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Eldon, in the late case of Ekins v. Bailey, observed, that the rule cannot be accurate when it is stated that the descent ought to be broken.
If we suppose a devise to trustees in trust to pay debts, and all the trustees to die in the life-time of the testator, the estate must descend upon the heir, but it is clear the assets would be equitable. By the failure of the devise, the heir must have it, as the trustees would have had it, subject to the debts, and yet the descent is not broken (2),
Remedy at law upon the statute.
The action, by the express direction of the statute,
(2) These devises are greatly promoted in equity. But though a devise of lands for payment of debts was formerly held to include those upon which the statute of limitations had run, 2 P. Wms. 373, and see 3 P. Wms. 89, Cowp. 548. 2 Vern. 141, Gofton v. Mill. Yet this general doctrine seems now to be controuled; and the distinction seems to be between those debts
which the statute has already run in the testator's life, which are still to be presumed to be paid; and those upon which it has not run ; which are not subject to be barred by its running after the death of the testator; for the trustee's neglect shall not prejudice the creditor. Executors of Fergus v. Gore, Ca. temp. Lord Redesdale, 107. Where debts are directed to be paid out of rents and profits, the court will, if neces sary,
decree a sale. 2 Vern. 26, Berry v. Asham. Though per. haps it is otherwise if out of the annual rents. 1 Vern. 104. So equity will supply the want of a surrender of a copyhold to the use of the will, if it is devised for payment of debts, as it will for a wife or children unprovided. 2 P. Wms. 490. 12 Vez. Jun. 216. The doctrine of election does not prevail against creditors taking benefi under a devise for payment of debts, and disputing the will in other respects, 12 Vez. Jun. Kidney v. Coussmaker,
must be brought against the heir and devisee jointly. And courts of equity hold themselves equally bound by the statute in this respect, and insist upon the heir’s being made a party to the proceedings; for it is only by the act that the property becomes assets in hai.ds of tie devisee, and as that statute requires the heir to be a co-defendant, the remedy must be followed as it is prescribed, and a bill in equity is as an action at law. Perhaps, if the heir could not be found, the bill might charge that the plaintiff had made enquiry, and could not discover the heir'.
If the heir happen to be made a joint devisee with others, then the action should be against the heir and devisees jointly, charging the heir both as heir and devisee. Supposing the estate be limited to several in succession by the devise, it seems proper to make them all defendants in respect of their estates; as where property is devised to go in strict settlement, making a tenant for a life, with remainder to trustees to preserve contingent remainders, remainder to the first and other sons of the tenant for life in tail; it would be prudent, if not absolutely necessary, to make the heir together with the tenant for life, the trustees to preserve, and the son or sons of the tenant for life, parties; and as the sons do not claim by descent, the parol could not demur.
11 P. Wms. 99. Gawler v. Wade. 2 Atk, 125, Warren v. Stawell. For the proper form of declaring against the heir and devisee jointly. See Clift's Entries, 243. pl. 19.
It is said, indeed, to be the general rule that where a devise is fraudulent under this statute, and heir thereby becomes subject to the action, together with the devisee, by virtue thereof, if such heir is an infant the parol cannot demur".
Of the estate per auter vie under this statute.
In respect to estates pur auter vie it should be observed, that as by the statute of frauds, 29 Car. 2, c. 3, sect. 12, an estate pur auter vie, which comes to the heir as special occupant, is made assets by descent, as in the case of lands in fee simple, and devisable by a will in writing signed by the devisor, and attested in his presence by three or more witnesses, so a devise of such an estate is also held to * come within the statute of fraudulent devises, and to be void against specialty creditors'.
k See 1 Vez. 27. Beaumont v. Thorp, and as to the mode of pleading by the heir and devisee, see Gott v. Atkinson, Willes, 527.
See 3 Atk. 465, Westfaling o. Westfaling.
REVOCATION OF WILLS.
Construction of Sect. 6. of the Statute of Frauds.
BEFORE the statute of 29 Car. 2. wills in writing of real estates might be revoked by parol; and, indeed, after that statute, such power would still have existed, . (as we may conclude in analogy to the doctrine of holding written agreements revokable by parol notwithstanding the 4th section,) if by the 6th and 22nd sections, special provisions had not been made to prevent it. Thus it is held in regard to the 12 Car. 2. c. 24. giving power to the father to appoint a guardian of his child, that the appointment under that statute may still be revoked by an instrument made expressly for that purpose attestation ; because no positive provision was made against it by that statute”.
* See 7 Vez. Jun. 376, 377, ex parte Ilchester. Ante, 239.
Much has been said on the difference in the
penning of the 5th section of the statute respecting the execution of a will of lands, and of the succeeding section, which prescribes and restricts the methods of revocation. At the end of the case of Right v. Price", in Douglas's Reports, the learned Reporter has added a note, in which he has animadverted upon the difference in the language in the two clauses, which he attributes to inaccuracy in the composition of the Act; and it cannot be denied, that the variation in the terms, where the same principle must have governed, seems hardly explainable, but by imputing a mistake to the legislature. By the 5th section, the testator is not required to sign in the presence of the subscribing witnesses, but the subscribing witnesses are called upon to attest in the presence of the testator.
And Mr. Douglas observes in the note alluded to, that he believes it is universally understood, that, to satisfy this 5th section, a testator must sign in the presence of the witness,
But by what has been above produced to the reader on this subject, it must have sufficiently appeared to him, that such actual signature, in the presence of the witnesses, is not held to be requisite, and that it is enough, if the testator acknowledges his handwriting to the signature, or publishes and declares it to be his will, when the witnesses subscribe their attestations.