CHAN.] MUGGERIDGE v. STANTON. husband. If that were so, and Mrs. Stanton was a married woman, I should come to the conclusion that Mrs. Stanton had declared no trust, but that every portion of the investment she made arising from other sources is an investment made, not only contemporaneously with the fund, which clearly came under the trust, and of which the trust was declared by deed, but as an aggregate fund, without any separation or distinction of the parts of this fund. Take the first investment, 419. Some 80% or 90%., no matter what, arises, as she says, from the yearly dividends upon the fund which is the subject of the settlement. The rest of it arises from other sources, but it is entirely undistinguishable. It does appear that when she invested the 4197., of which she has expressly declared the trust as to an undefined portion-or rather I should say unsevered-she has not separated that portion of it, when she has by a prior deed declared the trust of the unsevered portion, and made an investment of the aggregate portion of the 4197. It does appear to me there is not only a trust constituted in this respect-that the fund is actually placed in the hands of trustees upon some trust-but the trust is declared to be the same trust upon which the unsevered portion is to be held. If the matter were merely this, that there being a settled fund, and no such clause in the deed as that to which I have adverted-if the settler, or anybody, chose to simply add to that fund by increasing the amount of stock in the names of the trustees, without communicating with anybody, whether that fund thus added to, in the absence of any evidence the other way, would be held to be a fund which was to go according to the trusts of the original fundin other words, a constituted trust-may be a question. My own impression is, when that question arises-for I am not aware that question has arisen and been determined-it would be determined, in the absence of all indications of intention one way or the other, that that did amount to a declaration of trust. It is a constitution of a trust clearly as far the creation of a trust in the hands of the trustees. The question then would be, is it a resulting trust, or is there a declaration of a specific trust, or that which is tantamount to it? My own impression is, that the adding it to the original fund is in effect a dedication of it to the same trust as the original fund was held upon. But this is not that case; this is more than that case, because here we have, that whenever the investment, was made the unsevered portion of that investment, was, according to what I have already decided, actually given upon a declared trust, and the only thing was, that instead of giving 50l. she gave 100%., and instead of 90l. she has given 400, or whatever the difference may be between the actual fund invested and the actual amount of the dividends of this particular fund. Therefore, I have got here a much stronger case than I suggested. I think even in that case the result ought to be at least I do not see how to get out of the conclusion-that the decision ought to be that it was dedicated to the trust of the original fund, and thereby in effect a trust declared. But I have got here a much stronger case. Whenever she made an investment of any particular sum of money, she had already declared the trust of a part of it. Therefore, I think I am well justified in coming to the conclusion that there is that which amounts to a constitution of a trust-fund-first, upon the fund being placed in the hands of trustees; and, secondly, a sufficient declaration of a trust, that is, what is tantamount to a declaration of trust, to prevent what it is contended ought to prevail here, a resulting trust in favour of the settlor. For these reasons, I think there must be a declaration of rights, subject of course to Mrs. Stanton's life-interest, about which there can be no controversy. As it was arranged, the insurance office will probably appear and concur, and as soon as they appear and concur, the whole fund may [CHAN. be brought into court, and the dividends will be paid to Mrs. Stanton during her life. Baily, Q.C. and Nalder appeared for the plaintiffs, the respondents, the appeal being from the whole | decree. Toller, Q.C. and Archibald Smith for the defendant, the appellant. Hardy for Richard Pugh, the surviving trustee. The following authorities were referred to:-Cook v. Felton, 3 Swanst. 531; Vanderberg v. Palmer, 4 K. & J. 204; Dipple v. Corles, 11 Hare, 183; Hughes v. Stubbs, 1 Hare, 476; Fletcher v. Fletcher, 4 Hare, 67; Gosling v. Gosling, 3 Drew. 335; M'Fadden v. Jenkins, 1 Hare, 458. The LORD CHANCELLOR.