1843. Dec. 7. 9. 16. Settlement by the heir, upon his marriage, of the ancestor's estates, supported against the claims of the specialty creditors of such ancestor. Sir W. H. died indebted in specialty. After his death, on the marriage of his heiress, a settlement TH RICHARDSON v. HORTON. HIS case came before the Court upon exceptions to the Master's report. Several of the circumstances of the case will be found in a former report of Farrow v. Rees. (a) Sir Watts Horton died on the 5th of November 1811, indebted on specialties in which his heirs were bound. He left an only daughter his heiress at law. The real estate of which he was entitled to dispose consisted of reversions, one of which fell into possession upon his own death. By his will, he devised his real estate to was executed, his wife for life, with remainder to his daughter. He whereby (after did not charge his real estate with the payment of his debts, and his personal estate was found insufficient to pay them. reciting the insufficiency of the personal estate to pay the debts, and that a considerable sum was due on that ac of the estates were con In the year 1813 Miss Horton married the Defendant Mr. Rees. On that occasion, and in consideration of the count) a part then intended marriage, and for the purpose of providing a fund for payment of the debts, an indenture, dated the 5th of July 1813, was executed, by and between the Defendant Mr. Rees of the first part, Miss Horton (dedebts, and the scribed as the heir of Sir Watts) of the second part, remainder was veyed to provide a fund to pay the settled on the Lady Horton of the third part, Lord Stanley and Wilheiress, her intended hus band, and their issue. (a) 4 Beav. 18. liam Many years after, the produce of the estates appropriated to the payment of the debts was found insufficient. Held, that the circumstances did not afford any proof of fraud, or any want of bona fides in the execution of the settlement, that the settled estates were not liable to the specialty debts; and that even if a want of bona fides had appeared, relief could only be obtained in a suit putting the mala fides properly in issue. liam Horton of the fourth part, and William Cross and John Lee of the fifth part. This deed, amongst other things, recited that the personal estate of Sir Watts was insufficient for the payment of his debts, and that a considerable sum was due on that account, which it had always been the wish of Lady Horton and Miss Horton to discharge: that a marriage was intended between Mr. Rees and Miss Horton, and that on the treaty for the same, it had been agreed, that a part of the estates should be sold, for the purpose of providing a fund for the payment of all the debts of Sir Watts, and that the other estates should be settled; and that for the purpose of enabling her daughter to make the settlement, Lady Horton had agreed to relinquish the life estate given to her by the will; and it was thereby witnessed, that the estates were conveyed by Lady Horton and Miss Horton to Lord Stanley and William Horton, as to part of them, in trust to sell and to apply the money arising from the sale in payment of all the debts of Sir Watts, and, after full payment thereof, to pay any surplus to Mr. Rees; and, until the sale, the rents of these estates were made payable to the person, who, for the time being, should be in possession of the other estates. The remainder of the estates were to be held in trust for Mr. Rees for life; after his death, provision was made for payment of a jointure to his widow, and portions for the younger children of the marriage, and, subject thereto, the estates were limited to the first and other sons of the marriage. The bill in this cause was filed, in 1824, by unsatisfied specialty creditors of Sir Watts Horton. It was not thereby alleged that the settlement was in any manner fraudulent; but it was charged, that if the personal estate was insufficient for the payment of the debts of Sir Watts, the deficiency ought to be made good out of the real estates devised to Miss Horton, subject to the VOL. VII. I life 1843. RICHARDSON V. HORTON. 