Dickinson v Teasdale
| Jurisdiction | England & Wales |
| Judgment Date | 09 December 1862 |
| Date | 09 December 1862 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 21
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 1 N. R. 141; 32 L. J. Ch. 37 9 Jur (N. S.), 237; 7 L. T. 655. See Coope v. Creswell, 1866, L. R. 2 Eq. 120; L. R. 2 Ch. 126; Cunningham v. Foot, 1878, 3 App. Cas. 993.
[B2] dickenson v. teasdale. Before the Lord Chancellor Lord Westbury. H. t: 43 7. Dec- 9' 186a- W' 'A ** * '- ' f[S. cfY N. R. 141 ; 32 L. J. Ch. 37; 9 Jur. (N. S), 237; 7 L. T. 655. See Coope v. Creswll, 1866, L. R. 2 Eq. 120; L. R. 2 Ch. 126; Cunningham v. Foot, 1878, 3 App. Gas. 993.] A testator by his will charged all his real estate with payment of his debts, if his personal estate was insufficient to pay them, and directed his executors to raise sufficient for their payment by mortgage or otherwise. Held, that this did not create an express trust within the exception contained in the Statute of Limitations, 3 & 4 Will. 4, c. 27. An acknowledgment by a devisee does not prevent his co-devisee from pleading the statute. It is sufficient to plead the 3 & 4 Will. 4, c. 27, to a bill seeking the benefit of a trust without also pleading the statute 3 & 4 Will. 4, c. 42. This was an appeal from the decision of the Master of the Rolls, holding that a direction to executors to raise money to pay debts did not create an express trust so as to be within the exception in the Statute of Limitations, 3 & 4. Will. 4, c. 27. The Plaintiff claimed to be a bond creditor of John Teasclale the testator in the cause. The bond was dated the 9th of November 1810, arid was conditioned for payment to William Robson, his executors, administrators or assigns, of a aum of 430, 15s., with interest. [B3] The testator by his will dated the 30th of January 1811 devised to his nephew the Defendant John Teasdale, his heirs and assigns for ever, a certain part of the testator's real estate at Farlam in the county of Cumberland, subject to the payment of the several annuities, legacies and bequests thereinafter bequeathed ; and after bequeathing certain annuities and legacies, the testator charged the above part of the said premises with payment of half his just debts and funeral expenses in case his personal estate should fall short, and with the payment of one-half of the mortgage money and interest then charged upon the whole of his real property, and also with the payment of one-half of the annuities and legacies thereinafter given to his nephews Joseph Teasdale and James Teasdale. And the testator devised unto his nephew Henry Proud, his heirs and assigns for ever, all the remaining part of the testator's real estate at Farlam, subject to the payment of the several annuities, legacies and bequests thereinafter given and bequeathed; and after bequeathing curtain other annuities and legacies, the testator charged the last-mentioned part of the premises with payment of half his just debts and funeral expenses in case his personal estate should fall short, and with the payment of one-half the mortgage money and interest then charged upon the whole of his real property, and also with the payment of one-half of the annuities and legacies thereinafter given to his nephews Joseph Teasdale and James Teasdale; and after bequeathing certain annuities and.legacies to Joseph Teasdale and James Teasdale, the testator bequeathed all his personal estate unto and equally to be divided between John Teasdale the younger and Henry Proud, subject to the payment of the testator's just debts and funeral expenses, and the probate of his will; and in case the same should be found insufficient for that purpose, then the testator [54] charged all his real estate, whatsoever, with the payment thereof, and directed his executors thereinafter named to raise such sum as might be sufficient by mortgage or otherwise of his said real estate; and he appointed Sarah Proud, Robert Hodgson and William Hutchinaon executrix and executors of his will. 22 DICKENSON V. TEASDALE 1DE 0. J. & 8. W. The testator died on the 1st of April 1811, and, Eobert Hodgson and William Hutchinson having respectively renounced probate, Sarah Proud alone proved the will on the 10th of August 1811. The testator's personal estate was insufficient to pay, and was exhausted in paying, big funeral and testamentary expenses. Upon his death, John Teasdale the younger and Henry Proud entered into and had retained possession of the respective portions of the real estate devised to them by the will. William Robson died in May 1830, having by his will appointed his daughter, the Plaintiff Mary Dickenson, his sole executrix, and she had proved the will. On the 28th of October 1848 Sarah Proud died, having survived her co-executors, and at the date of the institution of the suit there was no legal personal representative of the testator John Teasdale. The aum of 430, 15s. due upon the bond remained wholly unpaid; but the bill alleged that John Teasdale the younger from time to time made divers payments on account of the interest on the bond, the last of such payments being made on the 12th of February 1845, and that on the 9th of December 1857 Henry Proud paid [5B] a sum on account of the interest on the bond : and, further, that a sum of JE1350 was due to the Plaintiff from the Defendants for principal and arrears of interest upon the bond debt. The bill charged, that according to the true construction of the will of John Teasdale a trust was thereby created for payment of his debts out of the real estate thereby devised, and that the Defendants John Teasdale the younger and Henry Proud, upon taking possession of the testator's real estates, became and remained thereafter bound to execute such trust, and that the same ought to be executed for the benefit of the Plaintiff under the direction of the Court. Further, that if the will did not create a trust for the payment of the testator's debts out of his real estate, such debts were thereby made a charge upon such real estate, and that such charge had been kept alive for the benefit of the Plaintiff by the above-mentioned payments on account of the interest of the bond debt. The prayer of the bill was, that the Defendants John Teasdale the younger and Henry Proud might pay to the Plaintiff the bond debt of 430, 15s., and the arrears of interest payable in respect thereof and the costs of the suit, or that all proper directions might be given for raising such bond debt, interest and costs out of the real estate devised to the Defendants by the will of the testator John Teasdale, and for a receiver, if necessary. To the relief sought by this bill, other than and except such parts of the bill and interrogatories as sought a discovery as to the payments alleged to have been made by Henry Proud on the 9th of December 1857, on account of the interest on the bond debt, the Defendant Henry Proud pleaded the Statute of Limitations, 3 & 4 [56] Will. 4, c. 27, and averred that neither he nor any agent of his made any payment or acknowledgment within twenty years before the filing of the original bill in the suit; and with reference to the part of the bill not covered by the plea, he answered admitting a payment of 5 to the Plaintiff's son on the 9th of December 1837, but not on account of the bond bebt. The plea came on for argument before the Master of the Rolls on the 8th of November 1862, and was allowed by His Honour. The case is reported in the 31st Volume of Mr. Beavan's Reports (page 511). The Plaintiff appealed. Mr. Kay, for the Appellant. The first question is...
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