my wife, and the premiffes aforefaid he devises to her for life, and then to his fon Robert, brother of the plaintiff, "and his heirs for ever; and to the plaintiff, by the name of his "daughter Mary, a legacy of 1501. to be paid her in a twelve"month's time after his fon Robert should come to enjoy the pre"miffes, and if Robert should die before Joan, then that Henry, "another fon, and the brother of the plaintiff, coming to the poffeffion of the premisses, and furviving his mother, should pay to "the plaintiff 2001. and made Joan executrix. 66 Robert and Henry Robert and Henry died before Joan, but Robert left a son, the died before the defendant Henry Leigh, and nephew to the plaintiff, to whom mother, but Roe the applied for the legacy, and, upon his refufing payment, brought her bill against him to pay her what is due for the le gacy, or, in default thereof, that the defendant may deliver brought for the poffeffion of the premifles. defendant, against whom the bill is legacy. A decree for the legacy at the Rolls, with intereft at 4 per sent, from a year after the death of the mother, and, upon appeal to Lord Chancel lor, decree affirmed. Conditions in conftrued fo, from the nature of the thing The Mafter of the Rolls decreed, that it be referred to a Mafter to see what is due to the plaintiff, for her legacy of 150 l. and to compute intereft at 41. per cent. from a year after the death of Joan Leigh, and the defendant to pay what fhould be found due, or in default thereof the defendant is to account for the rents of Hills tenement, and that Hills tenement be fold. On the 25th of July 1739, this caufe came on before his LordShip, upon an appeal from the decree of the Master of the Rolls. Lord Chancellor: I think the will obfcurely penned, but the conftruction must be agreeable to the intent of the whole will taken together; and upon that confideration I am of opinion. the decree at the Rolls is right. The words the teftator ufes in the difpofition of his perfonal eftate, worldly goods, are an extenfive defcription thereof; and then the first question will be, Whether, by the words and intent of the teftator, the legacy is a charge on the real estate ? I am of opinion it is, and that no other part of the estate, wills are often but the real, is charged with it; the teftator breaks the descent, and his fon Robert takes only a remainder under the will, and the clause of the legacy to his daughter Mary is to be construed itself, where the juft as if it had followed the clause of the devife to Robert and words merely of themselves are his heirs, and therefore is a condition annexed to the estate, not conditional, and conditions in wills are often conftrued fo from the nature of the thing itself, where the words merely of themselves are not conditional, as in the cafe of adverbs of time, and here are adverbs of time directing the particular time of payment, and the word then has often been conftrued a condition. It is objected, that it is not faid to be paid out of the eftate at Hills, nor is it faid by whom it is to be paid. But |