Burke v Jones
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1813 |
| Date | 01 January 1813 |
| Court | High Court of Chancery |
English Reports Citation: 35 E.R. 323
HIGH COURT OF CHANCERY
See Hargreaves v. Michell, 1822, 6 Madd. 326; O'Connor v. Haslam, 1855, 5 H. L. C. 178.
[275] burke v. jones. Nov. 2, Dec. 6, 1813. [See liar greaves v. Michell, 1822, 6 Madd. 326; O'Connor v. Haslam, 1855, 5 H. L. C. 178.] Devise in Trust for Payment of Debts does not revive a Debt, upon which the Statute of Limitations had taken Effect by the Expiration of the Time before the Testator's Death. Under a Decree, directing the usual Accounts of the personal Estate, Debts, &c., of the Testator Andrew Robinson Bowes, the Master's Report stated, that the Testator was on the 16th of June 1787, committed to the King's Bench Prison on the Prosecution of the King; and continued in such Custody under the said Commitment and subsequent Detainers of Creditors until his Death, on the 16th of 324 BURKE V. JONES 2V. &B. 276. January 1810 that by his Will, dated the 12th of April 1809, he gave to Trustees, their Executors, &c., all his ready money, &c., personal Estate and Effects ; upon Trust as soon as might be to convert the same into Money, and thereout to pay, discharge and satisfy, so far as the same would extend, all his just Debts, Funeral Expences and Legacies ; and the Residue (if any) he gave to his Son William Johnstone Boives. The Testator also devised all his Messuages, Lands, &c., to the Use of the same Trustees, their Heirs and Assigns ; upon Trust by Sale or Mortgage to raise such Sums as should he necessary to pay such of his Debts, Funeral and testamentary Expences and Legacies, which the Monies to arise from his personal Estate should not be sufficient to pay ; which Sums the Trustees were directed to apply and dispose of in Payment and Discharge of his said Debts, &c., which his personal Estate should not be sufficient to satisfy. The Master farther stated, that no Action or other Proceeding was ever brought, or any of the Debts in the Schedule to his Report j that no Promise to pay the same was ever made by the Testator after the Statute of 21 James I, [276] c. 10, had barred them ; and that all the said Debts were barred by the Statute at the Death of the Testator : but, though it had been insisted before him, that, as the Testator was a Prisoner in the King's Bench during the Time aforesaid, all Proceedings against him would have been fruitless, and that as he had by his Will created a Trust for the Payment of his Debts all the saidsDebts were thereby revived and taken out of the Statute, he refused to permit the Creditors contained in the Schedule to prove. To this Report the Creditors took an Exception ; contending, 1st, That a Devise in Trust to pay Debts will revive Debts barred by the Statute of Limitations ; Anon. Salk. (1 Salk. 154), Andrews v. Brown (Free. Ch. 385 ; 2 Eq. Ca. Ab. 579 ; Gilb. Eq. Rep. 41), Blakeway v. Earl of Strafford (2 P. Wms. 373 ; G Bro. P. C. 630, Ed. 2 ; Sel. Ca. Ch. 57. See 29), Staggers v. Welby (cited 2 P. Wms. 374), Jones v. Earl of Strafford (3 P. Wms. 79), Lacon v. Briggs (3 Atk. 107), Oughterloney v. Earl Powis (Amb. 231), Executors of Fergus v. Gore (1 Sch. & Lef. 107), Ex parte Dewdney, Ex parte Seaman (15 Ves. 477. See 497). 2dly, That under the particular Circumstances of this Case these Creditors ought to have been permitted to prove. Mr. Richards, Mr. Wetherell, and Mr. Shadwell, for the Parties interested in the Estate : Mr. Home, for the Trustees. Though the general Question, whether a Devise in Trust to pay Debts revives a Debt, barred by the Statute [277] of Limitations, has been noticed in many Cases, this is the first Time it has called for Decision. It is clear that the Testator might have pleaded the Statute of Limitations ; and it must be admitted, that, if the personal Estate is sufficient to pay the Debts, the Executor or Administrator may insist on the Statute as well in the Master's Office as in an Action at Law. A Direction to pay Debts cannot let in a Creditor on the personal Estate ; where that is the only Fund ; and there is no Reason why the Introduction of real Estate into the Devise should make any Difference. In the Anonymous Case in Salkeld the Circumstances do not appear : nor is the abstract Proposition, there stated, merely as a Dictum, the Law of this Court. Andrews v. Brown is no Decision of this Point. Blakeway v. The Earl of Strafford, on a Devise to Executors, is very briefly stated ; and on the Face of it bears strong Marks of Inaccuracy. The Debt was not barred : the Payment of £50 in Part having taken place within six Years before the Testator's Death. Whatever might have been the Weight of that Decision, the House of Lords afterwards over-ruled it ; reversing the original Decree, and ordering the Plea to stand for an Answer, with very special Directions (see Mr. Cox's Note, 2 P. Wms. 376); and after that Decision there is no farther Account of the Case. In Lacon v. Briggs Lord Hardwicke's Opinion is inconsistent with what he said in Oughterloney v. Earl Powis. The Executors of Fergus v. Gore, and Ex parte Dewdney, are strong Authorities against this Claim ; and Lord Kenyan, Lord Alvanley, Lord Redesdale, and Lord Eldon, have at different times questioned the Existence of any such Rule, that a Devise to pay Debts will take Debts out of the Statute of Limitations. Though the Decision of Jones v. Earl of Strafford affects to follow Blakeway v. Earl of Strafford, the Cases differ widely : the former having no such Pay-[278]-ment within six Years as the latter, nor any Circumstance taking it out of the Statute. In Gofton v. Mitt (2 Vern. 141; Pre. Ch. 9), the Will expressly recognized the 2 V. & B. 279. BURKE V. JONES 325 Debt; though the Testator mistook its Amount. Legastick v. Cowne (Mos. 391), is a direct Decision of the Point by Lord Macclesfield against this Exception. Dec. 6. The Vice-Chancellor. The Question upon this Exception is, whether by this Will, first giving the personal Estate in Trust for the...
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