The Sun.
London, England, 1804-04-03 00:00:00

nt he has direeted them to be advanced ; and
;ir 'ITh was Sewell :Ina Lott! Kenyon were of
n, the wh personai prov,erzy was liable,
e the sum dirteted to he ...:(ivanced in support
trad, was ul:nniately insufficient for the pay-
I det,t, ; but the consequence is, that no
there is such a cliccretion, can ever be
ed. I doubt much wheol,fr-the case of Hari...
rovvg.:od can be eipported to die extent it
to the amount 0: C,e tx:ent, anti the
I of opinion the Proofs'
,x7urvl. As to !he other point, I wish
ror tiler argument." .
.'etiii,m accordingly stood over until this

.. hen it was again argued upon the point re-
screed, after which the Load CHANCELLOR sdid,
" The case of Flankey ti. Tov..gocd I remember
ver,. well. It was hardly argued, and I doubted •'
the decision at the rime. In this case a Testator
by his Will has direded a particular trade to be
carried on, in which p,rt of his property is em-
barked, and he diretis the di position of all the
other parts of his property. If he had continued :1
to live, it would clearly have been all liable, btit'
the question is, whether it is now Both Lord:
Thorlow and Lord Kenyon concurred, that if anti
executor carried on trade under' the direttions of
the Te,ta tor, he was liable even to banktuiCY'i'l
and it is difficult to say, that he shalt not' have'a
right to indemnify himself front all the personal'
property of the Testator, in the execution 'of
whose direstions he incurred his liability. But the
situation of the creditors is simply this : they lose
their remedies against the dead tman, and get the
security of the living executor. • If, however, the
executor of a Testator chooses to put himself upon'
the risk of carrying on a trade, he cannot be per-
mitted to provide for his own personM indemnity,
Ey retaining the general assets, from a course of
administration. Wit were' so, no Will with such
a diredinn 'could ever' be executed ; and it would
also embarrass all the transations of life, if, after le-
gacies were paid, the executor could stilt haVe a right.
to demand them back, in order to provide for his
own personal indemnity. There has been no case,
either before or since ray Lord Kenyon% decisiOn 'of
Tlankey and Hammond, of whom I may truly 'sail,
that although he seldom developed the principle 'and
grounds of his decisions to others, yet to man sa'
generally decided right. This case must be consi.—
aered with reference to two elasSes of creditors.
lat, Those who were such befo.ie the Testatoi's:.
death; and zdly, Those who have become creditors
since. The first class by their own aids 'may tivei
their demands paid, but it they permit them to2l4ang.
over until the assets arc made, they Cannot' have.
much right to comolain. The' Oth'er' Cla44 'must'
be presumed to know the extent of the Teitatoi'.i*
property embarked in the' trade, and if they clause
to deal with an executor under such 'citeurnstances,
it is their own fault if that property turns out to be
insufficient. This way of considering the
seems to' me to be attended lib the !Ott iht:On- •
liebienciee, and I am therefore inclineii ton .ifilnk
ciinttarY to my Lord Ktnyon's deCision in Mulkey-
and Hamuiond, that the property embarked alone
. •