Page:The English Reports v1 1900.pdf/646

tripping, and his being thrown forward upon the pummel of the saddle, which first confined him to his bed, and being attended by a fever, occasioned his death on the 12th of the same month.

William Roots, while his wife was living, made his will, dated the 30th of January 1766, in which, by virtue and in pursuance of the power to him reserved by the indenture of the 3d of May 1765, he devised all his freehold messuages and real estate to the respondents Rogers and Whittel, and their heirs, upon the trusts after-mentioned, viz. to the use of Elizabeth his wife; remainder to all and every his child and children on the body of his said wife in tail; remainder to his nephew, the respondent Stephen Forth, son of his sister Ann Forth, in tail; remainder to all and every of the children, as well daughters as sons, of his late brothers John and Thomas Roots, as tenants in common, in fee. And he thereby [373] bequeathed all his personal estate to the respondents Rogers and Whittel, upon the trusts therein mentioned, and appointed them his executors.

Upon the death of William Roots, the respondents Rogers and Whittel renounced the executorship of his will; and administration, with his will annexed, was thereupon granted to the respondents Oliver and Sisley.

The appellant, after the death of William Roots, paid off the money due on Mrs. Bailiff's mortgage, and an assignment thereof was made to the respondent Pope, in trust for the appellant.

In November 1771, the appellant filed his bill in the Court of Chancery, against the respondent Thomas Roots, the heir at law of William Roots, and also one of his coheirs, according to the custom of gavelkind, and against the respondents John Roots and George Roots, the other coheirs in gavelkind, and against the other proper parties, praying, that an account might be taken of what was due to the appellant, for principal and interest upon the mortgage so assigned to him; and that the respondents Oliver and Sisley might either admit assets of William Roots sufficient to discharge the same, or might account for his personal estate, and that thereout the principal and interest which should be found due to the appellant might be paid to him; he offering to pay or allow thereout the half-yearly payment of the annuity of £70 which became due on the 5th of October preceding the death of William Roots; or if such personal estate should be insufficient to discharge the same, then that such deficiency might be raised out of the real assets of William Roots, by sale of a competent part thereof, and that all proper parties might be decreed to convey the two messuages mentioned in the agreement, to the appellant and his heirs; and that the respondent Pope might be decreed, upon the payment of the principal money and interest upon the mortgage, to assign the residue of the mortgage term, as to the said two messuages, in trust for the appellant and his heirs, to attend the inheritance of the same premises, and as to the residue of the mortgaged premises comprised in the same term, in such manner as the Court should think proper to direct.

The respondents, by their answer to this bill, insisted, that the agreement entered into between William Roots and the appellant ought not to be carried into execution, for that it was highly reasonable to presume, that the parties had altered their sentiments relating thereto, inasmuch as the same was not completed in the lifetime of William Roots; and that the agreement was unfair and unreasonable, for that if William Roots had sold the inheritance of the two messuages, he might have got £850 for the same, with which sum he might have purchased a much better annuity for his life than the appellant agreed to pay; they said, that William Roots did not die seised of any real estate, except the three messuages included in the mortgage, and two other tenements in East-Lane in Maidstone, and that his personal estate was not sufficient to discharge the mortgage, and his other debts.

[374] The cause being at issue, the appellant proved the agreement between William Roots and him, the conveyance by which the two houses were purchased by William Roots for £250, the notice given to Mrs. Bailiff that he should pay in her mortgage-money, and his directions to his attorney to apply to Mrs. Bailiff, for the writings of the mortgaged estate, in order to draw a conveyance to the appellant of the two houses, and that the title deeds were delivered by Mrs. Bailiff accordingly; but that the business was postponed on account of her indisposition, and upon no other account whatsoever, she having been several times applied to, and always