BHO

William and Mary, 1691: An Act for Relief of Creditors against Fraudulent Devises [Chapter XIV. Rot. Parl. pt. 2. nu. 2.]

Pages 320-321

Statutes of the Realm: Volume 6, 1685-94. Originally published by Great Britain Record Commission, s.l, 1819.

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Citation:

In this section

Reasons for passing this Act.

Wills fraudulent against Creditors.

Whereas it is not reasonable or just that by the practice or contrivance of any Debtors their Creditors should be defrauded of their just Debts And neverthelesse it hath often so happened that where several persons having by Bonds or other Specialties bound themselves and their Heires and have afterwards died seized in Fee-simple of and in Manours Messuages Lands Tenements and Hereditaments or had Power or Authority to dispose of or charge the same by their Wills or Testaments have (to the defrauding of such their Creditors by their last Will or Testaments) devised the same or disposed thereof in such manner as such Creditors have lost their said Debts. For remedying of which and for the maintenance of just and upright Dealing Be it Enacted and declared by the King and Queens most Excellent Majesties by and with the advice and consent of the Lords Spiritual and Temporal and Co[m]mons in this present Parliament assembled and by authority of the same That all Wills and Testament Limitations Dispositions or Appointments of or concerning any Manours Messuages Lands Tenements or Hereditaments or of any Rent Profit Terme or Charge out of the same whereof any person or persons at the time of his her or their decease shall be seized in Fee-simple in Possession Reversion or Remainder or have power to dispose of the same by his her or their last Wills or Testaments to be made after the Five and twentieth day of March in the yeare of our Lord God One thousand six hundred ninety and two shall be deemed and taken (onely as against such Creditor or Creditors as aforesaid his her and their Heires Successors Executors Administrators and Assigns and every of them) to be fraudulent & clerely absolutely and utterly void frustate and of none effect (any pretence colour feigned or presumed Consideration or any other matter or thing to the contrary notwithstanding.

II. Debt upon a Bond jointly suable against the Heir and Devisee of an Obligor.

Devisee chargeable for a false Plea as an Heir.

And for the means that such Creditors may be enabled to recover their said Debts Be it further Enacted by the authority aforesaid That in the Cases before mentioned every such Creditor shall and may have and maintaine his her and their Action and Actions of Debt upon his her and their said Bonds and Specialties against the Heire and Heires att Law of such Obligor or Obligors and such Devisee and Devisees joyntly by virtue of this Act; [And such Devisee or Devisees shall be liable and chargeable for a false Plea by him or them pleaded in the same manner as any Heire should have been for any false Plea by him pleaded or for not confessing the Lands or Tenements to him descended. (fn. 1) ]

III. Proviso for Devise for raising Portions pursuant to a Marriage Contract.

Provided always and be it Enacted by the authority aforesaid That where there hath been or shall be any Limitac[i]on or Appointment Devise or Disposition of or concerning any Mannours Messuages Lands Temements or Hereditaments for the raiseing or payment of any real and just Debt or Debts or any Portion or Portions Sum or Sums of Money for any Child or Children of any person other than the Heir att Law according to or in pursuance of any Marriage Contract or Agreement in Writeing bona fide made before such Marriage the same and every of them shall be in full force. And the same Manours Messuages Lands Tenements and Hereditaments shall and may be holden and enjoyed by every such person or persons his her and their Heirs Executors Administrators and Assignes for whom the said Limitation Appointment Devise or Disposition was made and by his her and their Trustee or Trustees his her and their Heirs Executors Administrators and Assignes for such Estate or Interest as shall be so limitted or appointed devised or [deposed (fn. 2) ] until such Debt or Debts Portion or Portions shall be raised paid and satisfied Any thing in this Act contained to the contrary notwithstanding.

IV. Heir aliening before Action brought, liable to the Value of the Land.

Creditors preferred as in Actions against Executors.

[And whereas several Persons being Heirs att Law to avoid the Payment of such just Debts as in regard of the Lands Tenements and Hereditaments descending to them they have by law been liable to pay have sold aliened or made over such Lands Tenements or Hereditaments before any Processe was or could be issued out against them Be it further enacted by the authority aforesaid That in all cases where any Heire att Law shall be liable to pay the Debt of his Ancestor in regard of any Lands Tenements or Hereditaments descending to him and shall sell alien or make over the same before any Action brought or Processe sued out against him that such Heir att Law shall be answerable for such Debt or Debts in an Action or Actions of Debt to the value of the said Land so by him sold aliened or made over in which cases all Creditors shall be preferred as in Actions against Executors and Administrators and such [Executions (fn. 3) ] shall be taken out upon any Judgment or Judgments so obtained against such Heire to the value of the said Land as if the same were his owne proper Debt or Debts saving that the Lands Tenements and Hereditaments (bona fide) aliened before the Action brought shall not be liable to such Execution.

V. Upon Riens per Descent pleaded, Jury to inquire of the Value of the Lands; otherwise, if Judgment by Confession, for Debt and Damages.

Provided always and be it further enacted by the authority aforesaid That where any Action of Debt upon any specialtie is brought against any Heir he may plead Riens per Discent att the time of the Original Writ brought or the Bill filed against him any thing herein contained to the contrary notwithstanding and the Plaintiffe in such Action may reply that he had Lands Tenements or Hereditaments from his Ancestor before the Original Writ brought or Bill filed and if upon Issue joyned thereupon it be found for the Plaintiffe the Jury shall enquire of the value of the Lands Tenements or Hereditaments so descended and thereupon Judgment shall be given and Execution shall be awarded as aforesaid but if Judgment be given against such Heir by Confession of the Action without confessing the Assets descended or upon Demurrer or Nihil dicit it shall be for the Debt and Damages without any Writ to enquire of the Lands Tenements or Hereditaments so descended.

VI. Devisee chargeable as Heir.

Provided also and be it further enacted That all and every Devisee and Devisees made liable by this Act shall be liable and chargeable in the same manner as the Heir att Law by force of this Act notwithstanding the Lands Tenements and Hereditaments to him or them devised shall be aliened before the Action brought.

VII. Continuance of Act.

Provided always That this Act shall be in force for Three yeares and to the end of the next Session of Parliament after the Expiration of the said Three yeares and no longer. (fn. 4) ]

Footnotes

  • 1. annexed to the Original Act in a separate Schedule.
  • 2. disposed O.
  • 3. Execution O.
  • 4. annexed to the Original Act in separate Schedules.