and trus tees. is also beneficially entitled, Executors entitled to any part of the testator's property - his interest, of course, passes to the assignees; and the Lord Chancellor will, if necessary, let the assignees sue in the bankrupt's name, in order to get in the effects. (1) And though the executor had committed a devastavit, who was entitled in his own right to a specific legacy, which was sold by his assignees, — it was held, that the produce of such sale in their hands was not liable to make good the devastavit ; but that the parties beneficially entitled must prove to the amount of the devastavit. (2) and com mits a devastavit. Where an executrix marries a If an executrix marries, and her husband becomes bankrupt, having previously admitted assets, in answer to a bill bankrupt. filed against them, the assets in this case become a debt of the husband, and may be proved under his commission. (3) Costs of suit incurred by a bankrupt executor in an proveable, action (brought against him after the issuing of the commission) in which he pleads a false plea, are not proveable under the commission. (4) Costs not where ex ecutor pleads a false plea. Where the credi tor of a bankrupt dies, his executor may prove. If the creditor of the bankrupt is dead, the proper person to prove is, of course, the creditor's executor or administrator. And where a debt was forgiven the bankrupt by a testator, upon condition that the bankrupt should pay an annuity to his sister, but if he failed in doing so, the executrix was to call in the whole debt · and default was made by the bankrupt in the payment of the annuity —the executrix was permitted in this case to prove the debt. (5) Where the Where the bankrupt, and another person who was solvent, bankrupt a were executors of the creditor, Lord Thurlow permitted the solvent executor to prove the debt under the commission, notwithstanding a pending suit in the ecclesiastical court as to the executorship: but the dividends were ordered to be paid into the Bank, pending the contest in the ecclesiastical court. (6) co-executor of then the creditor, the other executor ordered to prove. (1) Ex parte Butler, Amb. 74. 431. (3) 1 Sch. & Lef. 175. (4) Howard v. Jemmet, 3 Burr. 1368. (5) Ex parte English, 2 Bro. 609.; and see ex parte Bridges, 4 Madd. 269. ante. (6) Ex parte John Shakeshaft, 3 Bro. 198. and trus Where an Where an assignee becomes bankrupt with monies in his Executors hands, his estate will not be entitled to any dividends on tees. the proof made by him under the estate of which he was assignee, until full reimbursement is made to the last assignee mentioned estate of the money, which he had in his hands becomes at the time of his bankruptcy. (1) bankrupt. SECTION XI. Creditors by Annuities. to proof. The original cases in Bankruptcy, as to the proof of Former annuity bonds forfeited before the bankruptcy of the practice as grantor of the annuity, considered the penalty of the bond as the debt-not indeed as wholly receivable by the obligee, but to stand as a security for the payment of the annuity; and Lord Hardwicke's first rule was, if there were sufficient assets, merely to order the annuity to be paid half yearly, down to the death of the annuitant. But this mode of proceeding was afterwards altered (2) by him, for the better convenience of distribution. For, if the annuity was to be received from time to time as an accruing debt on the estate, that would tend to make the division of the estate perpetual; and there could, at all events, be no final division during the annuitant's life. To avoid, therefore, this inconvenience and in order to attain a dividend at a certain time, the Courts afterwards allowed a value to be set on the annuity (3), and the annuitant to come in as a creditor for that value under the commission. There 49 G.3. was also a distinction made before the 49 G. 3. c. 121. s. 17. (which was the first act that authorised direct proof of annuities eo nomine) between a covenant, and a bond, for the payment of an annuity: in the first case the arrears only of the annuity could be proved-in the last, if the (1) Ex parte Bignold, 2 Mad. 470. (2) Per Lord Eldon, 19 Ves. 245. (3) Ex parte Artis, 2 Ves. 489. Cottrell v. Hooke, Doug. 97. c. 121. s. 17. Annuities. bond was forfeited before the bankruptcy, then the value of the annuity, as well as the arrears, was proveable. (1) And this rule of setting a value on the annuity was confined to cases, where the annuity was secured by some instrument with a penalty, which had become forfeited BEFORE the bankruptcy of the grantor, by his permitting the annuity to become in arrear and unpaid. (2) For where there were no arrears due at the time of the bankruptcy, it was considered in some cases, that there was no debt then due at law, but a mere contingency as to the penalty becoming a debt in futuro, by the subsequent nonpayment of the annuity. (3) If a forfeiture, however, had once happened, the receiving payment afterwards of the arrears was held not to be such a waiver of the forfeiture, as to take the case out of the general rule. (4) Provision statute. The new statute adopts a similar provision for the proof of the new of annuities, as was introduced by the 49 G. 3. c. 121. s.17., with additional directions as to the mode of calculating the value. Thus, by scct. 54. it is enacted, that by whatever assurance the annuity is secured, and whether there are, or are not, any arrears due