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impeached in

was held to be bad in equity. This Act restores the common law to its full force, and declares,

Sect. 1. That no appointment, which after Illusory ap the passing of this Act shall be made in exer- not to be cise of any power or authority to appoint any equity. property, real or personal, amongst several objects, shall be invalid or impeached in equity, on the ground that an unsubstantial, illusory, or nominal share only, shall be thereby appointed to devolve upon any one or more of the objects of such power; but that every such appointment shall be valid and effectual in equity as well as at law, notwithstanding that any one or more of the objects shall not thereunder or in default of such appointment take more than an unsubstantial, illusory, or nominal share of the property subjected to such power.

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Sect. 2. But that nothing in the Act shall Not to affect prejudice or affect any provision in any deed, declaring the will, or other instrument creating any such the share ; power, which shall declare the amount of the share or shares from which no object of the power shall be excluded.

Sect. 3. Nor be construed to give any other Nor to give validity, force, or effect to any appointment effect to any than such appointment would have had if a than the substantial share of the property affected by the have had. power had been thereby appointed to or left

same would

unappointed to devolve upon any object of

such power.

Payment of Debts out of Real Estate.

As to the 11 Geo. 4 & 1 Will. 4, c. 47, intituled,

“ An Act for consolidating and amending the Laws for facilitating the Payment of Debts out of Real Estate.”

The principal object of this Act was to extend the relief afforded to creditors against the real estate of their debtors. By the 3 & 4 Will. & M. c. 14, it was enacted, that creditors by bond and specialty might maintain their actions of debt against the heirs and devisees of obligors; and thus the remedy which before that statute enabled creditors to claim payment of their debts out of an estate in fee simple descended to an heir at law, was enlarged so as to give them the same right against a devisee. But that statute was held to apply only to bond debts and covenants for the payment of sums certain, and it did not afford any relief in cases where there happened to be no heir, the right of action given by it being only against the devisee and heir. The present Act removes both these defects, enabling creditors (sect. 3) to recover

upon bonds, covenants, and other specialties, and declaring (sect. 4) that if there be no heir actions may be maintained against the devisee. It also materially assists the remedies given to creditors both at law and in equity, by abolishing the right of parol to demur (a), and enabling Courts of equity to order infants to convey where estates are sold for the

purposes of this Act.

The following are its principal provisions :

By Sect. 1, the Acts of 3 & 4 Will. & M. c. 14, 6 & 7 Will. 3, c. 14, 4 Anne, c. 5 (I.), and 47 Geo. 3, c. 74, are repealed.

& M. c. 14,

Sect. 2. All wills and testamentary limita- Por preventtions, dispositions, or appointments concerning creditors by lands, &c., shall be deemed or taken (only as 3 & 4 Will

. against such person or persons, bodies politic 8. 2. or corporate, and his and their heirs, successors, executors, administrators and assigns, and every of them, with whom the person or persons making any such wills or testaments, limitations, dispositions, or appointments shall have entered into any bond, covenant, or other specialty, binding his, her, or their heirs) to be fraudulent and void.

(a) As to the origin and effect of parol demurring, see p. 225, post.



& M. c. 14,


Sect. 3. And every such creditor may mainupon bonds, tain his action of debt, or covenant, upon the 3 & 4 Will. said bonds, covenants and specialties, against

the heir and heirs at law of such obligor or obligors, covenantor or covenantors, and such devisee and devisees, or the devisee or devisees of such first-mentioned devisee or devisees, jointly, by virtue of the Act.

If no heir, against de visee.

Sect. 4. If there shall be no heir at law, actions may be maintained against the devisee solely.

Limitations, &c. tor por

Sect. 5. Limitations, or appointments, detions, &e, vises, or dispositions for portions, or just debts, 3 & 4 Will. & not to be affected (a).

M. c. 14, s. 4.

(a) Where there is a devise for the payment of debts, the case is taken out of the statute, and the creditor can come only as the will directs.—Miller v. Horton, 1 Cowper, C. C. 45; Plunket v. Penson, 2 Atk. 292 ; Lingard v. Lord Derby, 1 Bro. C.C. 311; Earl of Bath v. Earl of Bradford, 2 Ves. 577; and a charge for payment of debts being tantamount to a devise for the same purpose, the estate so charged will be deemed equitable assets. – Bailey v. Elkins, 7 Ves. 325 ; Ball v. Harris, 4 Myl. & Cr. 267. But if the devise for payment of debts does not provide for such payment in a practicable manner it does not take the case out of the statute.—Hughes v. Doulben, 2 Bro.C.C. 614.

Where an estate is devised generally for payment of debts, or subject to debts, simple contract creditors are entitled equally with creditors by specialty; and if any of the creditors by specialty have exhausted any part of the testator's personal estate

sold before

3 & 4 Will. &

Sect. 6. Heir at law to be liable for any debt, Heir liable or covenant, although he may sell the estate thongh estate before action brought, and execution may be action. taken out upon any judgment obtained to the M. c. 14, value of the land sold; but lands, &c. bonâ fide aliened before action brought shall not be liable to such execution.

8. 5.

Sect. 7. Where any action of debt or cove- Heir may nant upon any specialty is brought against the per descent. heir he may plead rien per descent.

3 & 4 Will. &
M. c. 14,
8. 6.

Sect. 8. Devisees to be liable in the same Devisees manner as heirs, notwithstanding the lands, &c. lands aliened. devised to them shall be aliened before the M. c. 14, action brought.

3 & 4 Will. &

S. 7.

Sect. 9. Traders dying seised of or entitled Traders' es. to any lands, &c. not charged by their wills, assets to be or devised subject to payment of debts, and in equity; which would be assets for payment of specialty 74, s. 1. debts, the same shall be assets to be administered in Courts of equity for the payment of all their just debts, as well simple contract as


47 Geo. 3, c.

in satisfaction of their debts, they cannot receive any further satisfaction out of the testator's real estate, constituting equitable assets, until the simple contract creditors are placed puri passu. Girling v. Lee, 1 Vern. 63; Plunket v. Penson, 2 Atk. 293.

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