1843. RICHARDSON v. HORTON. life estate of Lady Horton, or which descended on Miss Horton; and that, notwithstanding the settlement, the specialty creditors were entitled to have a sufficient part of all the estates therein comprised, sold, to supply the deficiency of the personal estate. The bill prayed for the usual accounts; and if the personal estate and also the money arising from the sale of the estates conveyed to be sold should be insufficient for payment of the debts, that the deficiency should be raised by sale or mortgage of the other real estates of the testator. The Defendants, Mr. and Mrs. Rees and Lady Horton, in their answer, stated their belief, that the provision made by the settlement for the payment of all the debts of Sir Watts was fully sufficient for that purpose, except such of the debts as were secured by mortgage. The bill charged no fraud, and the answer, necessarily, contained no defence to any imputation of fraud. The decree ordered that the usual accounts of the personal estate, and of the monies arising from the sale of the estates conveyed to be sold, should be taken, and directed the due application thereof; and, if the personal estate and those monies should be insufficient for the payment of the debts, it was ordered that the Master should take an account of the real estate of the testator liable to pay his debts. The Master, having found that the personal estate and the purchase monies of the estates sold were insufficient to pay the debts, proceeded to take an account of the real estates of the testator liable to pay his debts; and it appearing that all the unsold estates were subject to the trusts of the settlement, he found that there was no real estate of the testator liable to pay his debts. The Plaintiff took exceptions to his report. Lady Lady Horton and Mrs. Rees were now both dead; but there was issue of the marriage between Mr. and Mrs. Rees. Mr. Turner and Mr. Rogers for the Plaintiff in support of the exceptions. Though the estate was reversionary, still it formed assets for the payment of the testator's specialty debts; and it would have been decreed to be sold for that purpose; Tyndale v. Warre. (a) At the time of the testator's death, his real estate was liable to the payment of his specialty debts: the remedy of the specialty creditors would not have been merely personal against the heir, in respect of assets descended, but the testator's estate would specifically have been made applicable to the payment of the debts. Even at law the judgment would be that the creditor "do recover his debt and costs, to be levied of the lands and tenements which were of the testator in fee-simple at the time of his death (b);" and in equity the estate would have been ordered to be sold for payment. (c) The Court would order a receiver, upon a deficiency of personal estate, and restrain a purchaser from paying the heir; Green v. Lowes. (d) Such were the rights of the parties at the death of the testator: the question is, whether the heiress, by a settlement of the estate on herself and her family, could defeat those rights. By the statute of Elizabeth (e), all alienations and conveyances, for the intent and purpose to delay, hinder, or defraud creditors, are declared to be clearly and utterly void. This settlement was a mere shift and contrivance of the (a) Jacob, 212. (b) Tidd's Forms, 389. (c) Seton's Decrees, 84. (d) 3 B. C. C. 217. heiress, 1843. RICHARDSON ย. HORTON. 1843. RICHARDSON V. HORTON. heiress, who was bound by the obligation of her ancestor, to delay the creditors, and would be void under the statute. The statute of the 3 & 4 W. & M. c. 14. makes wills void, as against creditors by bond binding the testator's heirs, and gives a remedy against the heir and devisee jointly; and the fifth section makes the heir answerable, in cases where he sells before action brought; and execution may be taken out as if the debt were the debt of the heir, "saving that the lands, tenements, and hereditaments bonâ fide aliened before the action brought shall not be liable to such execution," intimating clearly, that the lands not bonâ fide aliened (as in the present case) are still to be liable. By the combined operation of these two statutes, the estate still remains liable to the claim of the bond creditors. The heirat law, like an executor, must have the means of selling the real estate for the purpose of providing a fund for the discharge of the specialty debts, and a bona fide sale for that purpose would be protected; but by settling the property on the heiress's family, no fund could possibly arise for the discharge of the debts its object, on the face of it, was not to pay the debts, but to exclude the rights of the creditors. The settlement recites that a considerable sum was due on account of the debts of the testator, and that the personal estate was insufficient for the payment, and yet it is attempted, by that deed, to withdraw the real estate, which was the only means of payment, from the creditors. Every person taking under the settlement had notice that the heiress was improperly dealing with the estate for her own benefit, and not for the purpose of raising a fund for payment of the specialty debts. They are, therefore, bound by that notice, and can claim no more than what, in equity, the settlor herself was entitled to. That |