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1803.

O'KEEFFE v. CASEY. Feb. 11. Where a testa. THIS was a bill filed to remove testamentary guardians, mentary guardian has not and to appoint a third person guardian. It was not alleged acted, the mode of proceeding that the guardians had misconducted themselves; but that in order to have a guardi. they had declined acting. an appointed, is by petition ; it is not necessary

Lord CHANCELLOR. to file a bill. Secus, if after It was not necessary to file a bill for this purpose: where acting, he

has misconducted

a testamentary guardian has once taken the trust upon him himself. and acted as guardian, if it is sought to remove him for

misconduct, a bill must be filed; but not where he declined to act; for that is as if there had been no appointment of him as guardian. In such case you should move upon petition to appoint a guardian.(a)

(a) Vid. Ex parte Salter, 3 Bro. C. C.500.

B. from certain

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1803. EXECUTORS OF FERGUS v. GORE.

Feb, 11. This bill was filed by the plaintiff's testatrix on behalf

4. covenants

to indemnify of herself and other creditors having charges affecting the lands settled on estate of the late Earl of Arran, for payment of three se- debts, the inveral sums for which judgments had been confessed by the terest of which

B.is afterwards late Earl of Arran in 1768. On the 24th Feb. 1795, a obliged to pay : decree was pronounced, whereby it was referred to the under the covemaster to take an account of the real and personal estate nant to come “ of the late Earl of Arran, how applied, and so forth, and estate of A. for

against the also an account of what was due to the plaintiff on the she sums so

paid for interest foot of the judgments in the pleadings mentioned, and together with

interest there. “ also to take an account of the debts and incumbrances af. “ fecting the said estates, distinguishing between those which Where lands

are devised in 66 affected the settled and the unsettled estates, respectively; trust for pay. « and that all creditors should be at liberty to come in,” the statute of

, with other usual directions.

limitations runs not after death

of testator The master reported, that in 1760 the late Earl of Arran, against debts

not barred being seized of several estates in fee and of some leasehold thereby at his interests for lives, executed a settlement upon the marriage deatka. of his eldest son (the present Earl of Arran) whereby a part of these estates was settled on the present Earl for life, with remainders in the usual course of family settlements, and in this deed was contained a covenant on the part of the late Earl," that all the lands and premises thereby settled should “ be fully and clearly acquitted and discharged, and that “ the present Earl and all other persons to whom the said “ estates were by said deed limited should by him well " and sufficiently saved, kept harmless and indemnified of, “ from and against all charges and incumbrances whatso

.1803. ever, save and except three several sums of 10,0001. Executors of

each in said deed particularly mentioned.” One of these FERGUS sums was an incumbrance under a power to charge the setGORE.

tled estates reserved to the late Earl, and which he afterwards released by deed bearing date the 23d May, 1770; so that the charges to affect the settled estates were reduced to 20,000l. The late Earl of Arran, by his will made in the year 1773, devised to the defendant, Richard Gore, the principal part of his unsettled estates, and in order to perform his said covenant, the debts affecting the settled estates beyond the amount of 20,000l. were by his said will charged on the unsettled estates devised to the defendant Richard Gore. The master further reported, that by a private act of parliament passed in the 24th Geo. 3, the settled and unsettled estates were vested in trustees upon trust by sale or mortgage thereof to raise money sufficient for payment of the debts respectively affecting them. The trustees never took any steps for carrying the trusts of this act of parliament into execution, nor did the defendant, R. Gore, to whom the unsettled estates were devised charged with the debts as aforesaid, take any steps for discharging them. The report further stated that the present Earl of Ar. ran, since the death of his father, and previous to the passing of the private act of parliament, had been, by law proceedings taken against the settled estates, compelled to pay on account of the interest of the debts of the late Earl of Arran, the several sums mentioned in the schedule annexed to the report ; which debts and interest ought to have been paid by the defendant, Richard Gore, out of the estates derised to him by the late Earl of Arran ; and that there was due to

the defendant the present Earl of Arran on that account the Special point. principal sum of £3,047: 7: 8 1-2. And in case the court

should be of opinion that the said defendant was entitled to interest on the several sums which he was so compelled to pay

V.

from the times the same were respectively paid, then he re- 1803. ported a further sum to be due. The master also report- Executors of ed the plaintiff's debts to be due ; to which there was

FERGUS an exception taken; for that there did not appear before the

GORE. master any evidence to shew that there was any money paid on the foot of said judgments for upwards of twenty years Exception of

the statute of last past, nor that any effectual proceedings had been taken limitations to on the foot thereof within that period of time, and that plaintiff's de

mand. therefore they were to be taken as bound by the statute of limitations,(a) and ought not to have been reported as liens on the defendant's estates.

The cause now came on upon

the report and exception: Upon the special point, the Lord CHANCELLOR held that the defendant, the present Earl of Arran, had a right to claim under the covenant of indemnity whatever a jury would give in the shape of damages in case of an action being brought on the covenant ; and that would be the amount of the sums he was compelled to pay with interest since pay. ment.

Upon the exception was cited Blakeway v. Earl of Strafford(6) 2 Eq. Ab. 579.(c)

Lord CHANCELLOR.

I doubt if ever there was such a determination as is reported in that case: it does not amount to a decision. A devise in trust for payment of debts does not prevent the

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(a) 8. Geo. 1. c.4.

(b) A very material fact is omitted in the report of this case in 2 Eq. Abr. and in Select Cases in Chancery, viz. that within five years of the testator's death, he paid part of the debt, so that in fact it was not within the statute at the time of making his will. Vid. % P. Wm8. 373.

(c) Vid. 1 Salk. 154, Anonymous, and the cases collected in a note to last edit.

1803.

Executors of
FERGUS

. GORE.

setting up the statute if it had run before the death of the testator; for if the statute has run in the life time of the testator the debts are presumed to be paid. But where a provision is made by will for payment of debts, the statute does not run after the death of the testator: it is an acknowledgment of the debt. It would be mischievous to hold that the statute extended to this case where there is another provision made for judgment creditors ; here is a general charge in this will for payment of debts. The statute had not run before the death of the testator ; and it never runs after against a debt which it had not run against before, or against which there is no presumption of payment in the life of the testator. The judgments, here were obtained in 1768, and the will was made in 1773. At law you had the advantage of the statute because the proceeding was on the judgment only ; but in this court it is upon the trust; and I never will hold that because the trustee neglects to do his duty, the creditors who have a right to have the trusts of the will carried into execution shall be barred.

Reg. Lib. xlviii. 498. “ Rule the special point in favour of “ the defendant Lord Arran—and accordingly declare “ said defendant entitled to the interest therein mentioned, “ and declare said defendant entitled to stand in the place of “ the judgment creditors whose debts he has been forced to “ discharge so far as the penalties of the several judgments

assigned to his trustee extend ; and as to the said de“ fendant's interest and costs in this cause declare him en" titled to come in after the creditors in this cause, and let

the register calculate interest as usual in sums reported, " and decrece the same charges on the said premises, with “ the usual order for a sale in default of payment."

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