at the time of the bankruptcy, the annuity creditor may prove for the value of the annuity; which value the commissioners are to ascertain, with regard to the original price given for the annuity, deducting therefrom such diminution in the value, as shall have been caused by the lapse of time, since the grant of the annuity to the date of the commission. Mode of ascertaining the value. This mode of ascertaining the value is consistent with the rule laid down previously by Lord Eldon, who held, " and yet the bond was held prote able under the 7 G.1. c.31., as be ing for a debt payable at a future day. See also Brooks v. Lloyd, 1 T.R. 17., which was the case of a bond payable by instalments, and which was held proveable for the same reason, though there was no default before the bankruptcy. (4) Wyllie v. Wilkes, Doug, 519 2 Bl. 1108. that if there were not any special circumstances, the com- Annuities. missioners should ascertain the value upon the basis of the original sum paid, qualified by the time of enjoyment. (1) And the state of the money market is not a circumstance, which can affect this rule. (2) Under some circumstances however, the rule, if strictly followed, might be productive of injustice. As, where a person in a bad state of health (which is known to the grantor) purchases an annuity of him for a sum less than the usual market price, and soon afterwards recovers, whereby the value of the annuity is, of course, considerably improved; —in this case, as the probability was (when the annuity was granted) that the purchase would turn out to the disadvantage of the annuitant, it seems but just, that he should be allowed the benefit of his restoration to health having operated in his favour. (3) And, indeed, in such a case before the new statute, Lord Eldon permitted proof to be made, upon a calculation with reference to the age and improved health of the annuitant, notwithstanding the value so ascertained exceeded the price originally given for the annuity, and the grantee had enjoyed the annuity for the space of two years. (4) Sir J. Leach, however, in a recent case decided, that the commissioners are now precluded by the 54th section of the new statute, from taking into consideration the altered state of the health of the annuitant; and that where the consideration for the annuity is not money, but property, the price paid by the grantee for that property is not the criterion of value, if such value be altered by accidental circumstances. (5) In a case of a peculiar kind which came before Lord Thurlow, he permitted the whole penalty of an annuity bond to be proved, without regard to the time of enjoyment, and without any deduction of the payment of the annuity. (6) Where an annuity creditor (1) Ex parte Whitehead, 19 Ves. 557. 2 Rose, 358. 1 Meriv. 10. 127.; and see 1 Atk. 251. (2) Ex parte Webb, 2 G. & J. 29. applied to prove, and was (3) Ex parte Thistlewood, 1 Rose, (5) Ex parte Fisher, 2 G. & J. 102. Where annuity void under the annuity act, grantee may prove balance of Annuities. refused, on the old principle, that the bond was not then forfeited but it appeared afterwards that the bond was in reality void under the provisions of the annuity act (1) – and he then petitioned to prove for the sum actually advanced Lord Loughborough dismissed the petition, saying, that as he had insisted on his security at the date of the commission, it was not the same debt. (2) But in a similar case before Lord Eldon, where the creditor had not insisted on his security, the grantee was permitted to prove the balance remaining due of the money advanced. (3) original ation. Where consider Where B. purchased an annuity of C. through the ation not agency of the bankrupts, and the consideration money was proveable. received by them, as agents for C., and placed to C.'s account, it was held, that B. could not prove the consideration paid, unless the grant of the annuity was merely colourable, and contrived by the bankrupt for the purpose of obtaining B.'s money for their own use. (4) Where annuities A deposit of deeds, as a further security for an annuity previously granted, we have seen (5), is not within the provisions of the annuity act, and such deeds, therefore, need not be registered. Where it appears that annuities have been granted by the granted by bankrupt for an inadequate consideration such as having bankrupt been bought at only five years' purchase for a good life— though the assignees may not object to the proof, yet a special sideration. meeting of the creditors should be called to decide, whether the assignees should consent or not to admit such proof. (6) for inade quate con. Annuity creditors now upon the same Annuity creditors are not compelled, any more than any other creditor, to come in under the commission, but may sue the bankrupt if they choose, and decline to prove. footing as But they cannot sue any surety for the annuity without creditors. proving; nor can they now proceed against the bankrupt (as they could formerly under a deed of covenant for securing (7) the annuity) after he has obtained his certifi other (1) 17 G. 3. c. 26. (2) Ex parte James, 5 Ves 708. (3) Ex parte Wright, 19 Ves. 255.; and see Shore v. Webb, 1 T. R. 732. Walker v. Liscarry, 6 Esp. 98. Ex parte Brockliss, Buck. 406. (4) Ex parte Shaw, 2 G. & J. 106. (5) Ante, 206. (6) Ex parte Cator, 1 Bro. 267. (7) Fletcher v. Bathurst, 7 Vin. 71. pl. 4. 4 Burr. 2446. Cottrell v. Hooke, Doug, 93. |