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![handle is hein.slavery/ssactsengr0867 and id is 1 raw text is: EARL OF CLARENDON V. BARHAM
the intervention of other trustees. It is not necessary at present to adjudicate upon
that part of the case, because I think there is a sufficient case made by her answer to
authorize me to direct an inquiry whether the business has been carried on ,since the
testator's death in a manner conformable to the testator's will. [This ard other
inquiries were then directed.]
July 11. On this day, THE VICE-CHANCELLOR said, upon further consideration, he-
was confirmed in the opinion which he had before given in this case ; more especially
as by the will of the testator the interest given to the daughter was to her separate
use.
[688] THE EARL OF CLARENDON v. BARHAM. July 13, 18, 19, 25, 1842.
[S. C. 6 Jur. 962.]
By a marriage settlement £20,000, the fortune of the wife, was assigned to trustees
upon trust, subject to life interests of the husband and wife, as to one moiety for
the eldest son of the marriage, and as to the other moiety for the younger children.
By the same settlement a certain plantation in Jamaica, of which the husband was
seised in fee-simple, was conveyed to the use of trustees for a term of 500 years,
upon trust, if the husband should so appoint, to raise £10,000 for his absolute use,
and subject to such term, and to the life interests of husband and wife, to trustees
for 1000 years, upon trust to raise £20,000 for the eldest son, £10,000 for the
younger children, and again £10,000 for the eldest son. The settlement contained
a proviso that the portions should be raised according to their priority, as stated in
the settlement. Soon after the marriage the husband exercised his right of raising
£10,000 for his own use, and for that purpose the trustees of the 500 years' term
borrowed of the trustees of the wife's fortune £10,000, and executed to the latter
a mortgage of the premises comprised in the 500 years' term. The husband and
wife died, leaving five children of the marriage; the husband having by his will,
after directing payment of his debts, and devising certain property not situated in
'Jamaica, devised all his residuary real and personal property to his eldest son J.,
and appointed him his executor. Upon the death of the testator J. proved the
will, acted as executor, and entered into possession of the estates in Jamaica, of
which he kept possession, paying the interest of the younger children's fortunes until
1837, when he became a lunatic, shortly after which he died intestate and
unmarried, leaving the four younger children surviving him of whom W. was his
heir at law. No arrangement had ever been entereg into' amongst the children
relative to the charges in the settlement, nor was there any strong evidence of the
intentions of J. as to the extinguishment of those charges to which he was
entitled. Held,
1st. That, under the foregoing circumstances, it was most for the benefit of J. that
his charges on the Jamaica estate should be considered as not having been
extinguished in the inheritance, and consequently that they were not extinguished.
2dly. That he was not bound to apply the rents and profits which he received in
reduction of his charges; but,
3dly. That a sum for slave compensation money, which he received as devisee of
his father, must, as between the several charges, be applied in reduction of the first
charge of £10,000, and that the personal representative of J. or his father must
account for interest on that sum during the life of J.
A person mortgages an estate, and, by his will, after directing payment of his debts,
devises all his residuary real estate (including the mortgaged estate), and all his
residuary personal estate to his eldest son, whom he appoints his executor. The
son proves the will, and dies intestate, without having paid off the mortgage.
Both father and son leave sufficient personal assets to pay off the mortgage.
Decreed, on the authority of modern cases, but reluctantly, and against the opinion
which independently of them the Judge would have entertained, that as between
the heir and administrator of the son the mortgaged estate is the primary fund
for payment of the mortgage.
1073
I Y. & C. 0. 0. 688.](ViewImageLocal?handle=hein.slavery/ssactsengr0867&div=1&collection=&method=preview&ext=.png&size=3)