case mead versus Lord orrery and other July question Wilson v more my king SC  cite Ves three executor join in assign a mortgage of their testator as a  security for the receivership of one of they as the act which be do in this  case appear to be the transaction of all the executor and two not interest and  no colour of fraud but a purchase for a valuable consideration there be not  sufficient ground to set aside this assignment of a mortgage belong to I m the  testator in bonny v Ridgard cite bro Charles Rep bro Charles Rep the master of  the roll be of opinion that the rule be carry too far in mead v Lord orrery  for though it be clear that a executor may dispose of asset and any body  purchase of he be not bind to see to the application of the money yet this  shall never protect any body who purchase from a executor with a full  knowledge that the money be to be misapply and that mortgage a leasehold  property of the testator do not seem to be the natural way of deal with asset  and be in itself a very suspicious circumstance see the case cite in the note  to nugent v Giffard atk the plaintiff two of the child of John mead the elder  of London banker charge by their bill that he have a mortgage of three  thousand five hundred pound on the estate of William Kirkby and that be so  entitle about the that of April die leave jane his widow and five child that  by his will he appoint his wife his old son John mead and another person  executor and thereby devise to his executor and their heir all his real and  personal estate not by his will otherwise dispose of in trust that they shall  by charge lease or sell his estate or any of they raise money for the payment  of all his debt and what shall remain he direct to be divide into equal  proportion share and share alike between his five child and leave it to his  executor to make proper allowance for their maintenance until there shall be a  distribution make of his estate atkins that jane mead the widow and John mead  the young prove the will andafter the testator debt and legacy be pay a large  surplus remain to be divide among the five child in a cause between the  executor of foul who be partner with old mead and his executor the mortgage  deed relate to William Kirkbys estate be direct to be leave in the hand of Mr  Bennet the master in chancery till the partnership account shall be final  adjust note the decree be make in and the master make his report in till which  period it seem to have be doubtful whether the mortgage in question belong to  the representative of foul or of old mead that the defendant the executor of  the duchess of Buckingham pretend they have get a assignment of the legal  estate of the mortgage premise from John mead the young in his lifetime and  refuse to account to the plaintiff for what the have atkins er p receive out  of the say premise or to deliver up the deed and write and therefore the bill  be bring for a account and for the deed what be principal insist on by the  defendant the executor of the duchess of Buckingham be that on the that of may  John mead the young be appoint receiver of the rend and profit of all the real  and personal estate of Edmund duke of Buckinghamshire and that John mead  propose to assign this mortgage on Kirkbys estate to master Bennet as a  security for his receivership and accord by deed date the saint of December to  which jane mead and the other executor of old mead be party recite that there  be due on the mortgage and upward and that the same be the proper money of  John mead the young they convey to Thomas Bennet his heir and assign the say  mortgage and all money due thereon to hold to he his heir and assign for ever  subject to a proviso that if the say John mead shall and do once in a year  during the time he continue receiver of the rend profit c of duke Edmund real  and personal estate just account with Thomas Bennet and well and true pay the  balance of such account then atkins Thomas Bennet be to reconvey the mortgage  premise to John mead his heir executor or administrator that mead the young  die intestate without have account for what he have receive by virtue of his  receivership and great indebt to duke Edmund estate and that they as executor  of the duchess who be the executrix of duke Edmund claim the benefit of the  mortgage and security to master Bennet and insist the plaintiff have no right  to any of the money due on the mortgage I till satisfaction be make for what  be due from John mead the young on account of such receivership and though  they believe they may have see a copy of the will of John mead the elder yet  insist notwithstanding anything in that will John head the young and the other  executor have full power to assign the mortgage as aforesaid as it be not  specifical devise by the will to any particular person or to any particular  use and consequent do absolute vest in the executor Lord chancellor with  regard to what master Bennet have do I entire disapprove of go out of the  course of the court which require a security bythe receiver and two security  in a recognizance and take a assignment of a mortgage belong to the receiver  instead of it be very improper there be