-I am of opinion that this case was properly decided in the court below. I think it is quite clear, both with regard to the accumulations and the original money, that the investments must be supposed to be upon the trusts of the settlement, and that the defendant Mrs. Stanton must be supposed to have been perfectly aware of it. With regard to the accumulations not a doubt can be entertained, and I think Mr. Toller and Mr. Smith have hardly ventured to say, with regard to the accumulations which were provided for by the deed of settlement, that there was not what was tantamount to a declaration of trust, when the accumulations were made for the purpose of buying additional stock in the name of the trustees. Then, with regard to the surplus money, it is quite clear that, whatever the defendant intended to be the destination of the accumulations, she intended to be the destination of the surplus money, and that there was equally a declaration of trust with regard to the whole of the investments. The only question is, whether she ought to have leave to file a cross-bill, for I think it impossible to hold otherwise than that the appeal must be dismissed as it now stands. Then, with reference to the question of giving her an opportunity of filing a cross-bill, my opinion is, that no leave should be reserved for that purpose, because there seems not to be a possibility of its leading to any good. It would only involve this lady, who, I dare say, is a very respectable lady, in a fruitless and expensive litigation. I regret very much that we cannot decide in her favour, but we feel bound to decide in the present state of the case in the way I have stated. Lord Justice KNIGHT BRUCE.-Mr. Toller, as I understood him, has fully stated his willingness-he will correct me if I am mistaken-to have this case treated as if there were a bill by the lady raising this question, supported only, and opposed only, by the surporting and opposing evidence now before the court. [Toller.-Yes, certainly.] I understood you to say so, and I have not mistaken you. Then, upon that, I have not the slightest hesitation in saying that if we had such a bill already here before the court, and there were no other materials before us than those we now have, although I do not attribute any insincerity to her, I am unable to accede to her demand; I think the trusts of the settlement, from the irresistible force of the accompanying circumstances, fastened upon the property in dispute. Lord Justice TURNER.- I agree that the trusts of the settlement fasten upon the property. I should be very much inclined to think that it was a case for giving leave to file a cross-bill to relieve this lady, if I thought that there was any possibility of any evidence, or if it was suggested that any evidence could be brought forward, to show that the circumstances under which the investments were made were such as were consistent with the trusts existing for her own benefit. But I do not think, upon this lady's simple statement, looking at all the circumstances of the case, there would be sufficient evidence. Desiring to say that I do not mean to impute to her any false statement upon CHAN.] SWIFT v. SWIFT. [CHAN. the subject, but looking at the entire looseness of the my will and mind is, that the said Thomas Farnhill evidence, I do not think there is a case made sufficient to and Joseph Stocks shall have all their reasonable induce the court to give this lady leave to file a cross-charges and expenses any way incurred by or by reason bill. Dec. 2, 3 and 12. (Before the LORD CHANCELLOR (Campbell.) SWIFT v. SWIFT. of the execution of this my will. Also I give and bequeath unto my said friend Joseph Stocks the choice of six English books, as a token of respect, out of my collection. When all debts have been discharged as aforesaid, then my will and mind is, that the residue and Will Real estate-Freehold and leasehold property-remainder of all moneys arising from the sale of my Construction. real and personal estate be equally divided by the said Thomas Farnhill and Joseph Stocks between Anne Colbeck, of Carlington, and Mary the wife of John Lastly, I do hereby constitute, nominate and appoint the said Thomas Farnhill and Joseph Stocks executors of this my last will and testament, hereby revoking all former wills by me heretofore made, and declaring this only to be my last will and testament." A testator in 1845 devised“ all his real estate lying and being within Forup" to trustees, "to have and to hold unto them and the survivor of them for ever, or other-Schofield, of Gomersall, in the parish of Birstall. wise according to the several and respective natures and tenures thereof." He then directed the trustees to sell his real estate above mentioned, subject nevertheless to legacies amounting to 400l.; and after directing his debts, &c. to be paid out of his personal estate, he directed that if insufficient Jor that purpose the deficiency should be paid "out of the rents, issues and profits of his real estate." The testator was possessed of freehold property of the value of about 500l., and of leasehold property, having 1800 years to run, of the value of about 2100%. Both estates, although not quite contiguous, were occupied by one tenant at one entire rent of 701. The question arose whether the leasehold property was chargeable pro rata with the freehuld property with these legacies. The M.R. was of opinion that the legacies were chargeable on the freehold property only, and not on the leasehold: Held (reversing the decision of the M.R.), that the legacies were chargeable on both the freehold and leasehold