1837-Phillipo v. Munnings.

or in the constitution of the charity, which would lead me to conclude that it was meant to be exclusively confined to the children of members of the church of England; and I should then be, in fact, excluding all others from it.

For this, there are no grounds; and as I am quite sure that, in confirming the master's report, I incur no risk of altering the management of the charity, the petition must be dismissed with costs.[1]

*Between SARAH PHILLIPO, Widow, MARTHA GOGGS, Widow, and ANN [*309] JOHNSON, Widow, Plaintiffs; and JAMES MUNNINGS, Defendant.

1637; March 16.

A suit to make an executor account for a sum of money which had been bequeathed to him by his testator upon certain trusts, and which had been severed by the executor from the testator's personal estate, and the interest of which had, for a time, been applied upon the trusts of the will, is not a suit to recover a legacy, within the meaning of the limitation act, 3 & 4 W. 4, c. 27. MATTHEW BUSCALL, of Fakenham, by his will, dated the 19th of October, 1785, amongst other bequests, gave the sum of 400l. to Edmund Buscall, upon trust to place the same out at interest upon real or government securi

[1] In regard to the subject of charities and charitable uses, "which seems to be one of increasing importance," (M' Coun, V. C. 3 Edw. Ch. Rep. 86,) the following references may be found useful. As to what is a charitable use, The Attorney General v. Master &c. of Haberdashers Company, 1 Myl. & K. 420. Of the jurisdiction of the court in relation to, Ommaney v. Butcher, Turn. & Russ. 260; The Attorney General v. Master &c. of Haberdashers Company, ubi sup. The Same v. Caius College, 2 Keen, 150; The Baptist Association v. Hart's Executors, 4 Wheat. 1; Beatty v. Kurtz, 2 Peters, 584; Inglis v. Trustees of The Sailors Snug Harbor, 3 Peters, 113; Potter v. Chapin, 6 Paige, 639; King v. Woodhull, 3 Edw. Ch. Rep. 79; Amer. Ch. Dig. Charities, II; The Attorney General v. Crook, 1 Keen, 121. When devise or bequest to is valid, Harpending v. Dutch Church of the city of New York, 16 Peters, 455; Coggeshall v. Pelton, 7 Johns. Ch. Rep. 292; Baker v. Sutton, 1 Keen, 224; Lawless v. Shaw, Lloyd & G. 228; Wright v. Trustees of Methodist Episcopal Church, 1 Hoff. Rep. 202 and see, Attorney General v. Catharine Hall, Jac. 381. When void under statutes against mortmain, The Attorney General v. Mill, 3 Russ. 328; The Trustees of the British Museum v. White, 2 Sim. & Stu. 594; Baker v. Sutton, ubi sup. Vague or indefinite, The Baptist Association v. Hart's Executors; Ommaney v. Butcher; King v. Woodhull, ubi sup; Amer. Ch. Dig. Charities II. To secure prayers for the souls of the dead, The Attorney General v. The Fishmongers Company, 2 Beav. 151. Who take in case of failure, King v. Strong, 9 Paige, 94; The Attorney General v. The Fishmongers Company, ubi sup. Who entitled to surplus and increased income, Jordeyn's Charity, 1 Myl. & K. 416; S. C. 5 Sim. 571; The Attorney General v. Wilson, 3 Myl. & K. 362; The same v. The Master &c. of the Skinners Company, 5 Sim. 596; The same v. The Coopers Company, 3 Beav. 29. As to sale of charity lands, The Attorney General v. Buller, Jac. 407; The same v. Brettingham, 3 Beav. 91. Division of, The Attorney General v. Buller; Potter v. Chapin, ubi sup. Leases of, The Attorney General v. Wray, Jac. 307; The same v. Lord Hotham, Turn. & Russ. 209; S. C. 3 Russ. 415; The same v. Kerr, 2 Beav. 420; The same v. Crook, 1 Keen, 121. Exchange of, Attorney General v. Cullum, 1 Keen, 104. The court is lenient towards trustees who have acted in good faith, The Attorney General v. Caius College, ubi sup. Duty of attorney general in relation to charities; The Attorney General v. Brettingham, ubi sup. As to costs on dismissing information; see Attorney General v. Cullum, ubi sup. Relator must be a responsible person, Fellows v. Barrett, 1 Keen, 120.

