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Naudos

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Executors of

V.

GORE.

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

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 Po

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.

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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

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

(6) 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. Wm8. 373.

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

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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.”

1803.

of testa

not en.

MAHON v. SAVAGE.

Feb. 16. I ESTATOR bequeathed to his executor the defendant Legacy to exe

cutor to be disone thousand pounds, to be distributed amongst his poor tributed “ relations, or such other objects of charity as should be

amongst the

poor relations of “ mentioned in his private instructions to his executors.” testator : A re

lation who was No such private instructions were left; and the master hav- po ing been, in 1797, directed to inquire and report who were

tor's death, but the poor relations of the testator, the cause was now set became rich

before distri. down to be heard upon this report, which specified poor re- bution. lations to the number of fifty and upwards, many of whom titled. Poor

relation dying were beyond the degree prescribed by the statute of distri- before distribubutions.

tion, his claim not transmissi

ble to his per Mr. Plunket on behalf of the personal representative of sentative.

s sonal repreMathew Lynam, contended that the report should be sent Where a per

son has a power back to the master, to insert the name of the said Lynam of distribution as a poor relation of the testator, and also to strike out the

1c 'lations, he may names of such persons as were beyond the degree of rela- distribute

amongst all tionship required by the statute of distributions. On the poor relations first point, it appeared that Lynam had been a relation of the however re

mote : But testator within the degree, and was a poor man at the time where the of the death of the testator, but had become affluent in

in court is called

on to distri. his circumstances previous to 1797.

bute, in failure of the person

so empowered, The Lord CHANCELLOR was of opinion, this was meant

it will confine

itself to rela. as a charitable bequest, and that the objects of that charity tions within

the statute of should be the testator's own relations : That it was nothing distri inore than ascertaining a number of objects of charity who could not claim except they were such, and that this was not transmissible to representatives.(a)

or re

ns

(a) Vid. Attorney General v. Buckland, cited Ambl.71; in which . case it is said to have been decided by Lord HARDWICKE, that

1803.

MAHON

V. SAVAGE.

On the other part of the case Mr. Plunket cited Widmore v. Woodroffe, Ambl. 636; Edge v. Salisbury, Ambl. 71;

Thomas v. Hole, Talb. Gas. 151 ; Hording v. Glyn, 1 Atk. 469, to prove that relations should be confined to those within the statute of distributions.

Lord CHANCELLOR. This point was a good deal discussed in Bennet v. Honywood.(6) where the contrary was held. Thomas v. Hole, was a case of a bequest to the relations of Elizabeth Hole : such a bequest must either be void for the uncertainty, or the court must call in the aid of the statute to restrain it. The distinction taken in Harding v. Glyn is this ; where a person has a power given to him of distributing amongst relations, he may exercise his discretion by giving to any of the kindred, though not within the statute. But if there has been no distribution by the person having the power, but it is to be left to the decision of the court what relations shall take, the persons entitled must be of kin within the statute, for the court must have some criterion to go by, and the statute is a good rule for that purpose, and the only guide the court can have; and I am sure there was a case to that effect before Lord

where a bequest is to relations, it is to be confined to the next of kin; but where it is to poor relations, the construction has been more large and extended to those who were of kin and objects of charity. In Bennet v. Honywood, Ambl. 708 ; a share was given to a representative; but that was a bequest to all relations not worth above 2,0001. who should claim within two years after the testator's death, and the persons to whose representatives a share was given, had claimed within the two years, and appeared enti. tled within the terms of the bequest : the order tom for payment to one of these persons was actually made.

(6) Ambl. 708.

MANSFIELD.(a.) Here the testator's design was to give to them as objects of charity and not merely as relations, and I take it the executors have a discretionary power of distribution, and need not include all the testator's poor relations.

MAHON

V. SAVAGE.

The directions as to the two points made on the report were, “ that the master should inquire and report whether “ the defendants the executors have paid any and what sum “ to Matthew Lynam deceased, in the master's report men“ tioned, as one of the poor relations of the testator, and in “ part of the said legacy of 1,000l. And if it shall appear that “ any such payment was made, let the master inquire whe" ther the said Matthew Lynam was at the time of such pay“ment a poor relation of the testator within the meaning of “ his will, and if the master shall find he was, let the execu“ tors be allowed such sums of money as the master shall find “ to have been properly so paid by them. And let the execu

(a) Sembl. Spring ex dem. Titcher v. Biles, M. 24 Geo. 3. B. R. 1 T. R. 435, 8vo. ed. note(f). In that case the testator be. queathed unto his several relations. A. B. C. &c. pecuniary lega. cies, and after some other bequests he devised the residue of his real and personal estate to his wife for life, with power for her to dispose thereof by her will, “ to and amongst such of his relations " as should be living at his decease in such shares as his wife should " think proper." The wife appointed to the lessor of the plaintiff, and one objection to the execution of the power was, that the wife could only give to a relation who would take within the degrees mentioned in the statute of distributions, and that the word “re« lations" had received this construction in Harding v. Glyn, 1 Atk. 569; and in Hands v. Hands, at the Rolls, 24 June 1782. The court held the appointment to the lessor of the plaintiff good ; that it was a discretionary power, and might be exercised in favour of any one relation, and Lord MANSFIELD in giving judgment, says, « if the wife had died without an appointment, it would have been « a trust, and would have devolved on the court, who must have “ been governed by the statute of distributions."

VOL. 1.

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