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acquainted with the contents of the will and the ambiguity [*]of its meaning, and with that knowledge acquiesce for long time in the executor's construction of it, the acquiescence would be held evidence of a release or desertion of their claim. Nevertheless to establish this point, the acquiescence must be very considerable, amounting at least to twenty years; otherwise the presumption of a release or waiver cannot safely be depended on(a).

It is a general rule with regard to legacies to infants, that unless of very trifling amount(b), or unless an express provision in the will authorize the act(c), they shall not be paid over by the executor either to the legatees themselves or to any persons for their benefit, during the legatee's minority.

This rule, framed for the protection of infant legatees, exposes the party infringing it to be called on for payment a second time, and is in general so strictly observed, that although a legatee for many years after attaining majority, delays to pursue his claim, no presumption will be allowed in answer to it. Cases may perhaps arise, under the peculiar circumstances of which, the courts after long quiescence might be induced to presume the legatee's assent to the former payment as a satisfaction, and on that idea support the allegation of a subsequent release (1). But generally, so long as it can be clearly ascertained that re-payment has not been

(a) Newton v. Ayscough, 19 Ves. 534.

(c) Philips v. Paget, 2 Atk. 80 ; Cooper v. Thornton, 3 Bro. C. C.

(b) See 2 Atk. 81; 2 Bro. C. 96. C. 612; Bunb. 240.

(1) Hobdy v. Charles, 2 Hay. N. C. R. 180.

made, nor a release executed, the liability of the executor [*]and of his representatives continues. It has been expressly determined, that a lapse of fifteent years without claim after the infant's coming of age is no defence(a).

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X. It was said by Lord Eldon, on a late occasion(b), to be a point established by all the cases, that if cesque trust join with his trustees in an act amounting to a breach of trust, he is thereby precluded from complaint;-that he (Lord Eldon), however, went further, and agreed, that either concurrence in the act itself, or acquiescence after it without original concurrence, would equally release the obligation of the trustees. The latter branch of this position appears to have expressed his Lordship's deliberate sentiments; for as will be seen from the following case, he had before acted upon the same principle. It may be added, that from its accordance with the general rules of equity in reference to dormant claims, the doctrine was afterwards recognised and approved. of by Sir Wm. Grant(c).

Under a power in the marriage settlement of Mr. and Mrs. Brice, Mooring and Fielder, the trustees, sold part of the estate, and joined in giving a receipt for the purchase money. The purchase money was

(a) Dagley v. Tolferry, 1 P. Wms. 285. See also Philips v. Paget, 2 Atk. 80; Lee v. Brown, 4 Ves. 462.

(b) 3 Swans. 64.

(c) See Langford v. Gascoyne 11 Ves. 333, 336. In this case

one of two executors had been instrumental in placing part of the testator's effects under the sole dominion of the other executor. The latter had become bankrupt: and the object of the suit was to make the former answerable for the loss.

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received in fact by Fielder alone, and was allowed, with [*]the permission of Mr. Brice the plaintiff (who had a life-interest), to remain in Fielder's hands for ten years. Fielder dying insolvent, the plaintiff shortly after his death filed a bill against Mooring's executor, charging him as answerable for the loss sustained through his testator's default. But per Lord Eldon, "It is clear upon settled cases, that if there are two trustees, and a transaction takes place, in which the fund is taken out of the state in which it ought to have remained, and is not placed in the state in which it ought to be, but is kept in hands that ought not to retain it, if any particular cestui que trust has acted in authorizing that as much as the trustee who has not the money in his hands, and continues to permit it to be so treated,-in a question between the cestui que trust and the trustee, the latter cannot be called upon by the former. The result of the evidence here is, that with Brice's permission, the money was suffered for ten years to remain with Fielder alone, upon his personal security; if Mooring knew as much as Brice, so Brice knew as much as Mooring; and cannot, therefore, complain that this was a misapplication,-permitting it, as he has done, with respect to his own interest"(a).