estates rateably. This was an appeal from a decision of the M. R. Thomas Lindley, late of Haltongill, in the parish of Arncliffe, in the county of York, clerk, duly made and published his last will and testament in writing, bearing date the 17th Aug. 1833, and such will, so far as it is material to be set forth, is as follows:-"In the first place I give and devise all my real estate lying and being within Foxup, in the township of Haltongill aforesaid, unto my cousin Thomas Farnhill, of Dewsbury, in the county of York, and Joseph Stocks of Priestly-green, in the township of Hipperholme, in the parish of Halifax, in the said county of York; to have and to hold unto them the said Thomas Farnhill and Joseph Stocks, and the survivors of them forever, or otherwise according to the several and respective natures and tenures thereof, in trust nevertheless to and for the only proper use and behoof of the persons hereinafter mentioned, and subject to such conditions as shall be herein expressed. Also my will and mind is, and I do hereby order and direct, that the said Thomas Farnhill and Joseph Stocks, or the survivor of them, shall, as soon as convenient after my decease, be enpowered and they are hereby empowered to sell my real estate herein above mentioned, subject nevertheless to and charged and chargeable with the sum of 2001. of lawful British money, unto my cousin Henry Swift or his lawful issue; and with the like sum of 2001. lawful British money unto his sister Mary Swift, or her lawful issue. And in case the said legatees be either or both of them dead without leaving issue as aforesaid, then my will and mind is that the said legacy or legacies of 2001. or 400l. as the case may be, be paid to the nearest akin on my mother's side, the said legacies to be paid at the end of twelve months after my decease, if convenient. Likewise, I hereby give and bequeath all my personal estate unto the said Thomas Farnhill and Joseph Stocks, they paying thereout all my just debts, funeral expenses and probate of this my will, if the same will extend so far, but if not, then I hereby will, order and direct that the deficiency shall be paid out of the rents, issues and profits of my real estate. And in that case The testator made a codicil to his will, dated the 2nd Feb. 1837, which was signed by the testator, but not attested. The codicil was as follows:"Whereas I, Thomas Lindley, of Haltongill, in the parish of Arncliffe, in the West Riding of the county of York, did, by my last will and testament in writing, bearing date the 17th Aug. 1833, give and bequeath unto my cousin Henry Swift, and his sister Mary Swift, before she was married, the sum of 4004., and in case they and their issue were extinct, to their nearest relations; now my will and mind is, as it then was, that my distant cousin James Swift, of Clarke-bridge, in Halifax, should take, receive and enjoy the said 400%.. in such manner as my said cousins and their issue should have received the same." The defendant James Swift is the party alluded to in the codicil. Henry Swift, the legatee named in the will, died on the 26th March 1837, and in the testator's lifetime, leaving an only child, the plaintiff. At the death of Henry Swift, the father of the plaintiff, and also at the death of the testator Thomas Lindley, no issue or descendant of Henry Swift was living except the plaintiff. Ann Colbeck, one of the residuary legatees named in the will, died on the 29th Jan. 1835, and Mary the wife of John Schofield, the other residuary legatee,. died on the 13th Nov. 1844; and Thomas Farnhill, one of the executors, died on the 21st April 1835; Joseph Stocks, the other executor, died on the 21st Aug. 1838, and all in the lifetime of the testator. Mary Swift, named in the will, died in 1834, in the lifetime of the testator, leaving issue. Thomas Lindley, the testator, died on the 8th Jan. 1847, and the defendant James Swift procured letters of administration with the said will and codicil annexed, to be granted to him by and out of the Prerogative Court of York, on the 3rd Feb. 1847, and thereby became and now is the sole legal personal representative of the said Thomas Lindley, and possessed himself of all the testator's personal estate, and also entered into the receipt of the rents and profits of the testator's estates and hereditaments, and out of the personal estate paid all the testator's debts, funeral and testamentary expenses. The freehold estate of which the testator was seised. at the date of his will and at the time of his death consisted of 121 acres of pasture land, situated in the parish of Arncliffe, in the county of York, and was of the value of about 500. The leasehold property which he was possessed of at the date of his will and at the time of his death was held, at a yearly rent of 198. 