interest of the Plaintiff for her life, the produce of the real estate would belong to the Defendant, the son of the testator's deceased eldest brother, as heir at law.

Sir Samuel Romilly and Mr. Bell, for the Plaintiff, contended, that this, as in Fletcher v. Ashburner (1), was a conversion out and out; not for the mere purpose of paying the debts; in which case according to Ackroyd v. Smithson (2) the surplus beyond the amount of the charge would belong by way of resulting trust to the heir; who' however takes it as personal property.

Mr. Richards and Mr. Maddock, for the Defendant, the son of the testator's deceased elder brother, claiming as heir at law either of the

testator, or his daughter, argued, that the inference from [* 191] *the whole Will was against the conversion of the real estate into personal for all purposes; that the single object was the payment of debts; and it could not have been considered personal property in the event of the deaths of his wife and daughter during his life; merely that it should go to his next of kin.

The MASTER OF THE ROLLS [Sir WILLIAM GRANT].-The question is, whether the produce of the sale of the lands is in the events, that have happened, to be considered as real or as personal estate. If nothing more was meant than to make a provision for the debts, al!, beyond what was required for that purpose, would remain real estate; and as such would go to the heir.. If the intention was to convert it into personal property for all the purposes of the Will, though some of those purposes should fail, and though in consequence of that failure part might result to the heir, yet it would result to him as personal estate, and be so considered in a question between his representatives.

In the first instance the testator appears to have had nothing more in view than to make a provision for the discharge of his "just debts, &c.;" which "&c." may include funeral expenses and legacies: but in the subsequent direction he blends the produce of the real and personal estates, and makes them a joint fund; which he disposes of together, and without any distinction. The first disposition, after the 1007. and the specific articles to his wife, is, after the sale of his estates and other of his effects, the rest, residue, and remainder, (that is, which shall be constituted after and by means of the sale of all his estate and effects) is to be invested and placed out in such securities as his executors shall think proper. What is to become of [* 192] it, when so placed out? The first object is the payment of an annuity to his wife for her life, "in case after all my debts and funeral charges &c. are paid there shall be so much." What he had made applicable to the payment of his debts, &c. was the whole of his property real and personal. He meant the annuity to be a charge on the same fund, if enough were left to answer it.

Then "the remainder" beyond the 100l. annuity is to be carried

(1) 1 Bro. C. C. 497. See, ante, Gibbs v. Ougier, vol. xii. 413; Berry v. Usher, Wilson v. Major, xi. 87, 205; Williams v. Coade, x. 500; and the notes, i. 45, 204. (2) 1 Bro. C. C. 503.

on for the benefit of his daughter, and such children as he may have, share and share alike at the age of twenty-one or marriage.

Here is a disposition of every thing, except the 100l. per annum, allowed to the widow. He then proceeds to dispose of that: directing upon the decease of his wife all the property, from whence the 1007. arises, to be divided among his children at the age of twentyone or marriage.

There he conceives himself, as I apprehend, to have made a complete disposition of the whole of his fortune, comprehending the produce of his real estate. Every thing was to go to his children during his wife's life, except the 1007. per annum : but then it occurred to him, that his children might not arrive at the age of twenty-one, or be married; and that they might all die during the life of his wife; and he thinks it right to enlarge her income in that event; and what he then gives her is, "the income of all his fortune;" that fortune being composed in the manner already stated. Then, not meaning to give his wife in that event the absolute property, he reserves to himself the power to dispose of the capital by a Codicil: but he never made one; and the question is, to whom the produce of the real estate now belongs. It seems to me, that he had converted that* estate into money, either absolutely and to all intents [* 193] and purposes, or at least for the purpose of being applied and distributed in the manner, directed by his Will; and of abiding such ulterior disposition as in case of the failure of children he should think proper to make of it. It is not necessary in this case to determine, whether the conversion be absolute or qualified; because in the events, that have happened, the result with respect to the rights of the parties will be the same. In the one way the mother and daughter would take it, as personal property, distributable as upon an intestacy with respect to the capital; and the mother, as administratrix to her daughter, would now be entitled to her share in the other the daughter would, as heir at law, take it by way of resulting trust upon a failure of the object, for which the conversion was made: but according to Lord Thurlow's doctrine (1), referred to in the argument, it would be personal estate in her; and the mother, as her administratrix, would in that way also be now entitled to the whole.

