Robert Burrowes and Others, - Appellants; Thomas Gore and Others, - Respondents

ROBERT BURROWES and Others,-Appellants; THOMAS GOR^and""Others,-* Respondents [May 19, 20, 22, 25,1857, April 19, June 1, 3,11, 1858]. [Mews' Dig. vi. 1731. S.C. 4 Jur. N.S. 1245 ; 6 W.R. 699. See Mutlow v. Bigg, 1874, L.R. 18 Eq. 248; and Trustee Act, 1888 (51 and 52 Viet. c. 59), s. 8.] Bond-Settlement-Trust-Circuity of Suit-Statute of Limitations. By the marriage settlement of R. B. in 1767 there was (in addition to other things) a sum of 1500, secured for the portions of younger children of the marriage, to be apportioned as he might think fit. In 1806 his daughter (a younger child) married G. G.,and on occasion of that marriage R. B. executed two bonds to secure payment of two sums, 1000 and 500, payable on his death, the former not to bear interest till his death; the latter to bear interest from the 1551 VI H.L.C., 908 BURROWES V. GORE [1857-58] execution of the bond. These bonds were accompanied by warrants of attorney, on which, however, judgments were never entered up. On the same day a, marriage settlement was executed, which vested these two bonds in T. B. (R. B.'s son and heir-at-law) and J. H. C. as trustees (they being so described in the bonds themselves) on trust, to pay the interest to G. G. and his wife during their lives, and after their deaths in [908] trust for the children of the marriage, in such shares as G. G. should appoint; otherwise equally. No appointment was made. In 1807 T. B. married, and on his marriage a settlement was executed, by virtue of which the estates of R. B. were conveyed to trustees for the term of 300 years on certain trusts, one of which was to raise a gum of 5000, and apply the same in the first instance to pay the 1500 the portions for R. B.'s younger children, and the rest to the payment of such specialty debts as " are now due and owing " by R. B.; and if there should be any residue, to pay over the same to R. B. Subject to this term, the estates were conveyed to R. B. for life, to T. B. for life, and to the first and other sons of T. B. in tail male. R. B. died in 1816, and T. B. entered into possession of the estates. R. B.'s widow took out probate of his will, and received general assets to the amount, of 7500. T. B. died in 1836. Interest on the sum secured to G. G. was paid, during his life, by the agent of T. B., and of his. son R. B. the younger, who had succeeded under the settlement of 1807 to the estates. A part of the sum of 5000 was raised in 1844:, and the 1500 secured by the settlement of 1767, as portions for younger children paid off, but the 1500 secured by the bonds were not raised. In 1846 G. G. died. There was no evidence of payment of interest after his death. In 1848 the children of G. G. filed their bill against R. B. the younger, R. G. (one of their brothers, who for the purposes of the suit had taken out administration de borvis non to R. B. the elder), and against the possessor of the term, praying that the money secured by the bonds might be satisfied out of the town, etc. An inquiry and accounts were directed, and a report made and confirmed on farther directions. An appeal was then brought against the original decree and this decree on farther directions: Held, that under the special circumstances existing here the suit was maintainable; that though the personal representative of R.B. the elder was primarily answerable, yet, as the trustees of the bond debt could only sue the person in whom the term was now vested, as that person must then sue R. B. the younger as holder of the estate which was subject to the term, and as R. B. the younger besides being the holder of that estate, was; also the representative of T. B. the trustee of the bond debt under the settlement of 1806, a Court of Equity, seeing that all the parties really interested were before it, would not, especially after an inquiry and report, dismiss the bill for matter of form, and thus create a necessity for such a multiplicity of needless suits. Held also, that the settlement of 1806 created a trust in respect of the bond debt; that that debt was not within the words of the settle-[909]-ment of 1807 a debt of R. B., then " due and owing," but that it would have been so had the ;rustees performed their duty by entering up judgment on the warrants of attorney, and that their neglect in this respect could not be set up as a defence by R. B. the younger, as the owner of the estate, he himself being also the representative of the surviving trustee, and, as such, bound to obtain payment of the money secured by the bond. Per Lord St. Leonards. These bonds were equitable charges on the land. Held (Lord Wensleydale diss.), that the Statute of Limitations, 3 and 4 Will. 4, c. 27, did not operate as a bar to this suit, an express trust of a charge upon land being by the true construction of that statute as much saved from its c peratioti as an express trust of the land itself; and as Robert Burrowes the younger represented his father (the surviving trustee of the bonds), and was himself the owner of the estate out of the term in which these bonds were by the trusts cf the deed of 1807 to be satisfied, he was at once the hand to pay, and the hand to receive, and he therefore could not set up the statute as his defence for not performing the trust. 