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EARSON

V.

INCH AND
OTHERS.

“ a year shall be allowed, for so long the statute of dis- 1802. “ tribution allows before the distribution be compellable, “ and so long the executor shall have, that it may ap

PEARSON, pear whether there be any debts. But where a certain " legacy is left payable at a day certain, it must be paid 6 with interest from that day.” And in Bilson v. Saunders, Select Cases in Chanc. 72, 2 Eq. Abr. 566, a legacy was left to an infant; the testator had a great deal of money in bank stock, the executor was residuary legatee, and on a bill for the legacy, the question was whether it shall bear interest and from what time, and the court of Exchequer agreed that it should only bear interest from a year after the testator's death, for as legacies are to be paid after debts, the executor has that time to inquire, till which time they are not payable, so not to bear interest.

Lord CHANCELLOR. As to the reason given for the rule mentioned in Max- Maxwell v.

Wettenhall, well v. Wettenhall, that the legacy is payable out of a fund better to which is yielding profits, I take it that makes no(a) difference. In case of a legacy charged upon lands, the land yields profit: but that is not the reason that in such case the legacy bears interest immediately. The rule with respect to legacies out of personal estate is taken from the practice in the ecclesiastical courts, where a year is given to the executor to collect the effects, and he cannot be called upon to pay before that time, because he cannot know until then what fund there is to pay; in conformity to this courts of equity have proceeded in the case of legacies out of personal estates.(6) But in the case of legacies charged upon lands only, where no day of payment is fixed, interest must be chargeable from the death of the testator, or not at all.

(a) Vide Gibson v. Bott, 7 Ves. Jun. 97, acc. (6) Vide Lord HARDWICKE in Beckford v. Tobin, 1 Ves. 310,

acc.

V.

int

sable til wards.

1802. Nothing can be more settled than that a man's saying,

“ I direct all my stock to be applied to the payment of PEARSON

“ legacies,” will not make those legacies bear interest one PEARSON,

moment sooner than they otherwise would: whether the LYNCH AND OTHERS. fund bears interest or not is totally immaterial in the case

of pecuniary legacies ; I remember a case of Greening v. Pecuniary le

Barker, where the fund did not come to be disposable for gacies bear

the payment of legacies till near forty years after the death of a year, al

of the testator, and yet the legacies were held to bear though the interest from the year after testator's death, and the fund may not become dispo- court there was of opinion, that it was a general settled

and fixed rule, that pecuniary legacies bear interest from the expiration of twelve months, if there should at any time be a fund for the payment of them, and that in case the fund was productive within the twelve months all the intermediate profits belonged to the residụary legatee. The executor may pay the legacy within the twelve months, but is not compelled to do so : he is not to pay interest for any time within the twelve months, although during that time he may have received interest. But if he has assets he is to pay interest from the end of the twelve months, whether the assets have been productive or not.

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Another point was made in the case by the counsel for the plaintiff (the executor) that as he was residuary legatee for a moiety, and had been obliged to come into equity for direction, he had a right to take his moiety without being subject to costs.

Lord CHANCELLOR. Costs must be paid out of the whole fund, for the difficulty in the case is one created by the testator's will, and it is a general rule that when the difficulty is created by the will, the costs are to come out of the general fund. (c)

1802.

PEARSON

V. PEARSON, YNCH AND OTHERS. OTHERS.

Reg. Lib. xlviii. fol. 402.“ The decree as to the point in “ this case merely directed an account of testators debts, “ funeral expenses and legacies, and that his personal estate “ should be applied in payment of his funeral expenses " and debts, in a due course of administration, and then in “ payment of his legacies.”

(0) Folliffe v. East, 3 Bro. Ch. G. 25. Wms. 303, acc.

Studholme v. Hodgson, 3 P.

LAWRENSON v. BUTLER.