The Decree accordingly declared the Plaintiff entitled to the whole produce of the real and personal estate.

SEE, ante, notes 2, 3, 4, to Kidney v. Coussmaker, 1 V. 436.

(1) Hewitt v. Wright, 1 Bro. C. C. 86; Smith v. Claxton, 4 Madd. 484.

TAITT, Ex parte.

[1809, JULY 24.]

JOINT creditors admitted to prove under a separate Commission of Bankruptcy for the purpose of assenting to, or dissenting from, the Certificate: not to receive dividends with the separate creditors.

Separate Commission of Bankruptcy by a joint creditor, [p. 195.]

*

THE Petition stated, that a Commission of Bankruptcy issued on the 16th of June, 1809, against Phillip Norris, carrying on [* 194] trade in partnership with Thomas Parr, as iron merchants in Liverpool; that the petitioners believe the separate estate of the bankrupt to be very inconsiderable, and the separate debts, owing by him at the time of his bankrupcy, also to be inconsiderable; that the joint debts and the joint estate were very considerable; that the bankrupt was jointly with his partner indebted to the petitioners in the sum of 4300l. and upwards; and prayed that they and the other joint creditors may be at liberty to prove their debts under the Commission; that distinct accounts of the separate estate of the bankrupt, and of the joint estate of him and Parr, may be kept; and that the said estates may be divided as under joint commissions: the petitioners undertaking to pay the separate creditors of Norris twenty shillings in the pound on account of their several debts.

Sir Samuel Romilly and Mr. Cooke, in support of the Petition : Mr. Hart and Mr. Bell, against it. The Petition stood for Judg

ment.

The Lord CHANCELLOR [ELDON].—This Petition, by joint creditors, to be admitted to prove their debts under a separate Commission, and that the estate may be divided as under a joint Commission, undertaking to pay the separate creditors twenty shillings in the pound, not praying, that the joint creditors may be at liberty to vote in the choice of assignees, is founded upon Ex parte Chand[* 195] ler (1), and the other late cases. Upon looking at the

(1) Ante, vol. ix. 35; Ex parte Hall, 349; Ex parte Kensington, Ex parte Ackerman, xiv. 447, 604; Ex parte Sadler and Jackson, xv. 52; and the references in the note, iii. 243, Er parte Elton. The conclusion is, that joint creditors may prove under a separate Commission for the purpose of assenting to, or dissenting from, the Certificate; and of going against the surplus, if any, after satisfaction of the separate debts: not to vote in the choice of assignees, or receive dividends with the separate creditors; except a joint creditor, who is the petitioning creditor under the Commission; or, where there are no joint effects, and no solvent partner; alleged insolvency, without bankruptcy, not being sufficient: Ex parte Janson, 3 Madd. 229: or no separate debts: or the joint creditors will pay the separate creditors twenty shillings in the pound; or where the separate debts are not of an amount sufficient for voting in the choice of assignees; or are overbalanced by the debt of the petitioning creditor, a joint creditor, consenting. Ex parte Jones, Ex parte Taylor, post, xviii. 283, 4. No costs given on the Order for joint creditors to prove under a separate Commission: Ex parte Bradshaw, 1 Glyn & Jam. 99. By Stat. 6 Geo. IV. c. 16, s. 62, in all Commissions against one or more partners (sce s. 16) any creditor, to whom the bankrupt or bankrupts is or

Report of Ex parte Chandler it does not amount to an authority, which can be applied to this petition. In that instance the Commission was taken out by a joint creditor (1); who gave his assent to the Petition; the fact was ascertained, that there was only one separate creditor, for 30l., and it was proposed by paying off that creditor to displace him from that situation; which reduced the case to this; that there was no separate debt; and therefore no creditors, except that one, who took out the Commission, and assented to the prayer of the petition, and other joint creditors. In a subsequent case, Ex parte Hubbard (2), the amount of the joint debts was represented to be 78,000l.; the joint effects 32,000l. and the separate debts 2000l.; and Lord Erskine appeared to be inclined to follow what I had done: but the joint creditors refused to pay the separate debts.

