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or just that by the practice or contrivance of any debtors their creditors should be defrauded of their just debts, it was enacted that all wills and testaments, limitations, dispositions, and appointments of or concerning any manors, messuages, lands, tenements, and hereditaments, or of any rent, profit, term, or charge out of the same, whereof any person, at the time of his or her decease, should be seised in fee simple in possession, reversion, or remainder, or have power to dispose of the same by his or her last will and testament thereafter to be made, should be deemed and taken only as against such creditor or creditors as aforesaid, his, her, or their heirs, successors, executors, administrators, and assigns, and every of them, to be fraudulent, and clearly, absolutely, and utterly void, frustrate, and of none effect."
And by section 3, "for the means that such creditors may be enabled to recover their said debts,” it was enacted, " that in the cases before-mentioned, every such creditor or creditors should and might have and maintain his, her, or their action of debt upon his, her, or their said bonds and specialties, against the heir and heirs at law of such obligor or obligors, and such devisee or devisees jointly, and such devisee or devisees should be liable and chargeable for a false plea by him or them pleaded, or for not confessing the lands or tenements to him descended.”
And by section 4 it was enacted, “ that where there should be any limitation or appointment, devise or disposition, of or concerning any manors, &c. for the raising or payment of any real and just debt or debts, or any portion or portions, sum or sums of money, for any child or children of any person other than the heir at law, according to or in pursuance of any marriage contract, or agreement in writing, bona fide made before such marriage, the same and every of them should be in full force ; and the same manors, &c. should be holden and enjoyed by every such person or persons, his, her, and their heirs, executors, administrators, and assigns, for whom the said limitation, appointment, devise, or disposition was made, and by his, her, and their trustee or trustees, his, her, and their heirs, executors, administrators, and assigns, for such estate or interest as should be so limited or appointed, devised or disposed, until such debt or debts, portion or portions, should be raised, paid, and satisfied.”
And lastly it was enacted, " that all and every devisee and devisees made liable by that act, should be liable and chargeable in the same manner as the heir at law, by force of that act, notwithstanding the lands, tenements, and hereditaments to him or them devised should be aliened before the action brought."
This statute, in respect to this part of its provisions, may be considered as suppletory to that of the 13 Elizabeth, c. 5, against fraudulent convey. ances, and as designed to extend the remedy to fraudulent devises.
It has been determined that an action of covenant does not come within the remedy given by this statute, which is confined to cases of debt, for though the word specialties is used as well as bonds, yet when the means of recovery are provided, the intention of the statute is plainly confined to debts, and those specialties on which an action of debt lies. The statute speaks throughout of debts, and a breach of covenant cannot be considered as a debt. The statute prescribes the means by which such creditors shall recover their debts, and in prescribing those means it only gives the action of debt”.
This Act contains, as appears from what has been Excepting
clause ; its efabove recited, a clause saving the effect of such fect. devises and dispositions as are for the payment of debts, which clause has been held to operate simply as an exception, leaving the case of a devise for the above purpose, as well as provisions of portions for children in pursuance of marriage contracts, entirely unaffected, and open to the same remedy and resort ay before the statute. Since at common law there was no remedy against a devisee for payment of debts, such a case always was and still continues to
• 7 East 128, Wilson v. Knubley.
2 Atk. 292, Plunket v. Penson.
be, since the statute, the subject of equitable jurisdiction, and accordingly the assets are equitably distributable, that is, equally and pari passu amongst all the creditors, whether by specialty or simple contract,
A devise for payment of debts out of the rents and profits only, has been clearly held within the exception. And it appears to have been the opinion of Lord C. J. Willes, that by virtue of the above-mentioned clause, a devise for the payment of any particular debt upon simple contract is a good devise against bond creditors.
But it is to be observed, that if a devise for payment of debts does not provide for it in a practicable manner, the case is not within the exception`. But since the case of Bailey v. Ekins', the rule appears to be settled, that if the provision made by the will for the payment of debts be effectual, either at law or in equity, the case is taken out of the statute: so that if the will, instead of breaking the descent by a regular devise, only charges the estate with the debts of the testator, this provision is good and availing, notwithstanding the statute of fraudulent devises, and a court of
< 2 Atk. 104. Ridout v. Earl of Plymouth.
67 Vez. Jun. 319, and see 8 Vez. Jun. 26, Shephard v. Lut. widge.
equity will act upon it; which is the same thing as to say that the interest so provided, and which equity draws out of the mass going to the heir, is distributable as equitable assets, among all the creditors equally, and without any regard to the Assetsequit.
able or legal. precedency of specialty creditors. Lord Hårdwicke in Plunket v. Penson', seemed to be of opinion, that it was necessary the descent should be broken to make the assets equitable; and that if the estate were suffered to descend charged to the heir, or if the heir were made the trustee (1), the descent being unbroken, the assets should be considered as legal assets ; distinguishing such case from that of the devise of an estate to a stranger charged with the payment of debts which by breaking the descent would make the assets equitable". But Lord
$ 2 Atk. 290.
See 1 P. Wms. 430. Freemoult v. Dedire,
(1) A devise giving lands as the law would give it, in case there were no devise, is inoperative and void; and therefore if the legal estate be devised to the heir in trust, the descent of the legal estate is unbroken, and the devise has merely an equitable operation. See Hedger v. Rowe, 3 Lev. 127. But if the quality of the estate be altered, the descent is broken; as if the devise create a jointtenancy or tenancy in common, where the descent would
the. estate in coparcenary. 3 Lev. 128. Hob. 30. But merely charging the estate does not break the descent. See 2 Lord Raym. Reading v. Rawsterne, 829. But if a mere trust estate descend it will be legal assets, since a trust estate descending is made assets by the statute of frauds. But, it seems, an equity of redemption of the fee, not being so converted by that statute, is considered as equitable assets, 2 Atk. 294. 3 P. Wms. 342.