Star.
London, England, 1830-07-29 00:00:00

ROBERTS V. WALKER.

Mr. TIMMY appeared for the plaintiff. In this case a testatrix
had devised all her real and personal estates to nosier* to convert
them into one fund of money, out of which she directed all her
debts and legacies to be paid. Under such a disposition of pro-
perty, according to the doctrine of that Court, the debts and be.
quests fell upon the two funds derived from the reality and pawn-
alt pmportionably to their relative values. Here, however, the
hetr.at.law had set up his claim to the produce of the real estates,
maintaining that it should only be made to contribute to the debts,
&c. on the exhaustion of the personalty.
Mr. PEMBILaTON and Mr. Lirricu, for the heir at law, main-
Wined this proposition, and submitted to his Honour a considerable
number of cases to prove that even where a testator had directed a
common fund to be made out of the two species of property for the
purposes of his will, the rights of the heir-at-law had in tact been
sustained by the decisions.
His Honour was of opinion that the claim of the hetr-at.law
could not be sustained in this case. He thought that it wss alto-
gather a case of intention, and it was clear that it had been the ob-
ject of the testatrix to render both her real and personal property
equally liable to her debts, funeral expenses, and legacies. He
should look into the authorities, although even if be should find
them to be such as Mr. Lynch had presented them, he did not think
he should abide by them.
111 r. WRAT stated that in this case, as in two others which had
lately been before the Court, one of the legatees had been a person
convicted and transported for a term of 14 years, for an aggravated
larceny, before the interest to him had accrued.
On this point, although the Court seemed to have little doubt
that a forfeiture of this legatee's estate to the clown had taken place,
yet as his Honour has the first of the cams which lately occurred
still under his consideration, he reserved his decision till be should
dispose of both cases at once.
His Howotrx took occasion, in the course of the day, to state to
the bar, that he wished to correct a misrepresentation which had
been made (by the regular law Reporter) of his opinion upon a else
which bad lately been before him. He did not recollect the precise
circumstances of the case, but the facts upon which the error had
arisen were these :—A Mr. Thring (or some such name) had be.
come the purchaser of the larger part of an estate. On that oeca.
sion the title deeds of the whole were delivered to him, on his con.
tracting to produce them at any time, at the request of the vender
or his assigns. The vender subsequently sold the other part of the
estate to a person named Slade (the name was immateriaL) He
did not covenant to produce the tide deeds, but the contract of Mr.
Thring went with the land. This smaller portion of the estate
was again sold, but on that occasion the person contracting to pur-
chase was not satisfied to complete his agreement, on the ground
that the deed of 111 r. Thring had been in part eaten away. No
attested copy of it remained, and he conceived he could not acquire
the benefit of the production of the deeds which had been secured
by it. An application was consequently made to Mr. Thring,
to execute a new covenant. He, however, had, in the mean time,
sold his part of the estate to a person who had not paid all the
purchase, and had given a mortgage on the land itself for a
remainder. Mr. Thring consented to enter into the new contract
for the production of the title-deeds, for so long a period as, in hls
character of mortgagee, he should be entitled to hold them. TIN!
question which came before the Court was whether, under those sir•
cumstances, the purchaser was compellable to take a title ? He (the
Master of the Rolls) had expressed his opinion that he was not, as
he could derive no benefit from the original contract, and with re-
spect to the second, it did not run with the land, but would deter.
mine as soon as Mr. Thting's rights (as mortgagee) should cease.
He had been represented to have stated that Mr. Thring'* contract,
alluding to the first contract, did not run with the land. This was
the mistake which he (the Master of the Rolls) wished to be cot.
tected. His meaning had been that Mr. Thring 's second con.
tract could alone avail during the time that he should be mortgagee.
After a few remarks to a Learned Council who seemed to belong
to the conveyancing branch of the profession,
His Howoua said further, that he was of opinion that a contract
went to the assignment of land, as all contracts did which ran with
the land and were not collateral.