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1841. original decree is at least wrong in these respects : LAWRENCE first, that the surviving trustee was not before the
Court; and secondly, that it was not a species of deBLAKE
cree that ought to have been made to carry into execution 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 3,0001., 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
depends on the general question whether an executor, 1841. having accepted the office, and having acted unques- L tionably as executor, so far that if an action at law
BLAKE. 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 inust 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 2,5001., 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 IValter Lawrence, which alone these Appellants represent.
1841. The personal representatives of Walter Lawrence have LAWRENCE
received between 7,0001. and 8,0001., of which they have given no account. The debt due to the plaintiffs in the suit amounts only to between 5,0001. 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
to be done, at the death of the party whose assets 1841. are to be marshalled; it can never arise upon any LAWRENCE subsequent fact or accident." That case was decided in the Irish House of Lords in 1793, and the rule thus laid down has ever since been acted on. Under no circumstances whatever can the real estate be called on for the payment of debts, while there are assets of the personal estate; and here there is not even an allegation of the insufficiency of personal assets. In an anonymous case (h), land settled in trust to pay debts, was held to be discharged as soon as the money was raised, and did not continue liable for the fault of the trustees; and in Precedents in Chancery (0), the Lord Keeper declared that where lands are devised to trustees to raise money for several purposes, and they raise the money out of the profits, the land is thereby discharged, and the persons concerned must resort to the trustees. The same principle was adopted in Carter v. Barnardiston (k), and in Hutchinson v. Massarene (l).
Then again the length of time which has elapsed, and the laches of the parties, constitute a bar to this demand. The will was dated in 1775; the Act of Parliament for vesting the estate in trustees was passed in 1784; a sum of 10,000l. was raised in 1785; the alleged misapplication took place in 1795, or at least that is the time when the first complaint was made, and the first bill was filed—a bill, however, which was almost immediately abandoned, for, as it then stood, it would have charged R. A. Burke with liability. The decree of 1819 says that the assets of W. Lawrence shall be applicable to make good the sum which he misapplied ; but it is now found that (h) 1 Salk. 153.
(k) 1 P. Wms. 505. 518. (i) P. 143, Case 124.
(1) i Ball & B. 49. VOL. VIII.
1841. he did not misapply anything whatever. His assets
& are made liable for the misapplication which is sup
posed to have taken place under the Act of Parliament; BLAKE.
but if any such misapplication had thus occurred, it ought to have been prosecuted in the life-time of R. A. Burke, and then relief could have been given against his personal estate. The case of Berrington v. Evans (m) decided that though there had been a decree in favour of creditors, which before the statute would have prevented the limitation, yet since the statute the creditor who did not come in within twenty years would be barred. During all this time the parties here have abstained, through their own negligence, from prosecuting this decree, which they now come to a Court of Equity to enforce. The authority just quoted is an answer to their application. The real estate cannot be subject to the payment of this money, The parties here do not represent the interests of the persons really entitled. If the real estate is to be charged, Mahon has nothing to do with the matter. If the personal estate is liable, the two Blakes have nothing to do with it. In this respect the case falls within the principle of the King of Spain v. Machado (n), where a misjoinder of parties, some of the nominal plaintiffs being only the agents of the others, was held to be fatal to the whole suit. On every ground, therefore, the decretal order, reviving and enforcing the former decrees, and those decrees them. selves, are bad, and must be reversed,
Mr. Knight Bruce and Mr. Jacob, for the Respondents :— With respect to the objections in point of form; if at this remote period of the proceedings
(m) 1 Younge & Col. 434.
(n) 4 Russ. 225,