Page:The English Reports v1 1900.pdf/598

ter or daughters of the said Walter Chetwynd and Barbara his wife, and to such issue of their bodies, and for such estates, determinable upon failure of issue, and with proper limitations to support contingent remainders, as the said Walter Chetwynd the father should, by deed or will, direct or appoint; and for want of such direction or appointment, to the use of the appellant for his life; remainder to trustees during his life, to support contingent remainders; remainder to the first and other sons of the appellant in tail male; remainder to John Chetwynd, since deceased, the second son of the said Walter Chetwynd and Barbara his wife, for his life; remainder to trustees to support the contingent remainders; remainder to the first and other sons of the said John Chetwynd in tail male; remainder to all and every other the sons of the said Walter Chetwynd, the father, by the said Barbara, in tail male successively; remainder to the daughters of the said Walter, by the said Barbara, in tail; remainder to the right heirs of the respondent Fleetwood. And as to the residue of the said manors, lands, and premises, whereof no use was before declared, the same was declared to be from and after [302] the death of the respondent Fleetwood, to the use of the said William Chetwynd and John Wightwick, and their heirs, in trust to sell and dispose thereof, or of any part thereof, and thereby to raise money sufficient to pay and satisfy to the said Walter Chetwynd, his executors, administrators, and assigns, as well the £1000 advanced by him to the respondent Fleetwood, as also the £274 19s. by him then paid to the said William Beckford, with interest from the times of payment thereof; and also all such sums of money as the said Walter Chetwynd, his executors or administrators, should pay either for principal or interest of the £5000 due to the said William Beckford, or which the said Walter Chetwynd should advance to the respondent Fleetwood in his life-time, with interest for the same from the times of payment thereof; and after satisfying the same, in trust to convey such of the said premises as should remain unsold, to the use of the said Walter Chetwynd and Barbara his wife for their lives, with such remainders over as were before limited of the other parts of the estate. And the said Walter Chetwynd thereby covenanted with the respondent Fleetwood, to pay to Mr. Beckford the said £5000 and all interest for the same from the 9th of January 1724, and to indemnify the respondent Fleetwood against the payment thereof. And Fleetwood covenanted, that in case he should leave any issue by his said wife, his executors or administrators should, within one year after his death, repay to the said Walter Chetwynd, not only the said sums of £1000 and £274 19s. already paid by the said Walter Chetwynd, with interest, but all such other sums as he, or his executors or administrators should pay on account of the said £5000 and interest, from the respective times of payment.

By indenture dated the third of the same June, the said Walter Chetwynd demised to the respondent Fleetwood, his executors, administrators, and assigns, a messuage, farm, and lands thereto belonging in Grendon, in the county of Warwick, for ninety-nine years, for securing the payment of the said mortgage of £5000 and interest, and indemnifying the respondent Fleetwood therefrom.

Walter Chetwynd, the father, paid the interest of the £5000 to the 9th of July 1731, but paid no part of the principal, and died intestate on the 5th of February 1731, without having made any appointment, and did not leave any real or personal assets to make good his covenant; and Barbara his wife died on the 12th of March following. There were issue of this marriage the appellant, the eldest son and heir, the respondents William Henry Chetwynd, and Barbara Blacknell, all then infants, and no other issue; John, the second son, dying soon after the aforesaid settlement was made. And administration of Walter, the father, was granted to the respondent Lane.

Walter Chetwynd being dead, and not having left any assets, and all the children infants, and their guardian refusing to have any concern in the matters aforesaid, and the respondent Fleetwood being called upon for payment of the £5000 and interest to the respondent Beckford, as the executor of the said William Beckford, [303] and the estate at Grendon being incumbered to the full value, prior in time to the conveyance thereof made to the respondent Fleetwood, as aforesaid, and the said respondent being thereby brought into difficulties, he, on the 24th of March 1732, exhibited his bill in the Court of Chancery, against the appellant and the respondents William Henry Chetwynd, Barbara Blacknell, then