Fordham v Wallis
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1852 |
| Date | 01 January 1852 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 905
HIGH COURT OF CHANCERY
S. C. 22 L. J. Ch. 548; 17 Jur. 228; 1 W. R. 118. See Coope v. Cresswell, 1866-7, L. R. 2 Eq. 120; L. R. 2 Ch. 112; Pears v. Laing, 1871, L. R. 12 Eq. 54; Hunter v. Young, 1879, 4 Ex. D. 261; In re Marsden, 1884, 26 Ch. D. 790; In re Hollingshead, 1888, 37 Ch. D. 655; In re Macdonald [1897], 2 Ch. 184; Astbury v. Astbury [1898], 2 Ch. 118.
£217] fobdham v. wallis. Dec. 2, 3, 4, 6, 1852; Jan. 8, 1853. [S. C. 22 L. J. Ch. 548 ; 17 Jur. 228; 1 W. E. 118. See Goope v. Gresstaell, 1866-7, L. E. 2 Eq. 120; L. E. 2 Ch. 112 ; Pears v. Zamg,. 1871, L. E. 12 Eq. 54; Hunter v. Young, 1879, 4 Ex. D. 261 ; In re Marsden, 1884, 26 Ch. D. 790; In re Boilings-head, 1888, 37 Ch. D. 655; In re Macdonald [1897], 2 Ch. 184; Astbury v. Astbury [1898], 2 Ch. 118.] The testator devised certain estates to trustees for the payment of his debts, and appointed the same trustees his executors, and devised other estates in various portions, some to the same trustees for the separate use of married women for life with remainders over, others to devisees in fee, and others to devisees for life with remainders over in tail, and of some of which estates the testator created terms for raising specific sums of money, and others he charged with legacies and annuities. The testator died in January 1843. On a bill filed in August 1849, by the payee of a promissory note made by the testator (on which it was proved that interest had been paid by the executors up to 1847), for payment of the note out of the real as well as the personal estate, against the executors and trustees, some of whom were insolvent, against the residuary legatees who had received payments on account of their residuary shares, and against the parties beneficially interested in the real estate, of whom some set up the Statute of Limitations in bar of the demand, some omitted to do so, and others were out of the jurisdiction : Held, That payment of interest is an acknowledgment of a debt; and, upon a general acknowledgment of a debt where nothing is said to prevent it, a general promise to pay is to be implied : and such an acknowledgment made by a party filling the two characters of beneficial devisee and executor, will be attributed to both characters and not to one only, for the moral obligation does not attach more to one character than to the other. But it is otherwise where the characters held by the party are entirely distinct, as where he is personally liable as debtor, and is answerable also in the character of executor or trustee of another; for he then represents two persons, and the question in such a case is by whom the promise is made, and not what is its extent or effect. That the payment of interest of a debt of the testator by his executors, they being also trustees of his real estate not subjected by the will to debts, did not necessarily keep the debt alive as against such real estate, for, although the executors and trustees were the same persons, they filled different characters; and where the payment was made by them in the character of executors only, the real estate was not affected by it. That the creditor was entitled to a decree as against the parties beneficially interested in the real estate who had omitted to claim the benefit of the Statute of Limitations. V.-C. Xlii.---29* 906 FOEBHAM V. WALLIS 10 HARE, 218. That the heir or devisees of the real estate of a testator might themselves take proceedings for securing the due application of the personal estate in the payment of the debts, and in exoneration of the real estate; and that they cannot, therefore, after a lapse of time, successfully resist the claim of a creditor, as against the real estate, on the ground of his laches in not suing earlier for the recovery of the debt. That the demand of a simple contract creditor as against the real estate of a testator, which would otherwise be barred by the Statute of Limitations, was not kept alive so as to preclude the operation of the statute, by the effect of any right, which might exist or might have existed among the parties, to have the assets of the testator marshalled. That payments by executors to residuary legatees, whilst the debts of the testator remained unpaid, was a breach of trust; and that, the debts having been kept alive against the executors, the statute was no bar to the claim of the creditor, as against the residuary legatees, to the extent of their interest in the residue, and they must therefore refund the monies they had received on account of the estate. A debt is not to be kept alive against one party by the admission of another, except in cases of continuing joint contract. The existence or non-existence of the demand depends upon the act of the person, and not upon the relative liability of the property. That parties, who being joint and several debtors, had availed themselves of the statute, and have been held liable to debts which the statute would have barred, cannot insist upon contribution from other joint and several debtors, who have protected themselves by setting up the statute from their liability in respect of the same debts-semble. But whatever the right to such contribution may be, it does not entitle the creditor to insist upon its application as against the debtors, who have so protected themselves. A creditor's bill for the administration of the real and personal estate of George Starkins, deceased. The Plaintiffs were the executors of Edward King Fordham ; and the debt on which the suit was founded was claimed to be due upon a joint and several promissory note of [218] George Starkins and George Starkins Wallis, dated the 14th of November 1826, for the sum of £2000 and interest. George Starkins, by his will, dated the 18th of October 1837, devised certain states, called White's and Gate's farms, to George Starkins Wallis, Frederick Chaplin and Frederick Woodham Nash, to the use of those three parties during the life of Sarah Wedd, the wife of Charles Wedd, in trust for her separate use, with remainder, as to Gate's farm, to Sarah, the wife of Thomas Chaplin, for her life, with remainder to her in tail, remainder to her appointment by will, and in default to Sarah Chaplin herself in fee; and, as to White's farm, with remainder to the children of the said Sarah Wedd (except the said Sarah Chaplin and except Elizabeth Chaplin) in tail, with remainder to such uses as Sarah Wedd by will should appoint, with remainder to Sarah Wedd in fee. He then devised two other farms, called the High Laver farm and the Hogg's farm; as to the High Laver farm, to George Starkins Wallis for life, with remainder as to one moiety to Frederick Chaplin and Frederick Woodham Nash, òduring the life of Ann, the wife of Joseph Ellis, afterwards Ann Wright, the wife of A. Wright, in trust for her separate use, with remainder to her children in tail, with remainder to the uses declared of the other moiety in favour of Sarah, the wife of Thomas Hacker Boddy, and to her children, with an ultimate remainder to the right heirs of the survivor of Ann Ellis and Sarah Boddy ; and, as to the other moiety, he devised it to Chaplin and F. W. Nash, during the life of Sarah Boddy, for her separate use, with remainder to her children in tail, with remainder to the same uses as he had before declared of the other moiety in favour of Ann Wright and to her children, and with an ultimate remainder also to the right heirs of the survivor of Ann Wright and Sarah [219] Boddy. He then devised the other farm, called Hogg's farm : and first charged it with an annuity of £100 to James Inkersole; and subject thereto he gave it to Frederick Woodham...
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