1803. Executors of V. GORE. Special point. The ever, save and except three several sums of 10,000%. "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 20,000. 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. 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 Arran, 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 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 1803. FERGUS V. 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 de 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(b) 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. (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. the statute of mand. 1803. Executors of 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 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." 1803. MAHON v. SAVAGE. TESTATOR bequeathed to his executor the defendant Feb. 16. Legacy to exe cutor to be dis tributed amongst the poor relations of "testator: A relation who was time of testa one thousand pounds, to be distributed amongst his poor "relations, or such other objects of charity as should be "mentioned in his private instructions to his executors.' No such private instructions were left; and the master having been, in 1797, directed to inquire and report who were poor relations of the testator, the cause was now set down to be heard upon this report, which specified poor relations to the number of fifty and upwards, many of whom titled. Poor were beyond the degree prescribed by the statute of distri- before distribubutions. the poor at the tor's death, but became rich before distribution, not en relation dying tion, his claim not transmissible to his personal repre Where a person has a power of distribution among poor relations, he may distribute amongst all Mr. Plunket on behalf of the personal representative of sentative. Mathew Lynam, contended that the report should be sent back to the master, to insert the name of the said Lynam as a poor relation of the testator, and also to strike out the names of such persons as were beyond the degree of relationship required by the statute of distributions. On the first point, it appeared that Lynam had been a relation of the testator within the degree, and was a poor man at the time of the death of the testator, but had become affluent in his circumstances previous to 1797. poor relations, however re mote: But where the court is called on to distribute, in failure of the person so empowered, The Lord CHANCELLOR was of opinion, this was meant it will confine as a charitable bequest, and that the objects of that charity should be the testator's own relations : That it was nothing more 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) (a) Vid. Attorney General v. Buckland, cited Ambl.71; in which case it is said to have been decided by Lord HARDWICKE, that itself to rela tions within distributions. the statute of 1803. MAHON υ. 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. Cas. 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.(b) 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 dis tribution 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 2,000l. 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 entitled within the terms of the bequest: the order too for payment to one of these persons was actually made. (b) Ambl. 708. |