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Chichester was exempted from the debt, and that his real estate only ought to remain chargeable therewith: and this point being determined against them, it was taken for granted, nor did they attempt to deny (for if they had, proof was ready to have been granted on the occasion) that the appellants had assets sufficient: and it was plain, that they themselves were of that opinion, by making the other point the ground of their defence, and insisting thereon in bar to a discovery of assets.
Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and that the decree and other subsequent orders and proceedings therein complained of, should be affirmed. (Jour. vol. 18. p. 662.)
[19]Case 8.—Joseph Bunker,—Plaintiff; William Cook, and Another,—Defendants (in Error) [24th February 1707].
[Mew‘s Dig. xv. 1259.]
1 Salk. 237. Holt’s Rep. 248. Viner, vol. 8. p. 64. ca. 1. p. 66. ca. 11. Fitzgibb. 228. 2 Eq. Ca. Ab. 295. ca. 1.
By indenture, dated the 6th of October 1691, made between William Bokenham, of the first part, Frances Manley (afterwards his wife), of the second part, and Thomas Manley and Jane Manley, of the third part; the said William Bokenham covenanted, that within two months after his marriage with the said Frances, he would pay £2000, and the said Frances also covenanted to pay £1500, and it was agreed, that those two sums, making together £3500, should be put forth at interest, or laid out in lands, to be settled to the use of the said William Bokenham and Frances, and the heirs of their bodies; and for want of such issue, to the use of the survivor of them, and his or her heirs.
The marriage took effect, and the $1500 was paid pursuant to the wife's covenant, but the husband's £2000 was not paid. Some months afterwards, he was appointed to the command of the Grafton ship of war; and being hound on a foreign expedition in that ship, he, on the 3d of May 1692, made his will, according to a form which was then generally made use of by seamen; and therein was contained a devise to his wife, in these words:
I do hereby give, devise, and bequeath unto my well-beloved wife, Frances Bokenham, all such sum and sums of money as now is, or hereafter shall grow due to me from their Majesties, for my own and servants service, either by sea or land; as also all such sum and sums of money, lands, tenements, goods, chattels, and estate whatsoever, wherewith, at the time of my decease, I shall be possessed of invested, or which shall then, or of right doth appertain unto me. And I do hereby nominate and appoint her the said Frances Bokenham, my well-beloved wife, to be the whole and sole executrix of this my last will and testament.
The testator, about nine years after the making of this will, received a sum of £2173 in right of his wife, the whole of which he laid out in the purchase of an estate in Kent, of the nature of gavel-kind, of about £200 per ann.; and on the 19th of November 1702, he died, without having republished his will, [20] and without any issue of his body, leaving the defendant Bokenham his brother and heir.
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