1843.-Burrell v. The Earl of Egremont. estate. In the absence of evidence, the presumption is, that he pays the charge for his own benefit, and not for the benefit of the persons entitled in remainder; but evidence may show the contrary conclusion to be true. A tenant for life paying off a charge upon the estate, and in the same transaction merging the security, by taking an assignment connecting it with the legal estate of inheritance, prima facie puts an end to the charge; but something is required to manifest an intention to exonerate the inheritance. A simple payment of the charge, without more, is sufficient to establish the right of the tenant for life to have the charge raised out of the estate. He has no obligation or duty to make a declaration, or to do any act demonstrating his intention; the burden of proof is upon those who allege that in paying off the charge, he intended to exonerate the estate. A. B., being tenant for life of the testator's real estates, subject to a charge of 25,000l., and absolutely entitled to the residuary personal estate, paid off the charge, and obtained releases. At the time, he seemed to have conceived that, as residuary legatee, he was liable to pay the amount out of the personal estate, which was sufficient for that purpose. Nothing was done to keep the charge on foot. After the death of the tenant for life, it being determined that the 25,000l. was a primary charge on the real estate: Held, that it still subsisted as a charge on the settled estates, for the benefit of the personal representatives of the tenant for life. In 1773, a tenant for life paid off a charge of 25,000l. affecting the settled estates. He died in 1837, having in the meantime taken no steps for keeping the charge alive. Held, that notwithstanding more than twenty years had elapsed, and that there had been no part payment or acknowledgment, the charge still existed in favor of his representatives, and had not been defeated by the statute of limitations, (3 & 4 W. 4, c. 27, s. 40.) Held, also, that the statute cannot be applied to a case, where there is no assignable person liable to pay the charge, no person who, by the delay, could be induced to suppose that the charge was abandoned or merged, and where the rent, out of which the interest of the charge ought to be paid, is receivable by and belongs to the same person who is entitled to the interest. Principles on which this court assumes that a tenant for life, who is also the owner of a charge on the inheritance, has duly discharged his duty of keeping down the interest on the charge. THE question in this cause was as to the right of the legal personal representatives of a tenant for life of real estates [*206] to recover, as against the remainder *man, the amount of charges upon the estate which had been paid off by such tenant for life. The circumstances which gave rise to the question, were shortly as follows: By the marriage settlement of Charles Earl of Egremont, dated in 1750, a term of years was vested in trustees for the purpose of 1843.-Burrell v. The Earl of Egremont. raising, out of an estate in Yorkshire, the sum of 25,000l. for the portions of his younger children. By his will, dated in 1761, Charles Earl of Egremont, appointed this 25,000l. for the portions of his younger children, and gave directions as to the payment of interest and the time of payment, and provided that if any younger son should become an eldest son, or if any younger son or daughter should die without issue, before the time of payment, his or her portion should sink into the inheritance charged therewith [*207] and not be raised or paid. He then devised his estates in Somerset, Dorset, and Cornwall (subject in the first place to the raising and paying the annuities and sums of money then affecting the same, or thereinafter charged thereon by that his will, or any codicil he should thereafter think fit to add thereto,) unto his eldest son George, and his assigns, for life, with various remainders over, under which the defendant, the present Earl of Egremont, had become entitled to the estates in possession. He then gave as follows:-"I give and bequeath to my daughters Elizabeth and Frances the sum of 10,000l. a-piece, and to my sons Percy Charles and Charles William 25007. a-piece, which several portions I will shall be in augmentation of, and as an addition to, the portions already provided for them by my said marriage settlement, and herein before appointed to be paid to them as aforesaid, and shall be raised and paid to my said sons and daughters respectively, at such times, and under such conditions, and subject to such contingencies, and with such interest, as I have before directed and appointed their original portions to be raised and paid by this my will. And I do hereby subject and charge my manors, &c., and hereditaments in the several counties of Somerset, Dorset and Cornwall herein before by me devised to my eldest son, with the raising and paying the said portions and sums of money to my said sons and daughters respectively, at the times, and in the manner aforesaid." After gifts of the mansion houses, and of an annuity of 300%., and of certain personal estate as heir-looms, the testator gave certain pecuniary legacies, which he directed to be exclusively paid out of certain particular parts of his personal estate. And then he gave all the residue of his personal estate, after payment 1843.-Burrell v. The Earl of Egremont. of his debts and funeral expenses, and the legacies [*208] *aforesaid, to his eldest son; and he added a proviso, that if his personal estate should not extend to pay such of his debts as should not be charged on his real estate, and his said funeral expenses and legacies, then he charged his estates in Somerset, Dorset, and Cornwall, in aid and to make good any deficiency that might happen in his said personal estate. "And for that end and purpose," he empowered the trustees to raise by sale or mortgage of the estate, and pay, "not only the sums of money and portions thereinbefore by him charged and secured on the said premises, for his younger children, and such deficiency as should happen in his personal estate to pay his debts and legacies," but also such sums of money as should be necessary for the other purpose in his will mentioned. Earl George attained his age of twenty-one in the year 1772, and in May, 1773, he, out of his own moneys, paid the original and additional portions of his sister Lady Elizabeth, and on that occasion the real and personal estate of Earl Charles were released. (a) In 1775, Earl George, out of his own moneys, paid the original and additional portions of Lady Frances, and obtained a release, as heir of the body and executor of his father.