1841.

LAWRENCE

v.

BLAKE.

ever.

plaintiffs in the supplemental bill of 1836 have any right to that surplus? They were the devisees of the residue of the estate of Nicholas A. Burke. He had unsettled the estate; he had suffered a recovery, and so barred the entail. If, at his death, he had left any portion of the settled estate, how could that have passed to the devisees of the real estate of Nicholas A. Burke? The object of the bill was to restore this sum of money to the trustees of the settlement; but under that settlement the devisees of N. A. Burke had no title whatThe charge against the estate of Walter Lawrence was more than absorbed by what was due for the legacies. But these legacies were no charge on the estate of N. A. Burke. The trustees were to raise so much money as was necessary to pay his debts and legacies; and even by the provisions of the Act of Parliament, the portion of the estates to be sold was limited to that which was necessary for such purpose. It is stated on the face of the bill, that more than sufficient was raised for this purpose, and these legacies, therefore, do not continue a constructive charge upon the estate; in fact, these legatees have not been paid from the estate of N. A. Burke, and the parties who now seek to revive the suit cannot do so, as they do not represent the original plaintiffs, and have no interest entitling them to appear in this suit. The case of Hamilton v. Houghton (a) is in point. laid down in that case was, that where a trust is created by deed, for the payment of debts, if a bill is filed by one of the creditors to enforce the payment of his debt, that purpose can only be effected by the general execution of the trust. The decree, in such a case, ought to direct such execution, and an inquiry as to all the debts owing and payable under the trust, and (a) 2 Bligh, 169.

The rule

that they should be paid according to their priorities.
A decree for the payment of the debt of one creditor,
under a deed of trust, which provides for the payment
of other creditors, is erroneous; and finally, a bill to
carry such a decree into execution, notwithstanding
long acquiescence, cannot be sustained. The original
decree may be examined, impeached, and varied, in
a suit to carry that decree into execution. But the
opinion which this House then entertained of a suit
like the present, may be best collected from the obser-
vations of the Lord Chancellor. He said (b) :—“The
appeal complains that the decree was taken in the
absence of Henry Hamilton, who was the surviving
trustee named in the deed of 1758, and was then
living, and was therefore a necessary party to the
suit. This is the objection made to the decree of
1780, which is sought, by the subsequent proceedings,
to be carried into execution, and the benefit of which
is sought thereby. If that decree was an erroneous
decree, they were not entitled to have it carried into
execution." That is what the Appellants say here.
His Lordship then goes on thus:-"The questions
here are really these: In the first place it has been
suggested at the bar that there is a presumption, from
lapse of time, that the 3507. must have been paid, and
that neither principal nor interest can be claimed after
so long an interval. It does not appear to me, from
these pleadings, that we can take that for granted;
but if there were other creditors, whose demands ought
to have been provided for by this decree, they might
have had a right to insist on that proposition. The
original decree appears to me to be a decree, the
benefit of which cannot be had in this suit. That

(b) 2 Bligh, 188.

1841.

LAWRENCE

V.

BLAKE.

1841.

LAWRENCE

v.

BLAKE.

original decree is at least wrong in these respects:
first, that the surviving trustee was not before the
Court; and secondly, that it was not a species of de-
cree that ought to have been made to carry into exe-
cution the trusts of such a deed as this."
In every
respect that case is applicable to the present. The
same doctrine was held in White v. Parnther (c), in
which it was expressly declared that where a Court of
Equity is called upon to carry into execution a former
decree, it is not bound to do so, if, upon inquiry into
the merits, the decree appears to be erroneous.

The rules thus laid down have not been complied with in this case. R. A. Burke, or, after his death, his personal representative, was a party most essential to the validity of these proceedings. The legacies were given to his children, and he was tenant for life of the estate which was liable to make them good. He was, besides, the personal representative of the testator, and the person who was proved to have received (and the Court dealt with him in that character) the sum of 3,000l., which had been misapplied. As the representative of the testator alone, he ought to have been before the Court in the years 1819, 1821, and 1823, when these decrees were made. Under all these circumstances, he falls within the rule laid down by Lord Redesdale (d), in Doyle v. Blake. There the executor had been appointed and approved of, but he did not act; debts remained unpaid, and a bill was filed against him. Lord Redesdale held that executors having proved, had no means of being discharged without administering under the Court of Chancery,— a most alarming doctrine, perhaps, but which is nevertheless the law. His Lordship said :—" This case

(c) 1 Knapp, 179-222.

(d) 2 Sch. & Lef. 239.

1841.

v.

BLAKE.

depends on the general question whether an executor, having accepted the office, and having acted unques- LAWRENCE tionably as executor, so far that if an action at law were brought against him he could not plead that he never was executor, nor acted as executor, shall be permitted, to the prejudice of legatees, to say that he is not an executor. I do not mean to lay down the rule positively, that there is no case where the strictness of law would charge a man as executor as to creditors, in which equity would not charge him also as to legatees. Legatees are bound by the terms of the will; creditors are not so: and therefore, in many cases, executors would be discharged as against legatees, though not as against creditors. For example, in the present case if these gentlemen had collected the effects, and had paid the amount to Martin Horan; still, if a creditor had remained unpaid, he might have charged them upon the insolvency of Horan: whereas in the case of a legatee, the executors might justify themselves by the directions in the will." And in another part of the same case (e), he added these words: "Executors must either wholly renounce, or if they act to a certain extent as executors, and take upon them that character, they can be discharged only by administering the effects themselves, or by putting the administration into the hands of a Court of Equity." This doctrine bears strongly on the suit for the 2,500l., and becomes more than ever applicable, because here the Court proceeded without having the representative of R. A. Burke before it.

The next point is, if possible, clearer: A charge is now attempted to be fixed on the real estate of Walter Lawrence, which alone these Appellants represent.

(e) 2 Sch. & Lef. 245.

1841.

LAWRENCE

v.

BLAKE.

The personal representatives of Walter Lawrence have received between 7,000l. and 8,000l., of which they have given no account. The debt due to the plaintiffs in the suit amounts only to between 5,000l. and 6,000l. The personal representative is the proper person to be called on for the payment of that debt. There the Court has expressly declared that the real estate is not liable, and has made the debt a simple contract debt. If there are two funds, real and personal, the former must bear the judgment debts, in order that the simple contract creditors may be paid out of the personal estate. Such creditors would have had no right as against the real estate, merely because the personal estate had been wasted by the personal administrator. The rule in such cases is, that those parts only of the real estate are liable as have been relieved from debts by the application of the personal estate. The rule that a legacy could not be raised where the legatee died before the time of payment of a legacy charged upon real as well as personal estate, was laid down by Lord Hardwicke, in the case of Prowse v. Abingdon (f); and in Kearnan v. Fitzsimon (g), the Lord Chancellor thus expressed himself on this point of marshalling assets, in a case of this sort :-" It is said that the Appellant is entitled to stand in the place of such judgment creditors of T. F. as have exhausted his persona lestate, and to come in pro tanto on his real estate; and that the Court of Exchequer ought to have marshalled his assets accordingly. But in my opinion this is not a case in which a Court of Equity can or ought to marshal the assets of T. F., for the purpose of letting in the Appellant upon his real estate. The rule of marshalling asset sholds only where it is proper

(f) 1 Atk. 482.

(g) 3 Ridg. P. Cas. 16.