6d., for the residue of a term of 2000 years, 200 of which had expired-this leasehold property being of the value of 2100l. The freehold and leasehold estates were held together by one tenant, at a yearly rent of 70%-the amount attributable to the freehold estate being 147. per annum, and to the leaseholds, 561. per annum. The personal estate was suffi cient to pay the debts and testamentary expenses of the testator, but not the legacies; and the question raised was, whether the two legacies of 2001. each were to be charged exclusively on the real estate, nearly exhausting the whole of it; or whether, under the terms "give and devise all my real estate, to have and to hold for ever or otherwise, according to the several and respective natures and tenures thereof," the leasehold estates were not included with the freehold. The M. R. held that the legacies were charged exclusively on the freehold estate; and from this decision the plaintiff now appealed. Elmsley, Q.C. and G. Lake Russell appeared for the plaintiff, the appellant. Roundell Palmer, Q.C. and Hingeston for the defendant, the respondent. Elmsley, Q.C. in reply. The following cases were cited during the argument:-Hartley v. Hurle, 5 Ves. jun. 540; Thompson v. Lawley, 2 Bos. & Pul. 303, and 5 Ves. jun. 476; Bellasyse v. Lucan, 9 East, 448, 461; Addis v. Clement, 2 P. Wms. 26; Shuttleworth v. Howath, 2 Cr. & Ph. 228; Knottsford v. Gardner, 2 Atk. 450; Goodman v. Edwards, 2 Myl & K. 759. [CHAN. illiterate man might easily suppose that under the term "real estate his leasehold estate which he held for 2000 years, 1800 of which were unexpired, would pass. Looking at all the facts of the case, and the language of the will, I am of opinion that the decree of the M.R. ought to be reversed, and that there ought to be a declaration that the leasehold estates are charged with these legacies rateably with the freeholds. Monday, Dec. 5. (Before the LORDS JUSTICES.) Breach of trust-Administrator of executrix-Gen- A testator by his will gave his freehold and leasehold estates and the general residue of his personal estate to his son G., and appointed H., his widow, his sole executrix. G. died on the 16th March 1838, intestate, leaving two sisters (B. and S.) and a niece his coheiresses-at-law, and they, with his mother, were his sole next of kin. The mother took out administration to her son, and died in 1841, leaving a will, under which her daughter B. was sole executrix and sole legatee. On the 17th Dec. 1858 B. took out administration de bonis non to G.'s estate, and on the 20th Dec. 1858, more than twenty years after the intestate's death, the niece and her husband filed the present bill to recover her share of the real and personal estate of the intestate, which had never been paid to her, and to have the real and personal estate administered: Held (confirming the decision of Stuart, V.C.), that the plaintiff was entitled to an account of the rents of the real estate only for a period of six years before the institution of the suit, but that the Statute of Limitations was no bar to an account of the personal estate and of the rents of the leasehold estate received by the original administratrix or by her executrix from the period of the death of the intestate. Where a breach of trust is committed by a person who holds property as an "express trust," his assets in the hands of his personal representatives continue liable to the persons interested in the subject of the trust, even after a lapse of six years from his death before claim preferred. The LORD CHANCELLOR.-After a very attentive consideration of this case and an examination of all the authorities on the subject, I am bound to say that I cannot accede to the decision of the M. R. The question is, whether the testator by his will charged his deasehold estates rateably with his freeholds with the legacies which he has there given. This depends upon whether the leaseholds passed under the first devise in the will, which is as follows:-" In the first place I give and devise all my real estate lying and being within Foxup, in the township of Haltongill aforesaid, unto my distant cousin Thomas Farnhill, of Dewsbury, in the county of York, and Joseph Stocks, of Priestleygreen, in the township of Hipperholme, in the parish of Halifax, in the said county of York; to have and to hold unto them the said Thomas Farnhill and Joseph Stocks, and the survivor of them for ever, or otherwise, according to the several and respective natures and tenures thereof, in trust nevertheless to and for the only proper use and behoof of the persons hereinafter mentioned, and subject to such conditions as shall be herein expressed." The will having been made before the 7 Will. 4 & 1 Vict. c. 26, the construction of it will not be affected by the 26th section of that Act, This was an appeal by John Bishop and Mary his which enacts" that a devise of the land of the tes-wife, two of the defendants in the suit, against a decree tator, or of the land of the testator in any place or in of Stuart, V.C., bearing date the 11th July 1859. the occupation of any person mentioned in his will, or The circumstances of the case were these:-The bill otherwise described in a general manner, and any other was filed for the administration of the personal estate, general devise which would describe a customary copy- and (so far as might be necessary) of the real estate also hold or leasehold estate, if the testator had no free- of George Grew, who died