1837.-Phillipo v. Munnings.

ties, and to pay the interest and dividends to the testator's sister, Sarah Buscall for her life; and after her decease, to pay and apply the interest and dividends, or so much thereof as should be necessary, for and towards the maintenance and education of John Buscall, son of Matthew Buscall, of Fransham, until he should attain his age of twenty-four years; and then in trust, in case the testator's sister should then be dead, and if not, then, on her decease, to assign, transfer, and pay the legacy of 400l. and all interest then due and unapplied as aforesaid, and the securities on which the same should be invested, to John Buscall, to and for his own use. The testator bequeathed certain legacies in trust for Philip Buscall and James Buscall, and the plaintiffs, by their names of Sarah Buscall, Martha Buscall, and Ann Buscall, therein also described as the children of Matthew Buscall of Fransham. And the testator declared that if any of them, Philip Buscall, John Buscall and James Buscall, Sarah Buscall, Martha Buscall, and Ann Buscall, should happen to die before his, her or their legacy or legacies should become payable,

then the legacy or legacies of him, her or them so dying, and all inte[310] rest, if any, then due thereon, and unapplied *for maintenance as aforesaid, should be equally divided and paid to and amongst the survivors and survivor of them, share and share alike, at such time and times as his, her, or their original legacy should become payable. And the testator appointed Edmund Buscall his executor.

Sarah Buscall died in the testator's lifetime.

The testator died on the 31st of January, 1787, leaving Philip Buscall, John Buscall, James Buscall, and the plaintiffs, and Edmund Buscall surviving; and Edmund Buscall, shortly after the testator's decease, proved the will, and possessed the testator's personal estate, and paid all the debts and legacies, other than the legacy of 400l., and set apart the sum of 400l. to answer that legacy. In the year 1799, Edmund Buscall died, having appointed the defendant, James Munnings, his executor, who proved his will.

The bill, which was filed on the 18th of August, 1834, stated that Philip Buscall died in the year 1797, and that John Buscall died in the year 1800, under the age of twenty-four years, leaving the plaintiffs, and James Buscall surviving him; and that James Buscall died in the year 1814, intestate, and without having been married, leaving the plaintiffs his only next of kin, and that they had commenced proceedings, and intended forthwith to procure letters of administration to his effects. It alleged, that the defendant had possessed himself of the 400l., or of the securities upon which that sum had been invested, and that he had refused to pay it to the plaintiffs, but intended to convert it to his own use; and it charged that he had received the interest or dividends, and had converted them to his own use. The bill prayed that it might be declared that the plaintiffs, in their own right, and as the next of kin of James Buscall,[1] in the events which had happened, were beneficially [*311] *interested in, or entitled to, the whole of the principal sum of 400l., [1] Querc, John Buscall?

1837--Phillipo v. Munnings.

or the stocks or funds or other the securities, if any, upon which the same had been invested, and also the interest and dividends accrued upon or in respect of the same; and that the same might be paid or transferred or accounted for by the defendant to the plaintiffs; and that the necessary accounts might be taken; that the defendant might be restrained, by injunction, from parting with the 4001. or the securities upon which the same had been invested; and that the sum, or such securities, and the arrears of interest and dividends received by the defendant, might be paid or transferred into the name of the accountant general, in trust in the cause.

The defendant by his answer, stated and admitted that Edmund Buscall, out of the personal estate of the testator Matthew Buscall, paid all his debts and funeral and testamentary expenses, and all the legacies given by his will, except the legacy of 400l., and thereout set apart the sum of 400l. given, in trust, for the purposes before mentioned, and invested the same on mortgage, at 5 per cent. The defendant then stated, that the sum of 400l., so invested, remained upon that security until about two years after the decease of Edmund Buscall, when the mortgage was paid off; and that the defendant then invested the mortgage money, in his own name, in the purchase of the sum of 4107. navy five per cent. annuities; and that in the year 1813 or 1814, the defendant sold out that stock, and did not afterwards invest the produce, but retained it in his own hands. The defendant admitted that he received the interest on the mortgage, and the dividends on the sum of stock; he stated that certain payments had been made, by Edmund Buscall and by himself, to a brother of John Buscall, on his behalf, on account of the interest of the 400l., the last of which payments was made on the *1st [*312] of March, 1801, and of which 167. had been paid by Edmund Buscall and 401. by himself; and that the dividends or interest received by him, (the defendant,) amounted to 2461.; or thereabouts, and that, under the circumstances before mentioned, he had converted and applied only such part of such dividends or interest to his own use, as had not been paid over by him as thereinbefore stated. The defendant also stated that he believed it was a fact, that John Buscall had never been heard of since the year 1800, except as having died at or about that time; and the defendant admitted that he had never heard of him since that time. The defendant stated that he had not been able to ascertain whether John Buscall attained the age of twenty-four years; but that he had been informed and believed that Philip Buscall died in the lifetime of John Buscall, and about the year 1797, and that John Buscall left James Buscall and the plaintiffs surviving him. The defendant, by his answer, also claimed, in bar of the suit, the same benefit of the statute of limitations, and of the laches of the plaintiffs, in putting their claim in suit, as if he had pleaded the same in bar to the bill.

The plaintiffs, after the filing of the original bill, procured letters of administration to John Buscall and to James Buscall; and, by supplemental bill, they stated these administrations, and insisted that all difficulty as to the time

1837.--Phillipo v. Munnings.

of the death of John Buscall was removed by their obtaining administration to him.

