Case 3.—Diana Savage, and Others—Appellants; Sir William Humble, and Others,—Respondents [6th March 1703].
2 Vern. 444. Viner, vol. 8. p. 427. ca. 13. 462, ca. 17. vol. 11. p. 270. ca. 6.
John Bill, being entitled to a moiety of the King's printing-office, made his will, and thereby charged the same, together with certain lands called Dovers, with the payment of his debts and legacies; he then expressly devised to his executors, all his right to the printing-office, and all benefit coming therefrom; and willed, that out of the profits of the printing-office and his lands, his executors should, inter alia, pay the interest of £2000 to his daughter Savage and her husband; and out of the overplus of those profits, should raise the £2000 and put it out at interest: and he made Charles Garrett sole executor, until his son Charles Bill should attain 21; and then he appointed both of them his executors.
Garrett the executor proved the will, and undertook the trust; but his management being afterwards disapproved of, the appellant and her husband, together with Charles Bill, exhibited a bill in Chancery against Garrett, for an account of the testator's estate, and to have the trust transferred.
On the 9th of December 1681, the cause was heard, and an account decreed; but it being apprehended, that the taking of the account before a Master would be tedious and expensive, the parties settled and adjusted the account amongst themselves, on which occasion certain articles were executed, to secure what was due to Garrett the executor; and soon afterwards another bill was exhibited against him, by Savage and his wife, Charles Bill, Serjeant Hempson, and the widow of the testator, to have the articles carried into execution, and the trust transferred.
This second cause was heard on the 24th of July 1682, when the articles were decreed to be performed; and, by consent, the defendant Garrett was decreed to transfer the trust.
In December following, Dr. Brown advanced £1000, and for securing the repayment of it, with interest, Garrett, Serjeant Hampson, and Charles Bill, joined in a mortgage of the printing-office, and the lands called Dovers. And in March 1683, Sir William Humble, the respondent's father, advanced £1800 to pay off Dr. Brown his principal and interest, and for other purposes; and thereupon Charles Bill, together with Garrett the executor, [6] and Dr. Brown, executed to Sir William, an assignment of Dr. Brown's mortgage.
In November 1685, Sir William Humble filed his bill against Garrett the executor, and Charles Bill, to compel them to redeem, or be foreclosed; and on the 27th of January 1690, the cause was heard, when the respondent, (who upon the death of his father had revived the suit,) was decreed to be paid his £1800 principal money, with interest and costs.
But pending these transactions, the appellants Mrs. Savage and her husband, had, by contrivance with the printers, obtained a decree of the Court of Chancery, to have her £2000 raised, and the interest paid to her; so that when the respondent expected to have the fruit of his decree, he was told by the printers, that Mrs. Savage had obtained a decree against them, and that they were bound to pay her. Whereupon the respondent brought a new bill against all the parties, for the purpose of carrying his former decree into execution; and on the 30th of October 1703, he obtained a decree for payment of his debt, with interest and costs.
From this last decree, and also from the decree of the 24th of July 1682, the present appeal was brought; and on the behalf of the appellants it was insisted (S. Cowper), that Garrett the executor, had applied part of the money he received, to his own use, and not in discharge of his executorship; and that the respondent's father, who lent the money, was obliged to see to the application of it. That as to the decree
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