intestate on the 16th March hold which could be described by it, shall be construed 1838. The bill stated the will of George Grew the to include the customary copyhold and leasehold estates elder, dated the 25th Feb. 1836, whereby he gave and of the testator, or his customary copyhold and lease-devised the whole of his freehold, leasehold and perhold estates, or any of them, to which such description sonal estates, of whatsoever nature or kind, to his shall extend as the case may be, as well as freehold wife Hannah Grew and William Austin, upon trusts estates, unless a contrary intention shall appear thereinafter declared. And after giving to his said by the will." In the present case regard being wife, for her natural life, the whole of his furniture had to all the facts of it and to the language of the and household effects, and the whole of the rents and will, I think there are strong grounds for coming to the proceeds of his freehold and leasehold estates, and conclusion that the testator intended the leaseholds to all debts due to him at the time of his decease, pass with the freeholds. We must consider the cir- to be invested as his executors might think cunstances of the case: the freehold was very small and of little value; if let separately from the leaseholds would not in that case even have paid the interest of the legacies. The leaseholds, which were of great length, were of much higher value. These properties, although not exactly contiguous, lay so near each other that they for a long period of time had been let together. From these circumstances I cannot but think that the testator intended both the freehold and leasehold estates to pass, and that they should both be sold Zogether and the legacies paid out of the proceeds. An proper, excepting upon trust to pay out of the rents, dividends and profits of his estates, into the hands of his daughter Sarah Ball, the sum of 201. per annum during her life, to be paid quarterly, for her separate use, so that the same should not be subject to the debts or control of her then present or any future husband, for and during her natural life; he then, in the event of the death of his wife, gave to his daughter Mary Grew the rents and profits of certain portions of his leasehold property for her life, for her separate use, and the said leasehold property was, in CHAN.] [CHAN. in favour of the said Sarah Bennett, which might then be recoverable, and which annuity the defendant Jos. Bennett alleged to have been in arrear at the time of her decease. the event of her death, to become the sole property of his son George Grew the intestate, absolutely. Further, on the death of his wife, he gave to his said son George Grew (the intestate) the whole of the residue of his estate and effects (which he then specified), directing that "he or they (the heirs, executors, administrators or assigns of his said son) should pay out of the proceeds thereof, to his said daughter Sarah Ball, the sum of 201. per annum, quarterly, for and during her natural life, exclusive of any control of her hus-ants John Bishop and Mary his wife; that a receiver band as aforesaid." And he thereby appointed his wife Hannah Grew and William Austin executrix and executor, and trustees of that his will. Later in the year 1836 George Grew the testator died, leaving his wife Hannah Grew, his son George Grew, who was his heir-at-law, his daughter, then Sarah Ball but afterwards Sarah Bennett, wife of the defendant Joseph Bennett, and another daughter the defendant Mary Bishop, wife of the defendant John Bishop (the appellants), and William Austin, him surviving. The will was proved by Hannah Grew only, and William Austin never acted in the trusts, and died in the lifetime of his co-executrix, who alone entered into receipt of the rents and possession of the estate, and so continued until her death, paying to Sarah Bennett her annuity of 201. George Grew, the intestate, died on the 16th March 1838, and on the 9th May of that year letters of administration to his personal estate were granted to Hannah Grew. She died on the 5th March 1841; and long after her decease, namely, on the 17th Dec. 1858, administration to the intestate's personal estate left unadministered by Hannah Grew was granted to Mary Bishop, who is now the sole legal personal representative of George Grew, the intestate. He left surviving him his two sisters, already named, and an only child of a deceased sister (now the plaintiff Elizabeth Susanna Obee) his coheiresses-atlaw, and they, with his mother Hannah Grew, were also his sole next of kin under the Statute of Distributions. Hannah Grew died on the 12th March 1841, having by her will given all her estate and effects to her daughter Mary Bishop, for her own use, and she appointed her sole executrix of her will, which was duly proved by the said Mary Bishop on the 24th March 1841. The bill prayed that the personal estate and (so far as might be necessary) the real estate of the said George Grew, the intestate, might be administered; that an account might be taken of the rents and profits of the freehold houses which had been received by the defend