Affidavits were subsequently made, which tended to prove that John Buscall died in the month of January, 1800, under the age of twenty-four; and which showed that dividends to the amount of 3921. 3s. 2d., would have accrued, between the year 1814 and the present time, upon the stock which [*313] had been sold out and upon *the other stocks into which, if not so sold, it would have been converted.

The Vice-Chancellor, upon motion, supported by these affidavits, ordered that the defendant should transfer into the name of the accountant general, in trust in the cause, 430l. 10s. new 3 per cent. annuities, being the amount which the sum of 4107. navy 5 per cent. annuities, admitted by the defendant's answer to have been sold out by him in the year 1813 or 1814, would have produced if the same had not been sold out by him, and had been standing in his name in the books of the bank on the conversion of navy 5 per cent. annuities into 4 per cent. annuities, and the subsequent conversion of the last mentioned annuities into new 3 per cent. annnities; and that the defendant should pay into the bank, with the privity of the accountant general, to the credit of the cause, the sum of 5981. 3s. 2d. cash,(a) subject to the further order of the court.

The defendant now moved that the Vice-Chancellor's order might be discharged.

Mr. Wigram and Mr. Rogers, in support of the motion :-The fortieth section of the recent statute of linfitations(b) is a complete bar to the [*314] plaintiffs' demand in this suit. It will be argued for the plaintiffs,

that this is not a suit for a legacy, but a suit to make the defendant answerable, as a trustee. That argument, however, goes too far; for every executor is a trustee, and every suit for a legacy is a suit to compel the performance of a trust; and, if the argument were to prevail, the consequence

(a) This amount was produced by adding the before mentioned sum of 3921. 3s. 2d. to the sum of 2061., which last was the amount admitted to have been received by the defendant for dividends or interest, after deducting therefrom the sums which he alleged that he had paid on account of John Buscall.

of

(b) 3 & 4. W. 4. c. 27. This act is intituled, "an act for the limitation of actions and suits relating to real property; and for simplifying the remedies for trying the rights thereto." The fortieth section is in the following words :-" And be it further enacted, that after the said 31st day of December, 1833, no action or suit, or other proceeding, shall be brought to recover any sum money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the mean time, some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto or his agent; and in such case, no such action or suit or proceeding shall be brought but within twenty years after such payment or acknowledgment, or the last of such pay. ments or acknowledgments, if more than one was given."

1837.-Phillipo v. Munnings.

would be, that there would be no case to which this part of the statute could apply, and the express provision which the legislature has made, would be entirely inoperative. Murray v. The East India Company.(a)

The LORD CHANCELLOR :-[without calling on Mr. Wakefield and Mr. Goodeve, who were counsel on the other side]:

A man, who, being in possession of a fund which he knows to be not his own, thinks proper to sell it and apply the produce to his own use, certainly does not come before the court under circumstances which entitle him to much indulgence; and the only question is, whether, by the statute which has been referred to, I am prohibited from entertaining this suit to make him responsible for that breach of trust. The whole *fallacy of the [*315] defendant's argument consists in treating this suit as a suit for a legacy. Now, the fund ceased to bear the character of a legacy, as soon as it assumed the character of a trust fund. Suppose the fund had been given by the will to any body else, as a trustee, and not to the executor; it would then be clearly the case of a breach of trust. In this case, the executor, when he severed the legacy from the general personal estate, could not pay it over to any other person; he was bound by the direction of the testator to hold it upon certain trusts until the legatee attained twenty-four. What he would have done by paying it to a trustee, he has done, by severing it from the testator's property, and appropriating it to the particular purpose pointed out by the will.

It is impossible to consider that the executor, so acting, is acting as an executor: he has all this while been acting as a trustee.

This suit must be considered, not as a suit for a legacy, but as a suit to compel a party to account for a breach of trust; and it is clear, therefore, that it is not within the terms of the act in question.

(a) 5 B. & Ald. 204.

Motion refused with costs.(b)

(b) There is room, perhaps, for considerable doubt, whether the act above referred to extends to any legacies which are not charged upon land. The title of the act relates solely to land; and so, apparently, do all its provisions, except the words in the fortieth section above cited, with respect to the recovery of legacies, and similar words in the forty-second section, with respect to the recovery of interest upon legacies, and a declaration in the forty-third section that no person claiming any tithes, legacy, or other property, which might be recovered at law or in equity, shall have a longer time to recover the same in any spiritual court than he has at law or in equity.

See some observations upon the scope of the act, in Paget v. Foley, 2 Bing. N. S. 679. [But Shadwell, V. C., held that the act applies equally to a legacy payable out of personal estate only. Shepard v. Duke, 9 Sim. 567. Debts charged upon, or payable out of land, are within the statute; and where an estate is devised to a trustee in trust to sell, and pay the testator's debts, and subject thereto in trust for A., an acknowledgment of a debt, in writing, signed by the trustee, or his agent, is sufficient, under the statute, to preserve the creditor's right of suit, for twenty years after the giving of the acknowledgment, Lord St. John v. Boughton, 9 Sim. 219.