two question in this cause first  whether the plaintiff as residuary legatee of old John mead be entitle to be  relieve against the assignment of the mortgage and to have such account c as  be pray by their bill second or whether the executor of Edmund duke of  Buckinghamshire be entitle to retain this assignment and if entitle how far  they shall have the benefit the first question depend upon this point whether  this be a good alienation of the asset of old John mead the testator it must  be admit to be good in point of law for unless executor do it collusively it  be good there and neither creditor or legatee can call it back again the legal  estate be vest in Bennet the master in chancery but it have be insist by the  plaintiff if good in law yet not in equity atkins thus much must be admit that  as the defendant have gain the legal estate and likewise for a valuable  consideration it must be a very powerful equity to take it from they it have  be contend by the plaintiff that this mortgage be part of the personal asset  of old John mead and a trust for the residuary legatee and that the party have  notice at the time the assignment be make to Bennet of the plaintiff right and  therefore can avail themselves of it under such circumstance now to be sure  notice in a court of equity be extreme material for if a person will purchase  with notice of another right his give a consideration will not avail he for he  throw away his money voluntary and of his own free will sander v Dehew vern  the case of notice cite by the plaintiff counsel be very material as to the  general rule but not so material as to the particular case of a executor for  whoever take any thing from a executor must do it always with notice of a will  and if this doctrine be to prevail of notice to a assignee of a executor it  will extend to any case of a will and no body will dare to purchase or take a  assignment from a executor therefore the bare point of notice of the will be  not sufficient atkins er p this be the first attempt that have be make by a  residuary legatee to overturn a assignment by a executor of the asset of his  testator the precedent of follow asset into the hand of purchaser as assignee  have be chief in the case of creditor now creditor have a demand against a  executor for the whole asset of the testator after the account be make up but  not by way of specific lie on the asset there have be some instance too of  specific legatee follow asset for he have a specific lie upon the asset for  that specific part after the executor have assent and differ from a residuary  legatee who have no demand upon any particular part but the claim of the  plaintiff depend upon a account to be take and a liquidation of the whole  which of consequence suppose a alienation or variation of asset by a executor  in order to make a satisfaction for those demand which must precede the legacy  so much in general next as to the particular point atkins it have be insist  for the plaintiff that executor be to be consider as trustee and the  assignment make by they in this light or if it be make by they as executor  only it be notam right disposition of asset and have not a tendency at all as  Mr Wilbraham express it to a due administration of asset this mortgage be  admit to be part of the personal estate of old John mead and come to he from  the partnership in his shop as a banker these be clear fact consider then how  far he have devise his estate there be three executor to the will and devise  to they and their heir c all his real and personal estate not by his will  otherwise dispose of in trust c for payment of debt and what shall remain to  be divide equal among his five child from hence it have be insist on by the  plaintiff counsel that the whole of the personal estate of old John mead in  the hand of the executor be affect by this trust I be of a different opinion  and that the manner of devise here do not alter or restrain the power of  executor over the personal estate what do this amount to more than appoint  they executor and give the surplus of this estate to be divide equal between  his child the testator as to a particular part of his personal estate may  affect it with a trust but as to the whole personal estate when he make they  executor he give they the legal right and though he do after give the residue  to be divide among his child it do not take away their power as executor it  will be most mischievous if it do it have be argue that as all the executor  join in the assignment notwithstanding one have renounce they be consider as  trustee but there be nothing in this observation for though one renounce he  never release to the other two and may have come in afterward and prove the  will for the whole vest in he and before probate the executor may dispose of  the estate Hudson v Hudson atk the plaintiff counsel have go further and  insist that take it abstract from a trust suppose they act as executor yet  they can not assign this mortgage appoint that deserve well to be consider  atkins it be undoubted a good disposition in law and h S vest the legal  interest in Bennet the master as a security for the receiver and the executor  who