1799. CHASSAING v. object of the Court in such cases is to take care of the interests of the wife and children, and not to give the husband who had married her under circumstances immoral or dishonest, or which the Court could not approve, advantages, which in the PARSONAGE. usual course of business upon a fair and open treaty of marriage the Court would not give, upon that general principle as well as upon the particulars of the proposal thought fit to disallow it. Upon this Report a petition was presented by Chassaing and his wife; stating the amount of the funds, consisting of 62951. 3s. 4d. 3 per cent. Consolidated Bank Annuities, 16007. Reduced Annuities, and 6167. 2s. 11d. cash; and in regard that the petitioner Chassaing has been at considerable expence, exhausted his own private fortune, and contracted great part of his present embarrassments, in supporting his wife and children for several years, during which her fortune has been suffered to accumulate, and the accumulation composes more than is requisite for the payment of his debt, and his creditors have been kept out of their claims so long upon the idea, that the same had been provided for out of these trust funds, which have been assigned by both petitioners for the purpose, that it cannot be expected they will shew him any farther indulgence, and as he has neither the present means nor a prospect of having means of satisfying such debts except out of her fortune and his being sued and imprisoned will not only be injurious to the credit and interest, but destructive of the happiness and comfort of her and her children; and as she has for several years had experience of his good conduct and affectionate attachment, and is particularly desirous, that a sufficient part should be appropriated for his debts, the petition therefore prayed accordingly. The Master of the Rolls, when the petition was opened, said, he ought not to forget what Lord Thurlow did upon the petition in Like v. Beresford (13); though he thought it a harsh thing in that case: but this was much worse. Mr. Graham, Mr. Richards, and Mr. Hart, in support There are many circumstances distinguishing this case from (13) Ante, Vol. III, 506. [ *19 ] 1799. CHASSAING v. that. There the Court was circumscribing the power of the husband for the benefit of the wife and children. They had separated; and had different interests. What was to be given PARSONAGE. was to go immediately from the wife to creditors of the husband. In this case almost all the debts were incurred in necessary expences for the maintenance of the wife and children. The order, if unfavourable to the petition, will recoil upon them. His imprisonment will not relieve his family. He has been for many years incurring meritorious debts, to maintain his wife in the situation, in which he found her. In the common case of elopement with a ward of the Court, the interest of the fortune for the maintenance of the husband and wife is scarcely ever refused. Mr. and Mrs. Beresford were separated they did not agree; and there was no prospect of their living together. The parties propose to * live together; and have lived with great tenderness. By refusing this application the Court will throw him into a situation, in which the criminal law of the country would not place him. He has exhausted all his own property in the maintenance of his family, and only desires to be put in a way to support them by his industry. He has made atonement for his conduct, as far as he can. All he asks is to the amount of 17007.; and the accumulation is above 20007. [ *20 ] Nov. 14th. MASTER of the ROLLS. I will read over all the proceedings; and look again into Like v. Beresford. The only question is, whether any part of these debts shall be paid. I shall certainly take care, that the husband shall have no part of it. MASTER of the ROLLS. I have read all the papers; and it is impossible for me to entertain a petition, praying, as this does, that the debts of this man shall be paid; in that way giving him completely the fruits of his very improper conduct; and I cannot by any means authorize in any degree such a proposal as he has thought fit to make. The utmost, that he could obtain (and I doubt, whether I could go so far) would be, that the settlement should be to her separate use for life, and after her death to her children, children, with a power to her to give him a part during his life. But as to paying his debts, incurred under these circumstances, after having carried her away, one of his scholars, 1799, CHASSAING บ. and living with her in such a way, that his marriage with her PARSOnage. would not have been near so great an offence, the attempt is in my opinion an insult to the Court. At present I shall only refer it back to the Master to receive other proposals; for these are such as I shall by no means accede to. I wish the parties would take the Lord Chancellor's opinion. PULLEN v. SMITH. [ 21 ] 1799. Nov. 20th. Admission of assets prevents Admission, ROWLAND FULLER by his will gave to his niece Ann, wife of Edward Pullen, an annuity or yearly sum of 30%. for the term of her natural life, to be paid by equal half the necessity yearly payments, for her sole and separate use, free from of setting forth the debts, control, and engagements of any husband she then the accounts. had