(a) In 1778 and 1781 respectively, he in like manner paid the original and additional portions of Percy Charles, and Charles William, who thereupon executed releases. (a) During his life Earl George did not indicate whether he intended the additional charges paid off by him to merge for the benefit of those entitled in remainder or not. Earl George died in 1837. By his will he, amongst other things, devised his hereditaments in the counties of Wilts, [*209] Somerset, Devon, Dorset, and Cornwall to the defendant Earl George Francis, and the heirs male of his body, and in default of such issue, unto the persons, and for such estates, as the estates in the same counties were, by the will of Charles Earl of Egremont, devised, after failure of the heirs male of his body. (a) The deeds executed on these occasions are more fully stated in the judgment of the M. R. post, 227, 228, 229, 230. 1843.-Burrell v. The Earl of Egremont. This bill was filed by the legal personal representatives of George Earl of Egremont, seeking to have the 25,000l. bequeathed, in addition, by the will of Earl Charles to his younger children, and which had been paid by George Earl of Egremont to his brothers and sisters, raised out of the real estates of which he had been tenant for life, and to which estates the present Earl had now become entitled. The defendant resisted this claim on three grounds; first, he said, that the sum of 25,000l. was a mere legacy, primarily charged on the personal estate of Charles Earl of Egremont, admitted by all parties to have been sufficient for its payment; and that as it was charged, on the real estate as an auxiliary security only, and had been properly paid out of the personal estate, the residuary legatee had no right to a reimbursement. Secondly, that even if it were primarily charged on the real estate, still George Earl of Egremont did not intend, when he paid it off, to keep it alive, but to have it released, and that it had been released accordingly. Thirdly, that if the right claimed by the plaintiffs ever existed, it was now barred by the statute of limitations. Mr. Pemberton Leigh, Mr. Turner, Mr. Lee, and Mr. Piggott, for the plaintiffs. The first question is, whether this 25,000l. is a primary charge on the real estate. It is to be observed, that throughout the will of Charles Earl of Egremont, there is a marked distinction preserved between legacies and portions. The [*210] original sum of 25,000, and the additional sum of 25,000l. are called "portions," the other sums are called "legacies." The portions are to be "raised" and paid, terms peculiarly applicable to a charge on realty. The devise of the real estate is subject to the "raising" of the sums thereinafter charged, and the testator afterwards expressly "charges" his manors, &c., "with raising and paying the said portions or sums to his said sons and daughters;" besides this, the gift of the personal estate is subject to the debts and "legacies," but not to the portions; and the charge in aid is only for the debts and legacies, and not for the portions. Again, the additional portions of 25,000l. are to be raised and VOL. VII. 23 1843.-Burrell v. The Earl of Egremont. paid to his said sons and daughters, respectively, at such times and under such conditions, and subject to such contingencies, as the original portions; so that if a child died without issue under twenty-one, the portion was to sink into the inheritance, which would not be the case if it were a mere legacy out of the personal estate. Where there is an additional bequest, it is subject to the same incidents and contingencies, and is payable in the same manner, and out of the same fund, as the original gift; Crowder v. Clowes. (a) On the first point they cited Reade v. Litchfield,(b) Bootle v. Blundell, (c) Kirke v. Kirke, (d) Shipperdson v. Tower,(e) Williams v. The Bishop of Landaff,(g) Jones v. Bruce.(h) Secondly, where a person seised in fee or in tail pays off a charge on the estate, it depends on his intention whether [*211] *the charge is kept alive or not; if it be a matter of indifference, and he has expressed no intention on the subject, the charge is held to have merged; but where a party dies without any indication of his intention, the court considers what would be most beneficial to him, and it is immaterial whether at law the charge has merged or not; Forbes v. Moffatt :(i) though it be merged at law, still it may be subsisting in equity. Here the party was not the owner of the estate, but was merely tenant for life; the presumption, in such a case, is in favor of the charge being preserved, and the onus of proof of the contrary lies on the remainder man. It is not sufficient to show a vague intention, but the court must be satisfied that the tenant for life relieved the estate from the charge, with the intention of never claiming it, and, that, in fact, he intended to make a present of the amount of the charge to the remainder man. In Drinkwater v. Combe,(k) Sir John Leach said, "if a tenant for life pay off a charge upon his estate, the amount becomes a part of his personal property, unless he manifests an intention that it shall not do so." In Trevor v. Trevor,(l) a tenant for life in remainder redeemed the land (a) 2 Ves. jun. 449. And see Day v. Croft, 4 Beav. 561, and the cases there referred to. (b) 3 Ves. 474. (c) 19 Ves. 516. (d) 4 Russ. 435. (e) 1 You. & Col. (C. C.) 441. (g) 1 Cox, 254. (h) 11 Sim. 221. (i) 18 Ves. 384. (k) 2 Sim. & St. 340. |