1552 BURROWES V. GORE [1857-58] VI H.L.C., 910 Held also, that the right of these cestuis que trust did not arise till the death of G. G. in 1846, and that as they had brought their suit within two years afterwards, the 3 and 4 WilL 4, c. 27, did not in fact apply to them. On the marriage in 1767 of Robert Burrowes the elder an estate was settled on him for life, remainder in tail to the eldest son of the marriage, subject to a charge of 1500 for the younger children of the marriage. Robert Burrowes the elder was also entitled in absolute ownership to certain other lands which were not put into settlement. Thomas Burrowes was the eldest son of this marriage. There were four other children of the marriage, all daughters, of whom it is only necessary to refer to Anne Burrowes. In 1806 Anne Burrowes was married to the Honourable and Rev. George Gore, and on the 31st March in that year Robert Burrowes the elder executed two bonds {in which Thomas Burrowes his son and J. H. (Nottingham, Esq., were the obligees, and were described " as trustees in the marriage settlement" of the same date), the first bond for the sum of 1000, payable upon the day of the death of the [910] obligor, which sum was not to bear interest until that day, and the second bond for the sum of 500, payable on the same day, but which was to bear interest from the date of the bond. A warrant of attorney was executed at the same time in respect of each bond, but no judgment was ever entered up on either of them. On the same date as the bonds, R. Burrowes executed (but whether before or after the moment of their execution was not proved) a marriage settlement, by which the two obligees of the bonds, Thomas Burrowes and J. H. (Nottingham, were appointed trustees under the settlement; and these two sums were declared to be vested in them as trustees to pay the interest to Mr. and Mrs. Gore for their respective lives, and after the death of the survivor of them to divide the principal among the children of the marriage in such shares as Mr. Gore should by deed or will appoint, and, in default of such appointment, equally. There were seven children of this marriage, Thomas, Robert, George, Anne, Frances, who became the wife of Mr. Sankey, Sophia, who married Mr. Turbett, and Louisa, married to Mr. Waldron. In October 1807 Thomas Burrowes (the obligee in the bonds and the trustee in Mr. Gore's settlement), the only son of Robert Burrowes the elder, married Miss Seward, and on his marriage the estate tail to which he was entitled under his father's settlement, and the estates which his father held in absolute property, were made the subject of settlement. All those estates were conveyed to the Rev. Joseph Storey and John French, their executors, etc., for the term of 300 years, and subject thereto to the use of Robert Burrowes the elder for life, remainder to Thomas Burrowes for life, with remainder to the first and other sons of Thomas Burrowes in tail male, according to the usual course of family settlements. The trusts of the term were, that " the trustees shall, as soon as convenient, by mortgage, [911] sale, demise, etc., of all or any part of the premises comprised in the term, etc., raise 5000 sterling Irish currency and the interest thereof, and apply .the same for the purposes following: in the first place, to pay 1500 to satisfy the sum secured on the marriage of Robert Burrowes the elder in 1767, as portions for younger children, so that the premises comprised in the term should be exonerated from the same; next, to " apply the remainder of the sum of 5000 towards payment of such judgment and specialty debts as are now due and owing by the said Robert Burrowes [the elder] in such order, course, and precedence as he, Robert Burrowes, his executors or administrators, may think proper; and in case there shall be any redundancy of the said sum of 5000," to pay the same to him. Provided that in case the person to'whom the next estate of freehold in the premises comprised in the term of 300 years should belong, should pay to Story and French, their executors, etc., the 5000 and interest and costs, then the term was to be void. This term came by subsequent events to be vested in Mrs. Olivia Caulfield. Recoveries of the lands comprised in this settlement were soon afterwards suffered to the uses of the settlement. There...