benefit, subject to any trust for, or power or interest reserved to Daniel Birkett the elder, either absolutely, or for the term of his life; and that all such conveyances and assurances, settlements, assignments, and transfers, might be declared to be frauds, as against the Respondent, Mary Wienholt, claiming under the bond, and to be subject to the agreement therein, in the same manner as if Daniel Birkett the elder had disposed of the same, or as to the real estates of the amount of the monies invested in the purchase thereof, by will; and that an account might be taken, under the decree of the Court, of his general personal estate, debts, funeral and testamentary expenses, and legacies; and that the same might be applied in a due course of administration; and that an account might be taken, in like manner, of all the real or personal estate so conveyed, settled, assigned, and transferred as therein and hereinbefore mentioned, and the rents, profits, and produce thereof, and the proceeds of the sales thereof possessed or received by the Defendants to the bill, or any or either of them, or in trust for them, or any or either of them; and that the value of the property to which the Respondent, Mary Wienholt, was entitled under the agreement, and the value of what she was entitled to under the will of Daniel Birkett the elder, might be ascertained; and in case it should appear that it was most beneficial for her to receive the share of the legacy of 6,000l., bequeathed by his will, then that the same might be paid to her; and in case it should appear to be most beneficial to her to take the benefit secured to her by the bond, then that the same might be made good to her out of the estate of Daniel 1833. LOGAN V. WIENHOLT. 1833. LOGAN v. WIENHOLT. Birkett the elder, which passed by his will, or by the several dispositions made by him in his lifetime; and that all necessary directions might be given for enabling the Respondent, Mary Wienholt, to make her election between the legacy given by such will and the benefit provided for her by such bond; and that whatever she might be ultimately entitled to might be paid to her, and for an injunction and receiver, and for the deposit of deeds in the meantime. Daniel Birkett the younger died before he had answered the bill, having made his will, and appointed the Appellant, Sarah Logan, then Sarah Birkett, his wife, and James Quilter, his executrix and executor. They proved the will, and in November, 1818, the Respondent, Mary Wienholt, exhibited a bill of revivor against them; and the suit was revived. The Appellant, Sarah Logan, then Sarah Birkett, widow, and James Quilter appeared and put in their joint and several answer to the original bill and bill of revivor, and thereby stated their belief of the marriage of John Wienholt and Sarah Jopson, that Sarah Jopson was the niece of Daniel Birkett the elder, and that Daniel Birkett the elder executed the bond, hereinbefore stated, previously to and in consideration of the marriage. They also stated their belief, that there were issue of the marriage several children; that the Respondents were two of them; that all the children of the marriage died under the age of twenty-one years, except the Respondents; that they had attained the age of twenty-one years; that John Wienholt and Sarah Wienholt his wife died in the lifetime of Daniel Birkett the elder; and that Sarah Wienholt died at or about the time in the bill mentioned. They also admitted the will and codicil of Daniel Birkett the elder, as in the bill stated, his death without having been married, — and the proof of his will and codicil by Daniel Birkett the younger. And they also thereby admitted the transfer, without consideration, by Daniel Birkett the elder, into the names of Daniel Birkett the younger, and of the Appellant, Sarah Logan, then Sarah Birkett, his wife, of two several sums of 20,000Z. navy 5 per cent. annuities, and 37,000l. 3 per cent. consolidated bank annuities; and the assignment, without consideration, by Daniel Birkett the elder to or in trust for Daniel Birkett the younger, of a bond conditioned for the payment of 16,000l. ; but they denied, to the best of their knowledge and belief, that such transfers and assignments were subject to any trust; or that any trust was declared thereof for or in favour of Daniel Birkett the elder, or that he retained any interest in or power over the bank annuities or bond debt, or that there was any agreement or understanding respecting them. The Appellant, Sarah Logan, then Sarah Birkett, widow, afterwards put in a separate answer to the amended bill, and thereby denied, to the best of her knowledge and belief, that Daniel Birkett the elder did, at any time before his death, for the fraudulent purpose of defeating or avoiding the agreement contained in the bond, or for any other purpose, deliver over to Daniel Birkett the younger, or to her then his wife, or to trustees nominally for them, any mortgages or securities for money, property, and effects, without 1833. LOGAN บ. WIENHOLT. 1833. LOGAN บ. WIENHOLT. consideration, save that he did in his lifetime deposit the bond for 16,000l. with Daniel Birkett the younger for his absolute use; and she denied, that the same was so delivered and assigned, or deposited upon any trust or understanding, either verbal or written, expressed or implied, that such bond should be subject to the disposition of Daniel Birkett the elder, or that he should have any right or interest in or control over the same; but she admitted, that it was understood or intended that he should have the interest secured or made payable by the bond during his life, after the assignment or delivery thereof to Daniel Birkett the younger; and that Daniel Birkett the younger made and executed to Daniel Birkett the elder a bond or obligation for payment to him of the amount of the interest of such bond; but she denied that, to her knowledge and belief, Daniel Birkett the elder, in his books, debited the obligors in such bond, or the persons from whom the monies were due, with the interest thereof, after the date of the assignment and delivery thereof, but she stated, that she had understood and believed that the several obligors in such bond had notice of such assignment having been made. She thereby also stated her belief, that it was the intention and understanding of the parties, and in particular of Daniel Birkett the elder, when the transfers of stock were made by him, that he should have and receive the dividends of such stocks, or funds, for his life; and she admitted, that, some time before the transfer was made, he had agreed to make such transfer to herself and her late husband, or one of them; but she denied that, to her knowledge and belief, the same was done upon the importunity of Daniel Birkett the younger; and she denied, that it was done upon her importunity: she admitted, that he agreed to make and made such transfer for the purpose of diminishing the amount of his property, which was to pass by his will, although she denied that it was to evade or defeat the agreement contained in the bond; and she denied, also, that he consented to make such transfers or any of them upon any written declaration of trust or agreement being made, or under any verbal promise, that such stock should be retransferred to him whenever he should call for the same; although she admitted, that it was understood and agreed, that the dividends of such stocks or funds should be paid to him. Afterwards the Respondent, John Birkett Wienholt, procured from his assignees, as was admitted by them, an assignment of his interest under the agreement and bond, and James Quilter died, having made his will, and appointed James Quilter the younger, Henry Sampson Quilter, and George Quilter, his executors; whereupon James Quilter the younger, and Henry Sampson Quilter alone proved the will, and a bill of revivor and supplement was exhibited against the Respondents, John Birkett Wienholt, and James Quilter, and Henry Sampson Quilter, in respect thereof, and the suit was revived. The Appellant, Sarah Logan, had, in the meantime, intermarried with Alexander Logan; and, upon her marriage, all the real and personal estate to which she was entitled under the wills of Daniel Birkett the elder and Daniel Birkett the younger, with the exception of a sum of 10,000l., agreed to 1833. LOGAN บ. WIENHOLT. |