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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 (c) Philips v. Paget, 2 Atk. 80 ; Ves. 534.
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 fifteen years without claim after the infant's coming of no defence(a).
X. It was said by Lord Eldon, on a late occasion(6), to be a point established by all the cases, that if cestui que 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. one of two executors had been inWms. 285. See also Philips v. strumental in placing part of the Paget, 2 Atk. 80; Lee v. Brown, testator's effects under the sole do. 4 Ves. 462.
minion of the other executor. The (6) 3 Swans. 64.
latter had become bankrupt : and (c) See Langford v. Gascoyne the object of the suit was to make 11 Ves. 333, 336. In this case the former answerable for the loss.
received in fact by Fielder alone, and was allowed, with [*]the permission of Mr. Briee 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 re. ceived 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.
teen years from the commence(6) Having already, in a former ment of a suit by the creditors of chapter, when treating on the sub- Kidney for the payment of their ject of purchases by trustees, had demands out of the freehold estates, occasion to notice the peculiar fa- it was discovered that the produce vour shown by equity to the de- of those estates would be insuffimands of a class or body of credi- cient to discharge them. A suptors, though such demands for a plemental bill was therefore filed very considerable time have been to obtain the purchase-money of neglected to be followed ; and the the copyholds, together with the same principle having again come intermediate profits. At the hearunder consideration in the case ing (the principal claim it seems stated in the text ; it seems advis- being admitted,) it was insisted for able here, in order to prevent a re- the defendant that the account currence to the subject at a future for mesne profits ought not to be page, to subjoin a further instance carried further back than the filing of the application of the same rule. of the bill. But Sir William Grant
B. Kidney, the owner of both said, “ In Cook v. Arnham (3 P. freehold and copyhold lands, sub- Wms. 283 ; Forr. 35) an account jected his estates generally, by his was decreed only from the date of will, to the payment of his debts. the will, upon the ground that the The copyholds not having been younger son was guilty of great surrendered to the use of the will, laches in not having asserted his the heir entered into possession claim for fourteen years. But it and sold them. Several years af- is difficult to apply that doctrine terwards, and about twelve or thir- to creditors who have no specific
[*]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 the delay is considerable, has its have only a right to have their limits. It will not be allowed to opdebts paid, and the estate applied erate to the prejudice of purchasers. so far as is necessary for that So that where an interval of sevepurpose. These creditors might ral years occurs between the sale not know, until the account was and the time of the creditor's claim taken, that it was necessary to being preferred, and the heir of make
any claim to these copyhold the testator or devisee is then unestates ; and it was uncertain whe- able to repay the consideration ther they were to be applied until money, the purchaser, in such the freehold estates should have cases, cannot be resorted to for the been exhausted. Laches, there- deficiency. fore, is not to be imputed to them,
Thus where a testator devised as to a specific devisee, for not all his real and personal estate having sooner asserted their claim. (charged with the payment of his The claim is made, when they find debts) to one Godwin, and apit necessary for the satisfaction of pointed him executor; and Godtheir demands. Kidney v. Couss- win, not long after the testator's maker, 12 Ves. 136, 153.
death, sold parts of the estate to The rule apparently deducible several persons, and amongst from this case is, that the neglect others to the defendant; it was of creditors (unless extreme) whose held by the Master of the Rolls, debts are secured by a testamen- that a bill brought by the bond tary charge on the real estate of creditors of the testator sixteen the debtor, will not affect the va- years after his death (on Godwin's lidity of their claim on such estate becoming bankrupt) insisting that while it continues in the hands of the purchaser took the estate subthe heir or devisee, nor if sold, ject to their demands, was their right to payment out of the sustainable. And His Honour said, purchase money. But the appli
that where creditors have so easy cation of this rule, at least where 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.