1841. v. BLAKE. to be done, at the death of the party whose assets 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 (i), 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 (1). 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. (i) P. 143, Case 124. VOL. VIII. Оо (k) 1 P. Wms. 505. 518. บ. BLAKE. 1841. he did not misapply anything whatever. His assets LAWRENCE are made liable for the misapplication which is supposed to have taken place under the Act of Parliament; 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 themselves, 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, any point of this kind should occur, but should not appear to be a substantial answer to the case, this House will assume the form adopted to be the right one, or will hold that the party who ought to have made the objection in 1813, is precluded from making it now. The facts of this case are simply these: Walter Lawrence was one of the trustees under a private Act of Parliament, under which a certain sum of trust money was raised. This trust money was not duly applied, as it ought to have been, to relieve the real estate from the charges which existed upon it. The persons now required to account are those who represent the persons entitled to this charge, from which the real estate ought to have been relieved. They have, in point of fact, substantial rights to be enforced, and they have therefore been properly made parties to the suit. The only question which has any bearing on the justice of the case is that which relates to the application of the outstanding amount of the personal estate. The right to marshal the assets arises as soon as a portion of the personal estate has been applied to pay that for which the real estate is liable. If that is not so, every form adopted in the English Courts of Chancery is erroneous. The Appellants have lost by their own conduct the right to complain of these proceedings. The greatest possible objection to the right of the Appellants here is to be found in the delay of which they have been guilty. The rules of this House strictly limit the time within which an appeal can be brought; and in this case the House will act, with regard to this suit, upon the principle on which those rules are founded. It is true that the younger Appellant did not attain the age of twenty-one till the year 1837, but the elder Appellant attained his majority in 1841. LAWRENCE v. BLAKE. 1841. LAWRENCE V. BLAKE. 1813. His own and his son's rights are founded on the same title, and the delay is a complete bar to the father's proceedings, and affects, by consequence, in an equal degree those of the son. The present appeal was not presented till 1839, that is nearly two years (or the full limit of time for presenting any appeal) after the son came of age, and twenty-six years after the elder Lawrence came of age, and after the first decree complained of had been pronounced. The case of Hamilton v. Houghton is not an authority for the present application. It is true that the House there did not carry into effect the last decree, but it did not reverse the first, nor was it asked to do so. The will, in this case, affected the real estate of Walter Lawrence, though not as against any of his creditors, If the son has had from the first the same interest as the father, then the delay of the father is a bar to the proceedings of the son; if the son has not had such interest, then he cannot complain of what was done before his own interest came into existence. It is assumed that under this will the younger Appellant claims an interest vested long ago, and that that alone makes him a proper party to this suit. He is not affected in the manner supposed by what has already taken place under the settlement of 1791; and as to the settled estates, he had no interest, for his father was the heir; and Jesson v. Wright (o) shows that it may be doubted whether, though he affects to claim an interest, he has, in fact, any interest at all. The devise is to the son of W. Lawrence and the heirs male of his body lawfully begotten, as they shall severally be according to priority of age, &c. Under these words the tenancy in tail went to the father, who, until the birth of his son, had the reversion in fee in himself, and throughout (o) 2 Bli. 1. 1841. บ. BLAKE. represented the whole interest of the estate given by the will of the late W. Lawrence. If so, then the LAWRENCE younger Appellant has no right now to question this decree of 1813 or that of 1822; for his father was then the only person to question them, and he did not think fit to do so. The nature of the Act of Parliament may now be considered. It is there stated, that Nicholas Archdeckne's estate was not sufficient to pay his debts; and to effect that purpose the lands were vested in W. Lawrence and two others, and the survivor of them, and the heirs of such survivor. The words of the will mean that what was not sold for the purposes there stated, shall not be discharged from liability: and thus were reserved in three several parties all the rights and interests which were not sold, which would have been reserved if the Act of Parliament had not passed, and which ought to be so reserved, for neither the minors nor the guardians had consented to the Act. The argument of the land having borne the burden, does not exist here. With respect to the conduct of Walter Lawrence there is a finding to this effect: "I find that Walter Lawrence, one of the said trustees, has received a sum of 10,000 l. for the sale of part of these estates, and that 3,000l. of these 10,000l. have been misapplied by him." In Gugelman v. Duport (p), this case occurred: T. D. by her will devised an estate to her grandson, upon condition that he first pay to her granddaughter 1,000l. at the age of 21, or marriage, and charged the estate herewith; and empowered the executor to raise the same out of the rents and profits of the estate, and to keep the same in his own possession till it should be paid; and, in the meantime, to pay her interest, to commence after the pay(p) Cas. temp. Hardw. by West, p. 577. |