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two-thirds of the surplus to be laid out at interest for the benefit of the infant daughter. The daugh. ter attained her majority in 1719, and in the following year married the plaintiff, Lord Pomfret. The decree of 1712 not having [*]been carried into effect, a bill was filed, in 1746, to compel the execution of the trust for raising the 20,0001., and to obtain payment of Lady Pomfret's distributive share. To this demand the defendant, who claimed under Lady Windsor, objected (inter alia) the length of time. But Lord Hardwicke, who considered the claim of Lady Pomfret in the light of a portion, after noticing that the decree of 1712 had been culpably disregarded by the trustees,—that Lord Windsor (the defendant's father), who stood in loco parentis to Lady Pomfret, by not forwarding the execution of the decree, had very blamably neglected her interest to the promotion of his own,—that Lady Pomfret's rights were not disclosed to her on coming of age, as they ought to have been,—and that the defendant had admitted a balance to remain due to Lady Pomfret,-declared it his opinion, that the length of time was sufficiently accounted for by these circumstances, and that, if it were a case which fell within the statute of limitations, they would be enough to take it out of that statute.
III. With regard to Legacies which for a great length of time have been unacknowledged by the executor and unclaimed by the legatee, the general rule is that payment shall be presumed. (1)
(1) Arden v Arden, 1 Johns. Ch. 313. Kane v. Bloodgood, 7 Johns. Ch. 90. Winstanley v. Savage, 2 M.Cord, Ch. 437.
But the application of this rule may be prevented by particular circumstances. In some cases, a postponement necessarily takes place in the payment of legacies, from the difficulty of ascertaining the amount of the testator's debts. The same consequence follows, in [*]others, from impediments to the getting in of the personal estate. Such facts may therefore be adduced to meet the presumptive discharge. But as, in general, legacies become due at the end of twelve months from the testator's death, on the idea that a sufficient opportunity has been then afforded for collecting the personal estate and discharging the debts, the neglect of a legatee will be dated from that period : so that should twenty years thence elapse before steps are taken to enforce the demand, the court, as it seems on the common principle, will hold this delay to be primâ facie evidence of payment(a). And the laches of the legatee will not be excused, though some of the debts of the testator still remain undischarged; for it is no proof, as Lord Commissioner Eyre remarked, because one man has forborne to prosecute his claim, that another has done so too(6),
Where legacies are claimed at a great distance of time after they become due, the onus probandi that payment has not been made, lies with the legatees. To get over the delay, they must, as a general rule, adduce in proof such circumstances, as satisfactorily evince their previous conduct not to constitute what is
(a) Cusse v. Ash, Finch, 316; berville, 2 Ves. Jun. 11 ; 4 Bro. Fotherby v. Hartridge, 2 Vern. C. C. 115, S. C. See also per 21 ; Lewis v. Lord Teynham, 2 Lord Alvanley, 2 Ves. jun. 280. Ves. jun. 13, cited ; Jones v. Tur (6) 2 Ves. jun. 14.
technically denominated laches. (1) The only exception to this rule is, when in answer to a bill for
payment of a legacy, the executor admits that it has not been discharged; for then, it seems, the plaintiff is not obliged [*]to produce other testimony in support of his claim. Nor is it important in such case, that the admission of the executor should be direct; an implied admission will be equally efficacious. Accordingly, where to a bill for a legacy the executor pleaded the statute of limitations in bar, that plea was adjudged to let in the right of the legatee, as the executor by his office was simply a trustee, and the plea did not deny the substantial justice of the demand(a).
IV. By a rule of equity, vendors who do not receive the whole of their purchase money, have a lien on the estate sold for such part of it as remains unpaid ; which lien is neither discharged by a receipt for the entire consideration indorsed on the deed of conveyance, nor by accepting such a collateral security as affects only the person of the purchaser,-as a covenant, bond, or note. To exonerate the estate from this equitable charge, the intention of the parties must be expressly stated, or necessarily implied, or a security must be given on other property for the sum unpaid(2).
(a) Parker v. Ash, 1 Vern. 256. 20; and Higgins v. Crawfurd, 2 See also Anon. 2 Freem. 22, ca. Ves. jun. 571.