assign have not bare authority but the interest in the thing assign for  neither residuary or specific legatee have any interest without the assent of  executor if good it law the question be whether there be sufficient ground to  set it aside in equity so as to enable the residuary legatee to follow the  asset into the hand of the assignee it have be admit by the counsel for the  plaintiff that executor may sell part of the asset because suppose to be sell  for payment of debt and admit for the same reason they may mortgage but then  it have be insist this be a security for money that be to come into the hand  of one of the executor only the distinction be extreme nice for if he may do  as he think fit by sell or mortgage of asset how do it differ from the present  case which be a assignment by John mead in order to bring a great sum of money  into his hand and enable he to better the estate and also to carry on with  more advantage his office of executor consider the case I do not know any  instance where a assignment have be make by a executor for a valuable  consideration that this court have set it aside unless some fraud appear  between the executor and the assignee atkins er p in c run versus drake vern  the question be whether the sale of a leasehold estate to the defendant by a  executor be good to bind a unsatisfy creditor and a decree for the plaintiff  at the roll and affirm upon appeal upon search the register book for that case  it appear that it be admit by the answer that he have notice of the plaintiff  debt and upon that and the evidence in the cause Lord Cowper decree for the  plaintiff say the defendant be a party and consent to and contrive a  devastavit the next be the case of paget versus Hoskins Prec in canc I see no  ground for Mr Vernon dissatisfaction at the decree there a freeman of London  have issue two daughter devise pound apiece to they and make his wife  executrix by a estimate it appear that his personal estate be at his death  pound to pound to which the widow be entitle a her second husband in  consideration thereof settle a jointure of pound per annum afterward a loss of  pound befall the freeman estate and though the wife be dead and it be urge  that the second husband be a purchaser of her fortune yet decree that the  daughter shall have a proportionable recompense out of the pound pagett v  Hoskins atkins the case of humble versus bill all vern a have a term in the  printingoffice by will direct pound shall be raise out of the profit for his  daughter and her child and make b executor b mortgage the term decree the  daughter and her child shall redeem or be foreclose but reverse by the house  of lord bro par can bro p c and ed this differ extreme from the present case  because there be a charge upon a particular part of the estate for secure the  sum of pound and therefore it will have be go a great way to say that make a  subsequent mortgage shall prevail against a prior mortgagee and as be a charge  upon the profit of a printingoffice it may beside produce enough in time to  pay both a cage be cite of the defendant side that come before I which be  nugent versus Giffard in Tr atk upon consideration of the danger of break in  upon the power of executor I be of opinion that a purchaser there under a  assignment from a executor ought to have the benefit of it now I do not see  that this differ from the present case only I think that be rather strong a  executor assign over a mortgage term of his testator to a as a satisfaction of  a debt due to a from the executor this be a good alienation and a shall have  the benefit of it against the daughter of the testator who be creditor under a  marriage settlement but there be something here very particular that  distinguish it from all the case that have or can be cite for it be not a sole  executor dispose of the asset for his own benefit but here be three executor  assign two of they be not interest in it and the other be one of the residuary  legatee under the will here be a assignment date the saint of December make  upon John mead the youngers be appoint one of the receiver of the duke of  Buckinghamshires estate appear to be fair transact and no colour of fraud Mr  Pigot the conveyancer be the person advice with as to the manner of do it  three executor be all of they treat with and all of they join in it atkins it  be recite that whereas it be the proper money of John mead the young and also  recite that John mead c be the executor what do these recital import why that  the mortgage be the proper money of John mead the young it may be ask which  way can he acquire the sole property as he be one of the executor and in who  shop the money affair be transact he may be a creditor for this sum by money  advance by he on account of the residue or the other two executor may have  release and assign this mortgage to John mead the young as his share of the  residuary estate of old John mead and suppose he alone have assign this to  Bennet as a security for his receivership will the other residuary legatee  have be at liberty to follow it into the hand of the assignee I be of opinion  they can not for otherwise it will be say that no man can have