1803.

Feb. 11.

Where a testamentary guardian has not acted, the mode

O'KEEFFE v. CASEY.

THIS was a bill filed to remove testamentary guardians,

and to appoint a third person guardian. It was not alleged 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 to file a bill. Secus, if after acting, he has misconducted himself.

Lord CHANCEllor.

It was not necessary to file a bill for this purpose: where a testamentary guardian has once taken the trust upon him 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.

EXECUTORS OF FERGUS v. GORE.

THIS bill was filed by the plaintiff's testatrix on behalf of herself and other creditors having charges affecting the estate of the late Earl of Arran, for payment of three se veral sums for which judgments had been confessed by the late Earl of Arran in 1768. On the 24th Feb. 1795, a decree was pronounced, whereby it was referred to the master to take an account of the real and personal estate "of the late Earl of Arran, how applied, and so forth, and also an account of what was due to the plaintiff on the "foot of the judgments in the pleadings mentioned, and "also to take an account of the debts and incumbrances af"fecting the said estates, distinguishing between those which "affected the settled and the unsettled estates, respectively; "and that all creditors should be at liberty to come in," with other usual directions.

The master reported, that in 1760 the late Earl of Arran, being seized of several estates in fee and of some leasehold interests for lives, executed a settlement upon the marriage 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.

Executors of
FERGUS

V.

GORE.

ever, save and except three several sums of 10,000l. “each in said deed particularly mentioned." One of these sums was an incumbrance under a power to charge the settled 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 devised 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: 81-2. 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

1803.

FERGUS

υ.

GORE.

from the times the same were respectively paid, then he reported a further sum to be due. The master also report- Executors of ed the plaintiff's debts to be due; to which there was an exception taken; for that there did not appear before the master any evidence to shew that there was any money paid on the foot of said judgments for upwards of twenty years Exception 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 detherefore 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.

report

The cause now came on upon the 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(b) 2 Eq. Ab. 579.(c)

the statute of

mand.

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

(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. 2 P. Wms. 373.

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

1803.

Executors of
FERGUS

V.

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 66 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 decreee the same charges on the said premises, with "the usual order for a sale in default of payment."