(1) McCullough v. Montgomery, 7 Serg. & R. 7.
(2) Bayley v. Greenleaf, 7 Wheat. 46. 50. Carmichael v. Abraham, 1 Dessaus. 114. Brown v. Gilman, 4 Wheat. 255. 290. Fra
The lien in question is available not only against the purchaser himself, but against his heir and all persons claiming under him as volunteers, and also against assignees under a commission of bankrupt, and creditors entitled under a conveyance for payment for debts. Purchasers for valuable consideration, and without notice, do not fall within the same rule; but their protection [*]against the lien depends entirely on the fact of their being ignorant of its existence at the time of purchasing, for if before the sale is completed they have notice that the whole or any part of the purchase money was not paid to the previous vendor, the lien will continue upon the estate in the hands of such purchasers. The protection afforded to purchasers without notice, it may
be observed, extends to claimants of every description under them, as well those who have, as those who have not, received notice of the previous unsatisfied claim(a) (1).
(a) See on this subject generally, Sugden on Purchases, C. XII.'.
zier v. Carter, 1 M'Cord, Ch. 276. 1 Mason, 212. Hatcher v. Hatcher, 1 Rand. 53. Garson v. Green, 1 Johns. Ch. 303. Wilson v. Graham, 5 Munf. 247. Duval v. Bibb, 4 H. & M. 113. Tayloe V. Adams, Gil. 329. Stouffers v. C, 1 Yea. 393. Wray v. Comptroller General, 2 Dessaus, 509. Francis v. Haslerig, Hard. 48. White v. Casanove, i Har. & Johns. 106. Cox v. Fenwick, 3 Bibb, 103. Kennedy v. Woolfolk, 3 Hay. 197. Griffith v. Depew, 3 Marsh. 179. and see Irvine v. Campbell, 6 Binn. 118. Kanfelt v. Baver, 7 Serg. & R. 577. Tomkins v. Mitchell, 2 Rand. 428. Wil cox v. Calloway, 1 Wash. 38. Cole v. Scott, 2 Wash. 141. Graves v. M'Caul, 1 Call. 114. Duval v. Bibb, 4 H. & M. 113.
(1) Bayley v. Greenleaf, Wheat. 46. 50. Cole v. Scott, 2 Wash. 141. Frazier v. Carter, 1 Mc Cord, 276. Semple v. Bird, 7 Serg. & Rawle, 268.
One of the ordinary means by which purchasers are affected with implied notice of the existence of a lien, is the want of a memorandum acknowledging the receipt of the consideration money of a former purchase indorsed on the instrument of conveyance. It must not be understood, however, that such indorsement is always requisite as proof of payment; for where the deed contains a distinct substantive recital of that fact, as the additional acknowledgment is rarely, if ever, then given, the recital in such instances is regarded primarily as conclusive of the truth of the statement(1). The cases to which the principle applies, are where payment of the consideration is merely mentioned in general terms, and in the common form, as taking place at the time of the execution of the conveyance, when the receipt follows in the deed as a matter of course : the universal practice in these cases being to [*]sign an independent acknowledgment on the back of the deed, the courts hold the omission of such indorsement a circumstance sufficient to put a subsequent purchaser upon inquiry, and therefore to give him implied notice, if the money be in fact unpaid(2).
(1) Steele v. Adams, 1 Greenl. 1. Dixon v. Swiggett, 1 Har. & J. 252. Brocket v. Foscue, Ruffin, 54. Whitbeck v. Whitbeck, 9 Cowen Rep. 266.
(2) Wilkinson v. Scott, 17 Mass. 249. Shepherd -v. Little, 14 Johns. 210. Bowen v. Bell, 20 Johns. 338. Hamilton v. M'Guin, 3 Serg. & Rawle, 355. Jordan v. Cooper, 3 Serg. & Rawle, 564. Wigley v, Weir, 7 Serg. & Rawle, 309. 1 Hay. 70. Thallimer v. Brinkerhoff, 6 Cowen, 102. Jackson v. M.Chesney, 7 Cowen, 360. Higdon et ux. v. Thomas, 1 Har. & Gill. 139.