The Petition, now before me, goes to this: that, not knowing, what the separate property, and the separate creditors, may be, I am to make the same Order, that I made in Ex parte Chandler; where the petitioning creditor consented to the petition; and, the only separate creditor was paid his whole debt. As it is uncertain, what may be the amount of the joint and separate debts, the ordinary rule as to the choice of assignees must take place: [*196] viz. they must be chosen by those creditors, who are entitled to prove without an Order.

*

As to that, which is prayed by this Petition, that the joint creditors may be admitted to prove for the purpose of receiving dividends, the rule, adopted by Lord Hardwicke, was, that the joint creditors should be permitted to prove for the purpose only of assenting to, or dissenting from, the certificate, and going upon the surplus, if any, after satisfaction of the separate creditors: but, if they wished to have a distribution of the joint estate, they should be put to file a Bill, and wind up the whole: the proportion belonging to the bankrupt being part of his separate estate. That was followed without interruption for half a century; until it was disturbed by Lord Thurlow; who held it wrong in point of law; and, having considered it with great anxiety, his Lordship allowed joint creditors to prove under a separate Commission, and to take dividends; stating, that all the partners were jointly indebted; and the joint creditor, suing both, might take either a joint execution, or a separate execution against each; and it was the business of the assignees to file a Bill against the other partners to liquidate the account between them and the

are indebted jointly with the other partner or partners or any of them, shall be entitled to prove for the purpose only of voting in the choice of Assignees, and assenting to, or dissenting from, the Certificate: but not to receive a dividend out of the separate estate, until all the separate creditors shall have received the full amount of their respective debts: unless such creditor shall be a petitioning creditor in a Commission against one member of a firm.

(1) Ex parte Ackerman, ante, vol. xiv. 604.

(2) Ante, vol. xiii. 424.

*

bankrupt. Lord Rosslyn afterwards restored the old rule (1); but with this peculiarity, permitting the joint creditors to prove, if there were no joint effects; and stating, that the account of the joint estate should be taken in the bankruptcy. That is right; if you can insure, that the account will be properly taken in the absence of the other partner but the difficulty is, that the account must be taken in his absence; and I repeatedly pressed that to Lord Rosslyn ; who answered, that, if the partner chose to come in, to [* 197] see the account taken, he might: if not, it was his own fault; and the creditors should not be farther embarrassed; and Lord Rosslyn repeatedly made the Order for keeping distinct accounts, and distributing the joint estate among the joint creditors and the separate estate among the separate creditors. There is infinite difficulty upon that: but, as I have before observed, it is much better to attend to established practice, though it may be involved with some difficulty, than to have a new rule with every change of the Great Seal.

The petitioners therefore may prove for the purpose of assenting to, or dissenting from, the Certificate; but I cannot go farther upon the offer to pay the separate debts, until I know, what they are.

SEE the note to Ex parte Elton, 3 V. 238, and the note to Ex parte Kensington, 14 V. 447.

SLATTER v. NOTON.

[ROLLS.-1809, JULY 20, 26.]

BEQUEST of leasehold premises, "and all my estate term and interest therein." The interest, acquired under a subsequent renewal of the lease, does not pass (a).

Distinction between bequests of leasehold estate by words in the present and in the future tense, as confined to the existing, or comprehending a future, interest, [p. 199.]

ELIZABETH IMBER by a Codicil, dated the 20th of May, 1794, made the following disposition:

"Also I give and leave to the said Stephen Street my leasehold garden in Southgate Street Winchester and the stable adjoining my dwelling-house in St. Thomas Street for the term of his life and after his decease to all and every his children if he should have any but if he should die without issue then I give the said garden and stable and all my estate term and interest therein to the said Elizabeth Street and Jane Street their executors and administrators."

(1) Ante, Ex parte Elton, vol. iii. 238; and the note, 243; Ex parte Abell, iv. 837; Ex parte Clay, vi. 813; 1 Cooke, B. L. 233, 8th edit. by Mr. Roots, 258, &c. (a) It will be observed, (post, p. 199,) that the question in the present case was treated by Sir William Grant as one of intention.