by the time limited; and no direction was given that he should have any share of the purchase money, but the same was in that case left to be divided amongst the four surviving daughters of Sir Thomas Badd, according to the settlement; and finally, that no matter was disclosed, or insisted upon by the petition, which was not before the Lords, and settled and determined upon the former hearing; and that the rehearing of ap-[77]-peals, especially after so long acquiescence and sales made thereupon, would be of dangerous consequence, and tends to make suits endless. (T. Powys.)
The petitioner stated the family and the settlement and will of Sir Thomas Badd: (but wilfully, as it seems) omitted to state the proviso relative to any daughter dying without issue; and stated further, that Sir Thomas died in May, 1683, and was at his death indebted to his daughter Frances 4000l. and upwards, which he had received out of the profits of her husband Edward Dennis's estate, to whom Sir Thomas had been guardian for ten years; and that after Sir Thomas's death Frances exhibited her bill in Chancery for an account of her husband's estate against Lady Badd, his executrix; for who having sworn in her answer, that Sir Thomas, by his will, gave Frances the pre-emption of his estate (which was more than a double share) in satisfaction of what he owed her. The court at the bearing of that cause, in consideration of such recompence, dismissed her bill, as appeared by the order of dismission; and that Frances, soon after Lady Badd's death, borrowed 700l. from a Mrs. Mills, and 1600l. from Sir Streynsham, Masters, and 100l. from George Pitt, Esq. and levied a fine, and mortgaged, and otherwise incumbred the estate in question, for securing the money; and that having six months to pay the 6000l. she applied within that time to Thomas Sackville, the surviving trustee, to receive the same; who answered, that he would not convey the said estate, unless he was discharged by a decree in Chancery; and refused to give any acquittance for the money; and thereupon Frances, within the six months, filed her bill in Chancery, to compel the trustee to convey upon payment of the 6000l. and praying an enlargement of time, and a place of payment; all which happening in November, 1688, pending the late revolution, the courts of justice were not open, and Frances died before she could bring that cause to a hearing; and being indebted, as aforesaid, and also indebted to Woodman 600l. by bond, and being desirous her debts should be paid, made her will, and Woodman executor in trust, and devised her title and interest in said estate to Woodman and his heirs, and appointed the said estate to be sold, and the 6000l. to be paid to her four sisters, and her debts and legacies to be paid, amounting to more than 4000l. so that Woodman could be no gainer thereby; [78] and that, in 1689, Woodman exhibited his bill of revivor against the trustee and four sisters, to compel a conveyance to him on payment of the 6000l. and Robert Blake, and Elizabeth his wife, who was the eldest of the four sisters, exhibited their cross bill, to compel a conveyance to Elizabeth, on payment of 6000l. by her, and pretended that they had tendered the 6000l. to the trustee, within three months after the first six months expired, and that Elizabeth ought to have pre-emption of the estate.
And, on hearing both causes, it was decreed, that Woodman should be let into the benefit of the estate; for that Mrs. Dennis surviving Lady Badd, an interest and benefit had vested in her, which could not be forfeited, though the time was elapsed for payment of the 6000l. and the court declared, that the default was in the trustee only, who might have had the money within the time limited, but refused to convey, unless first discharged of the trust by decree in Chancery; and further decreed, an account to be taken of the profits of the estate since Lady Badd's death; and Woodman had time till Michaelmas Term to pay 1500l. a piece to the sisters; and they and the trustee thereupon to convey to him, and in default of payment the estate to be sold; which decree the Lords barely reversed, without making any decree or further order therein; and petitioner insisted, that said Frances was entitled both under the settlements and will to a fifth part of the estate, in case she failed to pay the said 6000l. and submitted that, although by the reversal the benefit of pre-emption was taken away from Woodman as a stranger to the family, yet their Lordships did not intend thereby to take away from the creditors of Frances her fifth part of her father's estate, which descended upon her, and which she had mortgaged and incumbred before her death, and by her will had
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