or might hereafter have; and he directed his trustees and that there is executors by and out of his personal estate to purchase so standing in the much stock in the 3 per cent. Consolidated Bank Annuities names of the as would produce an annual sum sufficient to answer and pay executors upon the said annuity, and to cause the same to be transferred into the trusts of their own names for that purpose; and after the decease of the said annuitant he gave the principal sum, which should have been laid out for securing such annuity, to the eldest son cents., and ofof such annuitant, and, if there should not be a son, to the fering an apdaughter or daughters in equal shares, if more than one; and propriation, he directed the interest to be applied for maintenance. The testator then, after specifically devising a freehold estate, gave and devised to Charles Smith and two other persons and their heirs all his messuages, lands, &c. at Heron Hill in Kent, and all other his real estates whatsoever and wheresoever, to hold to them and their heirs, upon and he declared his will, that the net money to arise by sale of his real estates should be considered as part of his personal estate; and he appointed the trustees his executors. trust to sell; the will a considerable sum in the 3 per was held suffi cient to entitle the Plaintiff, a contingent le gatee, to move for that purpose; and by consent the order was made, as upon admission of assets sufficient to satisfy the Plaintiff's demand, to transfer, &c. 1799. PULLEN v. SMITH. [ 22 ] After the death of the testator the bill was filed on behalf of the only child of Ann Pullen, an infant, against the trustees and the parents of the Plaintiff, praying in the usual manner, that the trustees might either admit assets sufficient to purchase so much stock as would produce an annual income sufficient to answer the annuity, or that an account might be taken of the testator's personal estate, debts, &c.; and, if necessary an account of the rents and profits of his real estate received by the said Defendants; and that the will might be established; and the estate sold, with the necessary consequential directions. The executors by their answer stated, that there is now standing in their names upon the trusts of the will a very considerable sum in the 3 per cent. Consolidated Bank Annuities; and the whole dividends and interest arising therefrom have always since the decease of the testator been half yearly paid and divided to and among the several persons entitled thereto under the said will with regularity, and, as the Defendants believe to the satisfaction of Ann Pullen and her husband; who have never requested any separate appropriation for such annuity; but nevertheless the Defendants hereby consent to transfer 1000l. 3 per cents., part of the said stock as a specific appropriation to secure such annuity and the legacy to the Plaintiff. To this answer several exceptions were taken for not setting forth the accounts and answering particularly the several interrogatories. The answer was reported insufficient in the whole of the exceptions; and an exception was taken to the Report. Mr. Alexander, in support of the exception to the The whole of this bill is turned into exceptions. As to the foundation of them, it has always been understood, that the admission of assets makes it unnecessary for the executor to set out these accounts; and this bill so understood it; for the prayer is in the alternative. The answer consents to a specific appropriation to secure the annuity and legacy out of this fund; and they might have moved the next day upon that, as an admission. Mr. W. Agar, for the Report. When the Defendants offer to set apart a particular portion of the fund, it is very material, that the Plaintiff should have that set apart free from the trusts of the will. It is not enough to appropriate a part of the property appearing upon the records of the Court to be liable to the debts. The invariable practice of the Court is, that the party shall admit assets, or set forth the account; and in this case it is very material that that practice should be adhered to. The real estate is made subject to the debts; and the executors are in trade. Lord CHANCELLOR. Does not your argument go to this; that executors cannot pay a legacy without taking an account of the debts? For the Plaintiff. If the Defendants had offered to sell part and pay us, that would have been different. If they pay any part of money out of their hands, it is not charged with the trusts. Lord CHANCELLOR. You are anticipating what will be the wording of the order, when you move, that they may pay in the money. Suppose the order to run thus; that the executors, admitting assets in their hands sufficient to satisfy the Plaintiff's demand, shall transfer: will not that be sufficient? The Defendants would not object to that, if, instead of taking exceptions the Plaintiff had only made the motion, guarding it so. The exceptions were over-ruled; and, the Counsel for the Defendants consenting, an order was made, as upon a motion, that the executors, admitting assets sufficient for payment of the annuity and legacy, may transfer 1000l. 3 per cent. Consolidated Bank Annuities into the name of the Accountant General to that account. 1799. PULLEN v. SMITH. [ 23 ] |