Crallan v Oulton
| Jurisdiction | England & Wales |
| Judgment Date | 29 June 1840 |
| Date | 29 June 1840 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 1
ROLLS COURT
S. C. 9 L. J. Ch. 319.
Reports of CASES in CHANCERY ARGUED and DETERMINED in the ROLLS COURT during the time of LORD LANGDALE, Master of the Rolls. 1840, 1841. By CHARLES BEAVAN, Esqr., M.A., Barrister-at-Law. Vol. III. 1842. [1] challan v. oulton. June 25, 26, 29, 1840. [S. C. 9 L. J. Ch. 319.] A testator directed his debts to be paid out of his real and personal estate; and he afterwards provided that if his personal estate should fall short in paying his debts, then he empowered his executors to enter into the receipt of the rents of his freeholds, until the same should be wholly paid oft'. The personal estate was sufficient for payment of the debts. Held, nevertheless, that a trust had been created for payment of the debts out of the realty, so as to prevent the operation of the Statute of Limitations, and that the real estate remained liable to pay a simple contract debt which had been left unpaid after distribution of the residuary personal estate. The testator, James Newton, together with the Defendants John Oulton and James Newton Garside, became jointly and severally indebted to the Plaintiff in the sum of 1000 upon a promissory note, payable on demand, and dated the 21st of May 1825. This note was given for the same amount, then due from James Newton to the Plaintiff upon his sole promissory note. On the 8th of September 1825 James Newton the testator made his will, duly attested as follows:-" I will, order, and direct that all my just debts, funeral expenses, and the charge of the probate and execution of this my last will and testament, be fully paid and discharged by my executors and executrix hereinafter named, out of my real personal estate and effects, [2] as soon as conveniently may be after my decease;" and after making certain devises, he proceeded as follows:-" Provided always nevertheless, and it is my will and mind, that if my said personal estate and effects shall happen to fall short of paying and discharging all my just and lawful debts, funeral, and testamentary expenses; then and in such case, I will, order, and direct, and hereby authorise and empower my said executors and executrix to enter into the receipt of the rents and profits of all my before-mentioned freehold and leasehold messuages, cottages, buildings, lands, tenements, hereditaments, and premises, until thereby and therewith the same shall be wholly paid off and discharged according to the intent and meaning of this my will." The testator died in January 1826, and his will was proved by James Oulton, Henry Wright, James Garside, and Sally Garside, his executors, and executrix, who paid all his debts, except that claimed by the Plaintiff, and divided the residue of the personal estate, which was stated to amount to 3849, amongst the residuary legatees. After the testator's death, Oulton paid the interest on the note down to 1835, the particulars of which he entered in his account book, in the manner stated in the...
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