Dec.7, 8. HE bill in this case prayed a specific performance of Where nothing an agreement to execute a lease of the lands of New

e os me lands 0 ww under an agree. town and the other premises hereafter mentioned in the ment, the court

ought not to Queen's County for three lives, with a clause of perpetual decree a specirenewal.

fic performance except when the right to

compel it is The bill stated that Edward Butler being seized of the mutual. lands in question by virtue of a lease for lives with clause of perpetual renewal, did on the 24th and 25th of September, 1790, by deeds of lease and release, made subsequent to his marriage, convey the said lands to trustees, to the use of himself for life, and after his death, subject to a jointure to his wife, to the defendant Edmund Butler the first son of the said marriage his heirs and assigns for ever. On the 24th of April 1794, Edmund Butler, previous to his then intended marriage with F. Madden, entered into a settlement by deeds of lease and release to which his father and the trustees in the former settlement were parties,

V.

1802. whereby the lands which were the subject of the bill were LAWRENSON convey

conveyed to trustees, in trust to permit and suffer the said

Edmund and his assigns to receive the rents and profits of BUTLER.

the same during his natural life, with remainder to the issue male of the marriage, with the ultimate reversion to Edmund with a proviso that it might and should be lawful for the said Edmund from time to time during his life to make leases of the said premises for three lives or thirty one years, and by and with the consent of the trustees under their hands and seals to make leases for any term of years or lives with or without covenant for perpetual renewal, so that there should be reserved upon every such lease the best and most improved rent that could reasonably be had, without fine or other compensation.

The marriage took effect, and Edmund Butler being seized of the lands in question, in March 1800, entered into a treaty with the plaintiff for a lease of the house and demesne of Newtown. The plaintiff agreed to take the same at 1l. 12s. per acre, (which the bill charged to be the full improved rent) on a lease for lives renewable for ever, which the defendant, Butler, represented he had a power of making with the consent of the trustees under his marriage settlement. Accordingly, on the 29th of March 1800, a memorandum in writing was signed by the parties to the following effect : “ That said Edmund did for him" self and his heirs, set and to farm, let to plaintiff and “ his heirs the house and demesne of Newtown, and also, 4 eighteen acres on the north side of Ballybooden road, " at the yearly rent of 1l. 12s. per acre for three lives, " with perpetual renewal, paying 25l. as a fine for 56 each renewal, and that plaintiff did agree to take the “ trees on the said lands, and all or such of the said Ed" mund's stock or furniture at a valuation as he should " think proper to dispose of; and it was also agreed, that “plaintiff should take twenty-two acres, called the Mill

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Scrub, at the same rent.” And to this memorandum
these words were added “ Ralph Lawrenson (the plaintiff)
“ doth agree to pay double the valuation of trees, furniture,
“ and stock.” And there was ar. indorsement on it to this
effect: “ That Ralph Lawrenson was to pay a further sum
“ of 1001. to William Ryan one of Butler's creditors.” It
was further charged that defendant had promised to pro-
cure the consent of the trustees to execute the lease but
had not done so, and now refused to execute it himself.

On the part of the defendant it appeared that he was involved in debt and desirous to raise money, and had with this view entered into the treaty with the plaintiff, but that having remarked to him the obstacle arising from his being precluded by his marriage settlement from taking a fine, it was suggested by the plaintiff that that obstacle could be surmounted by plaintiff's paying to him double the valuation of the trees, &c. and that such double valuation would not be considered as a fine; and that under that impression he signed the memorandum : that the memorandum when signed was delivered to plaintiff's friend Mr. Edward Lawrenson (the only other person who had been present at the transaction) with an injunction not to shew it or disclose its contents to defendant's father. It was also proved on the part of the defendant that the nature of the settlement was mentioned to plaintiff at the time of the transaction, and a copy of it delivered to Mr. Edward Luwrenson. The trustees refused to consent to defendant's making a lease pursuant to the agreement, and defendant denied that he had promised to procure their assent, but stated by his answer, that having repented his indiscretion, he went on the day next but one after the agreement was executed to the house of plaintiff's friend Mr. Edward Lawrenson, and told him he would not abide by the agreement. As

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