But in cases where creditors are concerned, an improper application of the funds (though with their knowledge) may be charged upon the trustees after a very considerable number of years. Laches, as has been remarked in a preceding page, are not imputable to a body of creditors. So that their assent, to an [*]act, which is justifiable only on the ground of express concurrence, can never be implied from a mere

(a) Brice v. Stokes, 11 Ves. 319.

temporary forbearance on their part to call it in question. Accordingly, in the above mentioned case of Hardwick v. Mynd(a), where executors and devisees in trust to sell for payment of debts, conveyed the trust estates to a son of a devisor, and permitted him to take possession of the personal property, it was held, that they were liable to supply a deficiency in the funds occasioned by the waste of the son, notwithstanding the creditors for eleven years had received interest from him on their respective demands, and had also made an agreement with him for an increase in the rate of interest (b).

(a) 1 Anst. 109.

(b) Having already, in a former chapter, when treating on the subject of purchases by trustees, had occasion to notice the peculiar favour shown by equity to the demands of a class or body of creditors, though such demands for a very considerable time have been neglected to be followed; and the same principle having again come under consideration in the case stated in the text; it seems advisable here, in order to prevent a recurrence to the subject at a future page, to subjoin a further instance of the application of the same rule.

B. Kidney, the owner of both freehold and copyhold lands, subjected his estates generally, by his will, to the payment of his debts. The copyholds not having been surrendered to the use of the will, the heir entered into possession and sold them. Several years afterwards, and about twelve or thir

teen years from the commencement of a suit by the creditors of Kidney for the payment of their demands out of the freehold estates, it was discovered that the produce of those estates would be insufficient to discharge them. A supplemental bill was therefore filed to obtain the purchase-money of the copyholds, together with the intermediate profits. At the hearing (the principal claim it seems being admitted,) it was insisted for the defendant that the account for mesne profits ought not to be carried further back than the filing of the bill. But Sir William Grant said, "In Cook v. Arnham (3 P. Wms. 283; Forr. 35) an account was decreed only from the date of the will, upon the ground that the younger son was guilty of great laches in not having asserted his claim for fourteen years. But it is difficult to apply that doctrine to creditors who have no specifie

[*]XI. By a rule of equity, purchasers of trust estates directed to be sold, (1) where the purchase money is

right or interest in the estate, but have only a right to have their debts paid, and the estate applied so far as is necessary for that purpose. These creditors might not know, until the account was taken, that it was necessary to make any claim to these copyhold estates; and it was uncertain whether they were to be applied until the freehold estates should have been exhausted. Laches, therefore, is not to be imputed to them, as to a specific devisee, for not having sooner asserted their claim. The claim is made, when they find it necessary for the satisfaction of their demands. Kidney v. Coussmaker, 12 Ves. 136, 158.

The rule apparently deducible from this case is, that the neglect of creditors (unless extreme) whose debts are secured by a testamentary charge on the real estate of the debtor, will not affect the validity of their claim on such estate while it continues in the hands of the heir or devisee, nor if sold, their right to payment out of the purchase money. But the application of this rule, at least where

the delay is considerable, has its limits. It will not be allowed to operate to the prejudice of purchasers. So that where an interval of several years occurs between the sale and the time of the creditor's claim being preferred, and the heir of the testator or devisee is then unable to repay the consideration money, the purchaser, in such cases, cannot be resorted to for the deficiency.

Thus where a testator devised all his real and personal estate (charged with the payment of his debts) to one Godwin, and appointed him executor; and Godwin, not long after the testator's death, sold parts of the estate to several persons, and amongst others to the defendant; it was held by the Master of the Rolls, that a bill brought by the bond creditors of the testator sixteen years after his death (on Godwin's becoming bankrupt) insisting that the purchaser took the estate subject to their demands, was not sustainable. And His Honour said, that where creditors have so easy a remedy as to bring a bill against

(1) Smith v. Daniel, 2 M Cord, Ch. 149. Champion v. Brown, 6 Johns. Ch. 398–403. Murray v. Ballou, 1 Johns. Ch. 566. Murray v. Finister, 2 Johns. Ch. 155. Denning v. Smith, 3 Johns. Ch. 345. Demarest v. Wyncoop, 3 Johns. Ch. 147. Green v. Slayter, 4 Johns. Ch. 38. Murray v. Silburne, 2 Johns. Ch. 441.

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