might be appointed, and that all proper and necessary directions might be given for the partition of the real and personal estate amongst the parties respectively entitled thereto. The bill was filed on the 20th Dec. 1858. The defendants Mr. and Mrs. Bishop by their answers insisted that "as to all the said personal estate, and the interest, produce and profits thereof, and as to all the rents and profits of the said freehold and leasehold estate which had accrued more than six years prior to the filing of the said bill of complaint, the claim of the said plaintiffs was wholly barred by lapse of time and the statutes for the limitation of action and suits, on which statutes they claimed leave to rely in the same manner as if they had pleaded the same in bar to the said bill, or to so much of the relief and discovery thereby sought as was barred by the same." The cause was heard on the plaintiffs' motion for a decree, before Stuart, V. C. on the 11th July last, when his Honour declared the rights of the several parties to the real and personal estate of George Grew, the intestate, and he directed various accounts and inquiries, amongst other things accounts of the general personal estate, and of the leasehold estates of George Grew, the intestate, and the rents of the leasehold estate received since the death of the intestate, or otherwise come to the hands of Hannah Grew, his administratrix, or to the hands of Mary Bishop, the administratrix de bonis non, or her husband; and he directed an account of the rents and profits of the real estate in like manner received by them, which had accrued due since the 20th Dec. 1852, being six years preceding the 20th Dec. 1858, when the bill was filed. From this decision John Bishop and his wife appealed, stating in their petition that George Grew, the intestate, had died more than twenty years previously to the Upon Mrs. Grew's death the freehold property of George Grew the elder fell into possession, and the co-filing of this bill, and that Hannah Grew, his adminis heiresses of George Grew, the intestate, became entitled thereto, and the beneficial interest in the leasehold houses devolved upon the defendant Mary Bishop, as personal representative of Hannah Grew, deceased, the said Mary Bishop in her own right, Sarah Bennett (since deceased) and the plaintiff Elizabeth Susanna Obee, but subject as to the freehold and leasehold houses to keeping down the annuity of 201. charged thereon for the benefit of the said Sarah Bennett. tratrix, received and possessed the personal estate, and entered into possession of the leasehold estate, and died more than seventeen years prior to the filing of the bill; and they submitted that under these circumstances the decree was erroneous, and ought to be reversed or varied so far as the same directed an account of the personal estate of the intestate received by the said Hannah Grew in her lifetime, and also so far as the same decree directed an account of the personal estate of the intestate received by the appellants more than six years prior to the filing of the bill; and also so far as the same directed an account of the rents and profits of the leasehold estate received by the appellants, and which accrued more than six years prior to the filing of this bill; and they prayed that the same decree might be reversed and varied accordingly. Sarah Ball, having survived her first husband, married the defendant Joseph Bennett, and died on the 5th Sept. 1858, intestate, leaving one son and no more, namely, the defendant George Ball, who is now entitled as her heir-at-law to her share of the freehold property of George Grew, the intestate. Joseph Bennett also took out administration to his wife. Upon the death of Hannah Grew, Mary Bishop entered into possession Malins, Q.C. and Haig, for the defendants appealof the freehold and leasehold houses devised and being, referred to the 25th section of the 3 & 4 Will. 4, queathed by the will of George Grew the elder to c. 27, which is in the following terms: "That where George Grew, the intestate; and the bill alleged that any land or rent shall be vested in a trustee upon any Mary Bishop, or her husband John Bishop, had ever express trust, the right of the cestui que trust, or any since the death of Hannah Grew been, and still was, person claiming through him, to bring a suit against in possession thereof, and of the other residuary per- the trustee, or any person claiming through him, to resonal estate of George Grew, the intestate, and had re-cover such land or rent, shall be deemed to have first tained and employed the same to their own use. The plaintiff's claimed to be entitled to one-third of the real and one-fourth of the personal estate, subject only to any arrears of the annuity of 204. charged on the rents and profits of the freehold and leasehold houses accrued, according to the meaning of this Act, at and not before the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claim an M.R.] Re PITTS.