and articles which allowed Garrett's account, the appellant or her husband knew nothing of them, nor were privy to, or ever heard of any such decree or articles; and that if the respondent should be first paid, the appellant would lose her legacy, which was all she had.
But to this it was answered (C. Coxe), that the printing-office being only a term for years, vested in the executor, who was entitled not only as executor, but also by the express devise of the will; that therefore he had certainly power to sell and dispose of the testator's estate, in order to pay his debts and legacies; and, if he had not so applied the money, he alone was answerable to the creditors and legatees; but the mortgagee, who advanced his money on the mortgage of a chattel real, was no way concerned to see to the application of the money. Besides, when the respondent's father advanced the money, he found the accounts of Garrett the executor, settled and adjusted, and an agreement to pay him off confirmed by a decree; and that the appellant and her husband were not only parties to the agreement, but likewise to the decree; so that it was not now in her power to say, the executor did amiss, when she and her husband had confirmed what he had done, and to turn it to the prejudice of an innocent purchaser, who had honestly advanced his money. That if the appellant was not satisfied, it was her own fault; for, by her vexatious conduct, the respondent's debt was greatly increased, the whole of the interest being in arrear, and the profits of the office in the meantime embezzled; and if she should be let in preferably to the respondent, [7] it would alter the office of an executor, and the respondent must lose the greatest part of his debt.
After hearing counsel on this appeal, it was ordered and adjudged, that so much of the decree of the 30th of October 1703, as any way tended to the prejudice of the appellants, or Samuel Shephearde and Ann Brookes, or their demands, should be reversed; and also that the decree of the 24th of July, 34 Car. II. and the proceedings in that cause, so far as they tended to the prejudice of the appellant Diana Savage, or Samuel Shepheards and Ann Brookes, should be discharged, set aside, and reversed; and that the money in the hands of Sir John Hoskyns, late one of the Masters of the Court of Chancery, as also what was and should be in the printer's hands; should be applied to discharge the arrear of interest, and the growing interest of the £2000, and that the same £2000, as it could from time to time be raised, out of the profits of the said office, should be placed out at interest, for the advantage of the several persons interested therein; and that the Court of Chancery should give directions accordingly. (Jour. vol. 17. p. 471.)
Case 4. Richard Cole,—Plaintiff; Daniel Rawlinson,—Defendant (in Error) [10th December 1705].
[Mew's Dig. xv. 1282.]
1 Salk. 234. Viner, vol. 8. p. 185. ca. 42. p. 209. ca. 29.
On the trial of an ejectment, the jury found a special verdict, to the following effect: that John Billingsly being possessed of a long term for years, in a toft or piece of ground, in Nicholas-lane, London, upon which stood part of a house, called The Bell Tavern and being also seised in fee of the other part of the same house, inter-married with Hannah Dix, the widow and relict of Robert Dix, by whom she had three sons then living, namely, Robert, Thomas, and Christopher Dix.
That after such marriage, and after a son born, named John, by indentures of lease and release, dated the 5th and 6th of September 1672, made between the said John
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