a assignment  from executor without come into the court of chancery to have a account from  he how he have distribute the asset of his testator for notice to the assignee  of the will will have be equal the same in this case of a assignment of one  executor as now in the assignment of three to say that the assignee ought to  have look into the account of the executorship and give notice of it to the  residuary legatee be go too far for how can the assignee look into the account  for they can not possible do it without look into the whole shop account of  mead as it be mingle and confound together therefore as this appear to be the  transaction of all the executor and two of they be not interest and there be  no colour of fraud I be of opinion there be not sufficient ground to set aside  this assignment some other circumstance have be insist on by the plaintiff  counsel that there be a suit at the time of the assignment about the mortgage  who be entitle to it I do not see how that lie to hang can affect this  assignment unless it have be atkins er p determine this be the mortgage of  foul the partner of old John mead and belong to his creditor the plaintiff in  that cause atkins but as it be determine to be part of old John mead estate  there be a end of this objection a lie to hang be only a general notice of a  equity to all the world but can affect any particular person with a fraud  unless there be a special notice of the title in dispute there to that person  there be several other circumstance that do deserve to be consider on the part  of the defendant it appear that this transaction be for the benefit of the  shop that have for several year receive the rend of the estate which be a very  great advantage and therefore for the interest of the shop the estate shall be  continue there consider then the reflection that natural arise from a matter  of this kind old John mead die in his successor carry on the business account  be keep in the shop and manage as before down to the time of make the  assignment and down to the bankruptcy of William mead the uncle of the  plaintiff the testator estate appear to I to be indebt to the shop the present  plaintiff come of age in the bankruptcy of William mead be after the death of  John mead in there be no pretence that the plaintiff claim to be creditor  under the commission for any debt due to the estate of old John mead as  residuary legatee of he but the executor of the duke of Buckingham be admit  creditor for the surplus over and above what be secure to they by the  assignment of the mortgage and no objection take and the plaintiff instead of  claim it there come here in order to follow the asset into the hand of a  purchaser for a valuable consideration the bill be not file to the year a  great many year since the death of old John mead at the fill of the bill  twentyseven year and now thirtytwo after it thus much must be admit by the  plaintiff that the defendant as executor to the duke of Buckinghamshire be  entitle to what ever be the share of John mead the young as one of the  residuary legatee of old mead so that there must be a account to be take of  his share and likewise of all old John mead debt which be almost impossible to  be do atkins upon the whole I be of opinion there be no pretence to set aside  this assignment as the executor have the legal right as there be no colour of  fraud and as two of the executor who have no interest in the assignment join  which they may do and as here be a purchaser too for a valuable consideration  it ought not to be affect by a account to be take of asset in favour of  residuary legatee when a receiver have be appoint by this court and he passes  his account regular before the master accord to the course of the court the  surety be bind by ita as to the mortgagor I do not know any instance where he  keep in possession that he be liable to account for the rend and profit to the  mortgagee for the mortgagee ought to take the legal remedy to get into the  possession but as to that part of the estate which Kirkby dispossess the  mortgagee of by colluding with the tenant and prevail upon they to attorn to  he there he ought to account provide the estate be redeem by he his lordship  declare first the master ought not to have take security of John mead the  young as receiver of the rend and profit of the estate of the late duke of  Buckinghamshire by assignment of the mortgage but by recognizance with surety  accord to the course of the court and that he mention this in order to  discourage it for the future but be of opinion the defendant the executor of  Edmund duke of Buckinghamshire be entitle to the benefit thereof as to what be  due on account of the receivership of John mead direct the master to examine  and ascertain what be due from John mead the young at the time of his death  which come into and remain in his hand as receiver by virtue of the decree and  report in the former cause Reg lib b fol atkins er p at law a executor may  alien the asset of a testator and when alien no creditor can follow they and  when the alienation be for a valuable consideration this court suffer it as  well as law nugent v Gifford I Tr atk