-Re THE OXFORD, &c. RAILWAY, ex parte THE DEVISEES OF MILWARD. [M.R. married woman, but she had been separated from Held, that the evidence did not amount to proof of ing through him." They further referred to the 42nd section of the same statute, which provides that after the 31st Dec. 1833 no arrears of rent or of interest on any moneys payable out of land or rent, or in respect of any legacy, shall be recovered by action or suit, but within six years next after the same respectively shall have become due or been acknowledged in writing, except where any prior incumbrancer shall have been in possession within one year next before an action or suit. by a subsequent incumbrancer. They contended that the 25th section did not apply to this case, inasmuch as it only reserved the rights of persons claiming under express trust;" but the executor of an administrator was not a trustee, but only a debtor. The plaintiff was, therefore, to be regarded only as a contract creditor. Hannah Grew had been guilty of a simple devastavit in equity, which created only a simple contract liability against her executrix (Charlton v. Lowe, 3 P. Wms. 328, 331; Adey v. Arnold, 2 De G. M. & G. 432; Brewe v. Cox, 3 W. R. 276; S. C. 24 L. T. Rep. 326); and although in this last-mentioned case there was a special acknowledgment of the trust by deed, the liability was still only a simple contract debt. During the life of the administrator no time was limited by a court of equity, but after his death a claimant would be held bound in equity by the analogy of the statute limiting the time in which an action could be brought. The case of Cholmondeley v. Clinton, Turn. & Russ. 107, was also cited. Greene, Q.C. and Faber, for the plaintiffs; and Erskine, for defendants in the same interest with them, who appeared to support his Honour's decree, were not called on. Lord Justice KNIGHT BRUCE said that in the present case, the circumstance of a combination of characters in Hannah Grew and the defendant Mary Bishop excluded any defence by the latter on the ground of the Statute of Limitations. As to the rents, his Lordship thought that the court ought not to depart from the rule established by Gough v. Bult, 16 Sin. 623; and Playfair v. Cooper, 17 Beav. 187; Lewin on Trusts, 3rd edit. 748. Then as to the general personal estate, Hannah Grew had been an 66 her life, and after her death her personal representative express trustee" during had become the personal representative of the intestate also, and was not in a position to make any defence to this claim under the Statute of Limitations. Lord Justice TURNER said, that he was of the same opinion as his learned brother. He was by no means disposed to depart from the cases decided upon the 42nd section of the statute, and those cases entirely disposed of the question raised as to the rents. as to the general personal estate, he thought Next be dangerous to hold that the legal personal represenwould tative of a defaulting trustee was free from all demands by a cestui que trust in respect of the breach of trust, 80 soon as six years should have elapsed from the death The old Statute of Limitations did not bind courts of equity; and although those courts acted by an analogy to the law, his Lordship was of opinion that it would not be right to extend the analogy to such a case as the present one. for these reasons, be dismissed, and dismissed with costs. The appeal must, of the trustee. as follows: To "my wife" a legacy of 10l. to be paid The testator, by his will dated 20th April 1859, gave within two months of my death. He also gave to his "said wife" the use of his furniture for her life, and he also directed his trustees, out of his residuary interest thereof to his "said wife real and personal estate, to invest 500l. and pay the the testator, on the 28th May 1855, went through the testator died on the 5th May 1859. for her life. The ceremony of marriage with Ann Farmer, who described It appeared that herself as a "widow," but that in fact her husband John Farmer, with whom she had intermarried in 1832, was then, and is still, living. But she stated in her evidence, after living with Mr. Farmer about four years, she left him without his consent on the ground of cruelty towards her, and that she had ever since lived separate from him, and since that time had heard nothing of him, although, having some time previously to her marriage with the testator heard that he was inquiries to ascertain whether it was the fact, but alive and living at Ashton-under-Lyne, she had made without any result, and at the time of her marriage with the testator she believed that he was dead. It tator the doubt as to his being alive. She lived with Idid not appear whether she had disclosed to the testhe testator as his wife until his death. of kin, that the inquiries made by Mrs. Pitts, alias Evidence was produced by the respondents, the next Farmer, respecting her first husband were insufficient, and that she had fraudulently represented to the testator that her first husband was dead. T. II. Terrell for the petitioner, the acting executor. Martin, for the legatee, claimed the legacy as persona designata. tees, contended that the legatee had been guilty of The MASTER of the ROLLS.-I am of opinion that Re THE OXFORD, WORCESTER AND WOLVERHAMPTON |