Jones v Scott
| Jurisdiction | England & Wales |
| Judgment Date | 26 February 1830 |
| Date | 26 February 1830 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 98
HIGH COURT OF CHANCERY
See S. C., reversed on appeal (sub. nom. Scott v. Jones), 4 Cl. & Fin., 382.
[255] jones . scott. Feb. _ 6, 1830. [See S. C., reversed on appeal (sub. nom. Scott v. Jime-i), 4 Cl. & Fin., 38:2.] A trust for the payment of debts in a will of personal estate will prevent the operation of the Statute of Limitations. Senible, that notice in a newspaper by a personal representative, that he will pay all debts justly due from his testator, will prevent a debt from being barred by the Statute of Limitations. But xembh, a debt is not taken out of the Statute of Limitations by an advertisement published by the administrator, requesting all persons having claims on the estate to send in statements of their demand, prior to their boiiitf laid before A. B., 1 RUSS. & M. JB6. JONES I'. SCOTT J9 by whom the persons claiming to be creditors are to .submit to be examined touching the same, if he shall see occasion, in order to their being approved a.iul paid, or rejected, if such latter course be deemed expedient. In November 1815, Richard Donovan, Esq., barrister-at-law, made his will, not dated, but executed and attested in such manner as to pass freehold estates by devise ; and thereby, after reciting, amongst other things, that he was seised in fee (jf an estate at Tibberton, he gave and devised all his real estates at Tibberton, or elsewhere in England, and all his personal estates in England, or in the West Indies, or elsewhere, of every kind, unto and to the use of Thomas Hodie and William Montague, and their heirs, executors, and administrators, upon trust to collect and get in all his personal estate, and pay his debts thereout, if the same should be enough for that purpose ; and as to bis estate called Tibberton Court, and every part thereof, except the advowson of Tibberton, upon trust to let the same ready furnished, and to pay the proceeds thereof in the manner following, that is to say, the sum of 150 per annum to his wife, Caroline Elizabeth Donovan, being the interest of =3000, part of her settlement, which was vested in the purchase of the Tibberton Court estate, and as to the remainder thereof, in trust to pay the same to his daughter Caroline Anne Donovan during her life, her receipt alone to be a .sufficient discharge; and in case his personal estate should be enough to pay his debts, without having recourse to selling his wine, linen, plate, and books, then he gave his wine and linen to his wife, absolutely, for her own use; but in case his personal estate should not be enough to pay oft' and discharge his debts, [256] then he directed his trustees to sell all his personal estate of every kind, except his linen, which he gave to his wife as before, and also to sell the next presentation to the rectory of Tibberton, to enable them to pay oft' all his debts ; and in case his debts could not be paid oft and discharged from all his personal estate, then he directed that his real estate at Tibberton aforesaid, devised to his said trustees, should be either mortgaged or sold, as his trustees should think best for his family, for the purpose of discharging his debts; and subject thereto, he devised the estate, in case he should die without leaving issue male, to his daughter Caroline Anne Donovan for her life, with remainder to her first and other sons in tail male. The testator died in July 1816. Thomas Rodie proved the will, and died in 1818. The daughter had not then attained the age of twenty-one years; and letters of administration '/ Ionia -non, with the will annexed, during her minority, were granted to her husband, the Defendant Scott. In 1819, she attained her full age, and procured letters of administration of the unadmiuistered effects of her father, with his will annexed. In January 1822, Mrs. Scott published in the Gloucester newspaper an advertisement in the following words:-" Notice is hereby given by me, Caroline Anne Scott, of Tibberton Court, in the county of Gloucester, administratrix, with the will annexed, of my late father, Richard Donovan, of Tibherton Court aforesaid, and of the city of Gloucester, Esq., barrister-at-law, to all persons having or claiming to have any demand upon the estate of the said Richard Donovan, by specialty or otherwise, that they send in their several and respective [257] statements of their demands, and also attested copies of their several and respective securities, to Messrs. Clark, Richards, & Metcalf, solicitors, 109 Chancery Lane, London, or to Mr. Bubb, solicitor in Cheltenham, in the county of Gloucester, on or before the 24th day of April next, for their examination prior to the same being laid before John Hawksey Achcrley, of the city of Bath, Esq., barrister-at-law, by whom I expect that the persons claiming to be creditors of the said Richard Donovan do submit to be examined touching and concerning the same, if the said John Hawksey Ache.rley shall see occasion, in order to their respective claims being approved and paid, or rejected, if such latter course be deemed expedient. Timely notice as to time and place will be given in the Lon/lon Gii^Mf, and in the Gloucester and Liverpool papers." The general personal assets of the testator having been found to be not nearly sufficient for the payment of his debts, steps were taken to sell the Tibberton Court estate; and it was then discovered that the testator's interest in the property, instead of being freehold, as he had imagined, was only leasehold for a long term of years. In October 1822, the estate was sold under the trusts of the will for .10,500. 100 JOXES V. SCOTT 1 KUS3. & M. 288. The Plaintiffs were creditors of Richard Donovan on the balance of a banking account, which had been ascertained in 1815. In compliance with the advertisement, which had appeared in January 1822, they, in April following, sent in a statement of their demand to Mr. Bub)); and, no notice being taken of it, they, in .July 182.'!, commenced an action in the Common Pleas against the administratrix and her husband. That action was met, on the part of the Defendants, by a plea of the Statute [258] of Limitations, and was shortly afterwards discontinued. The Plaintiff's then, in 1824, filed the present bill, on behalf of themselves and the other creditors of Richard Donovan, praying, among other things, that the trusts of his will for the payment of his debts might be carried into execution under the decree of the Court. The Defendants, by their answer, insisted on the Statute of Limitations as a bar to the relief. At the hearing two questions were raised. First, Whether the devise of the Tibberton leasehold estate in trust to pay the testator's debts would prevent the Statute of Limitations from running against these debts? Secondly, Whether the advertisement, published by the administratrix in January Ib22, took the case out of the Statute of Limitations? Mr. Pemberton and Mr. Farrer, for the Plaintiffs. This debt at the testator's. death was a valid subsisting demand, not barred by the statute ; and a trust or charge, created by will for the payment of debts, prevents the statute from running-against such debts as were not barred in the testator's lifetime (Hurke v. 2 V. & B., 275 ; Hut/lies \. Jl'i/nw, 1 Turn. & Russ., ,'!07 ; Harr/reawx v. 6 Mad., 32G). This is a consequence which follows from the nature of a trust, and is not dependent on the nature of the property which is the subject of the trust. Whether the property be realty or personalty, the result must, as to this point, be the same. In Andrew* v. Brown (Prec. in Chan., .'!86) it was held that, "if the debtor had' made his will, and directed that all his debts should lie paid, or made any provision for the payment [259] of his debts in general, this would revive such a debt, and bring it out of the statute, so that his executors would be liable to the payment of that debt amongst the rest." The advertisement calls on all persons, having claims on the testator, to bring-in statements of their demands by a certain day, in order to their being approved and paid, or rejected. In...
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