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![handle is hein.slavery/ssactsengr0634 and id is 1 raw text is: AfAdE 1). SMAL9BRO1 .
otherwise sufficiently authenticated, as by his books of account kept by his servant,
&c. Vide Blunden v. Barker, 1 P. Wins. 642, and note there by Mr. Cox.
(5) The custom is if orphan son dies before twenty-one, and daughter dies before
twenty-one, and unmarried, the share in both cases survives, Jesson v. Essington,
Pre. Ch. 207. So even after division and partition made, Leoffes v. Lewin, Pre. Ch. 372;
Eq. Ca. Ab. 156, pl. 8. But the survivorship does not extend to any part the orphan
takes himself by survivorship, Anon. Pre. Ch. 537. And by the custom the orphan
is incapable of devising his part by will before twenty-one, or in case of a daughter
before twenty-one, or marriage, Anon. Pre. Ch. 537. Wilcocks v. Wilcocks, post, 2 vol.
599. Knipe v. Wale, Mich. 1721, 7 Vin. Ab. 213, pl. 3. Hervey v. Desbouverie,
Forr. 135. Nor the part he takes by survivorship any more than the original share,
ibid. But he may devise his share under the statute of distributions, Wilcocks v.
Wilcocks. Jesson v. Essington, ub. sup. And if he die intestate after twenty-one,
it shall go according to the statute of distributions, Anon. Pre. Ch. 537. Et vide stat.
11 Geo. 1, cap. 18, sec. 17, Bacon Ab. Tit. Cust. Lond. (a).
Case 79.-SAVAGE versus SMALEBROKE.
18 Novembris [1682]. In Court, Master of the Rolls.
Defendant demurred, for that plaintiff had made no title by his bill, and also
answered several parts of the bill. Demurrer over-ruled by the answer.
The defendant having demurred, for that the plaintiff had made no title to himself
in the bill (as in truth he had not), Mr. Hutchins insisted, that the defendant had over-
ruled his own demurrer, by having answered over to several parts of the bill. (Sic
diet. Jones v. Strafford, 3 P. Wins. 80. Et vide Duke of Dorset v. Girdler, Pre. Ch.
532.) But the matter of fact being denied, and there being no books in court, the matter
was adjourned.
Case 80.-NOEL versus ROBINSON.
20 Novembris [1682]. In Court, Lord Chancellor.
2 Vent. 358; 2 Ch. Ca. 145; 2 Ch. Rep. 248, S. C.
Upon a re-hearing the case was thus. Sir Martin Noel, father of the plaintiffs,
being possessed of a great personal estate, and of a moiety of a plantation beyond sea,
made his will, 23 September, 1665, and the defendant Robinson and two others (his
two sons Martin Noel and Thomas Noel, since deceased, R. L.) executors thereof,
and devised his said moiety of the plantation and of the negroes and stock thereto belong-
ing to the plaintiffs Nathaniel, Grace, and Elizabeth, his children, then infants, and
directed the executors to receive the profits, and to give an account, and pay the
proceeds thereof for the maintenance and education of the plaintiffs.
The defendant Robinson only proved the will and took on him the manage-
ment of the testator's moiety of the plantation, and afterwards made a lease thereof
to one Worsam for a term of years, and reserved the rent to himself in trust for the
plaintiffs' use. (It appears that the other executors joined in the probate, but did
not intermeddle, R. L. Note.-It is now settled that where a bill is filed against persons
as executors, and one of them says he has not proved nor intermeddled, the bill shall
be dismissed as against him, with costs, as being an unnecessary party, Willis v. Walker,
6th Feb. 1804. In Ch. not reported.)
The plaintiffs brought their bill against Robinson the executor and one Faulconer,
who had purchased of the executor [91] the said moiety of the plantation for a valuable
consideration, that they might account for the profits of the plantation and pay the
same to the plaintiffs, that they might convey to the plaintiffs the said moiety of the
plantation, and that they might hold and enjoy the same according to the will; they
insisting, that the defendant Robinson by making the said lease had assented to the
devise of the moiety of the plantation to the plaintiffs.
The defendant Robinson by answer admitted the will, and his making the said lease
and reserving the rent in manner aforesaid ; but said, he made the same in such manner
without due consideration, and not with intent thereby to assent to the devise to the
I VERN,. 91.](ViewImageLocal?handle=hein.slavery/ssactsengr0634&div=1&collection=&method=preview&ext=.png&size=3)