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![handle is hein.slavery/ssactsengr0637 and id is 1 raw text is: SAGITARY V. HYDE
estate, and without assets sufficient to make compensation. And the plaintiff's bill
was, that Banson might have his £500 legacy only in proportion with him, and it
was so decreed accordingly, and the plaintiff was preferred as to the redemption of
the mortgage, he having £5000 legacy, and the defendant but £500. And a like
case of Nelthorpe and Biscoe (1 Ch. Rep. 135), where a legatee had actually received
her legacy at the time it became payable, and the estate afterwards by casualty proving
deficient to answer the other legacies, which were not then payable, was made to refund:
and the case of Chamberlain and Chamberlain (1 Ch. Rep. 256), decreed the 26th
of July, 1664, that an assent to a legacy shall not bar a creditor, 'Where the thing itself
is remaining in specie. And in the case of Catchmay and Nicholls, where a woman
that had the use of a personal estate devised to her for life, with a remainder over to
another, had changed the, securities and taken new bonds in her own [455] name,
it was determined that that should not be construed to be a devastavit (Qucere autem,
et vide Barker v. Talcot and Shaw, post, 474), or make her estate any way liable; and
that the executor in that case was but in the nature of a trustee, and was- not to
be punished, where the devisee had acted fairly, and done nothing against good
conscience. And besides in the principal case the assent insisted upon is not properly
speaking an assent to a legacy ; for the devise is of no less than the whole inheritance.
Lord Chancellor. It is'a case of -consequence, and it will be fit therefore it shbuld
be well enquired into, how far a plantation in Barbadoes is liable to the payment of
debts : but as to the actual assent to a legacy by an executor, that would not bind
a creditor. If an executor should release a debt of £100 for one shilling, that would
not bind a creditor : but in case there is no other creditor, save only the executor
himself, there his assent will be binding to him; as if an executor will voluntarily
release a debt, lie shall not be relieved against it, though a creditor should.
(1) So Gelby v. Cleve; Hill. 5 Will. and Mary, C. B. cited in Chamberlain v. Harvey,
1 Ray. 146. Butts v. Penny, 3 Keb. 785. In Brown v. Cooper, 2 Salk. 666, it was
left unsettled whether negroes were inheritance or not, but in Smith v. Gould, ibid.
and 2 Raym. 1274, S. C., it was decided that trover lies not for a negro, but it seems
in trespass quare captivum suum cepit, plaintiff may give in evidence that he was his
negro, ibid.
Case 427.-SAGITARY versus HYDIE.
2 Maii [1687]. In Court, Lord Chancellor.
[1] Eq. Ca. Ab. 142, pl. 8; Post, 2 vol. 44, S. C.
A man makes a settlement on one of his co-heirs, with a power of revocation ; the
heir, before either original filed or bill brought, aliens; but before all the purchase
money is paid, 'an original is filed and a bill brought, and notice thereof is given to
the purchaser (Stat. 3 & 4 William and Mary, cap. 14).
Per Cur'. 'There is a difference between a conveyance with a power of revocation,
and a conveyance to such uses as a man shall appoint, and lie afterwards by will appoints
the uses.
In the principal case there being a debt owing to the King it was ordered that the
Ring's debt should be satisfied out of the real estite, that the other creditors might
be let in to have satisfaction of their debts out of the persotial assets.(1)
(1) For the leading cases on the doctrine of marshalling assets, vide Clifton v. Burl,
1 P. Wins. 678, and Mr. Cox's notes to that case, in addition to which, as to marshalling
in favour of legatees, Foster v. Cook, 3 Bro. Ch. Rep. 347. And no difference where
legatee by a codicil, Norman v. Morrell, 4 Ves. 769. As to not marshalling for a
charity, Makeham v. Hooper, 4, Bro. Ch. Rep. 155. Nor against judgment creditors,
as distinct from specialty creditors, nor where legacy charged on real estate, and payable
at'a future day, Pearce v..Loman, 3 Yes. 135 Sharpe v. Earl of Scarborough, 4 Yes.
538. - Nor where the -personal estate ample for the payment of debts, and real estate not
charged in favour of legatees, Keeling v. Brown, 5 Yes. 359. Contra it should seem
in such a case as to simple contract creditors, Powell v. Robins, 7. Ves. 209. So where
mortgagee of freehold and copyhold lands, the Court will marshal in favour of simple
.contract creditors, Aldrich v. Cooper, 8 Ves. 382, in which the doctrine of marshalling
1V ERN. 455.
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