1843.-Burrell v. The Earl of Egremont. and finding himself in possession of considerable personal estate, to release the family estate from the incumbrance for the benefit of those who might succeed him. When he paid off the charges, no transfer was made of them to a trustee for himself, as would have been done if he intended to keep them on foot; but they were absolutely released and merged in the inheritance. From 1772 to 1837 not the slightest trace appears of any intention to keep the charges on foot, or that Earl George even supposed them to be in existence, and no claim was made by any one till his death. Thirdly; the dispositions contained in the will of Earl George are quite inconsistent with the notion that he intended the settled estates in Somerset, Dorset, and Cornwall should remain charged with the 25,000l., for he devises to the defendant his own. [*218] fee simple "estates in those counties, clearly intending, so far as he could, to augment those estates which were to go with the title. Lastly; the claim is barred by the statute of limitations, which is binding on courts of equity, and is positive in its terms. It enacts, that no suit shall be brought to recover any sum secured on land, but within twenty years after a present right to receive shall have accrued to some person capable of giving a release. Earl George having acquired the right, upon payment of the charges, and being then capable of giving a release, this period, therefore, expired twenty years after payment. Then comes the exception "unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable or his agent, to the person entitled thereto or his agent." None such was given, and therefore the claim is extinguished. The argument on the part of the plaintiffs is strange: they say, that because a party cannot come within the saving clause or an exception of an act, therefore he is not within the act at all. Such cannot be the proper construction: but here it was very possible for Earl George to have preserved his right, either by having the charge assigned to a trustee, and giving an acknowledgment to them, or secondly, by calling on the trustees to raise the money by a mortgage executed to a trustee of himself as tenant for 1843.-Burrell v. The Earl of Egremont. life; or thirdly, by an application to a court of equity. The argument on the other side is inconsistent with itself; on the one hand, it is said, that interest could not be paid, and that, therefore, the case is not within the act; and on the other, that it was paid by retainer, and therefore that the act does not apply. The cases of Corbett v. *Barker,(a) and Raffety [*219] v. King,(b) do not apply; for there a third party had a right to call for the performance, by the tenant for life, of a duty: here the only duty of the party was tɔ himself. The case is next put on mistake, which, it is said, is equivalent to fraud; but that is not so. Cases of mistake are not excepted by the statute; if it were, the court does not relieve in cases of mistake of law. St. Paul v. Viscount Dudley and Ward, (c) where a tenant for life of a manor took a surrender of a copyhold to himself and it merged. If it were otherwise, then, under the twenty-sixth section, the mistake or fraud might "with reasonable diligence have been first discovered" at the time when the charges were paid off. The charges have merged at law, and the plaintiff's who represent Earl George, cannot, after sixty years delay and acquiescence, be entitled to be relieved from the mistake. Brooksbank v. Smith, (d) and Denys v. Shuckburgh,(e) were not cases under the present statute of limitations. Mr. Lee, in reply. THE MASTER OF THE ROLLS reserved his judgment. 1844: April 17.-THE MASTER OF THE ROLLS :-This bill is filed by the legal personal representatives of the late George Earl of Egremont against the present *Earl, and [*220] it prays that an account may be taken of the principal money and interest alleged to be due to the plaintiffs in respect of a sum of 25,000l. charged on certain estates in the counties of Somerset, Dorset and Cornwall, by the will of Charles Earl of (a) 1 Aust. 138, reversed 3 Anst. 755. (b) 1 Keen, 601. (d) 2 You. & Col. (Exch.) 58. (c) 15 Ves. 167. VOL. VII. 24 1844. Burrell v. The Earl of Egremont. Egremont, the father of the late Earl George and the grandfather of the defendant, and that the amount of what shall be found due may be raised by sale or mortgage of a sufficient part of the estates, and paid to the plaintiffs. By a settlement, dated the 26th of February, 1750, and made on the marriage of Earl Charles, certain estates in the county of York were vested in trustees for a term of 600 years, in trust for raising by mortgage or sale 25,000l. for the portions of his younger children. In the month of July, 1761, there were five children of the marriage, George, the eldest son, and four younger children: namely, Percy Charles, Charles William, and the Ladies Elizabeth and Frances, who were together entitled to the 25,000l. provided for their portions by the settlement; and Earl Charles, by his will dated the 31st of July, 1761, appointed the 25,000l. as follows; viz. 10,000l. to Lady Elizabeth 10,000l. to Lady Frances; 2500l. to Percy Charles; and 2500l. to Charles William. By the same will, he devised his estates in Somerset, Dorset and Cornwall, to his eldest son, the late Earl George for life, with remainder over, by virtue of which the defendant became entitled to those estates; and he gave to his daughters Elizabeth and Frances, 10,000l. a-piece, and to his sons Percy Charles and Charles William 2500l. a-piece, and calling these sums of money portions, he subjected and charged his estates in Somerset, Dorset and Cornwall, which he had devised to his eldest son, [*221] with the raising and paying the same; and after *bequeath ing certain legacies, he gave the residue of his personal estate to his eldest son. He appointed his wife and brother guardians of his children, and appointed his wife sole executrix until his eldest son George should attain twenty-one years of age, and after that time, appointed his eldest son George sole executor. After the date of the will, the testator had a fourth son, William Frederick, the father of the defendant, and, by a codicil dated the 22d of June, 1763, he made provision for his son William Frederick, but the directions as to the portions which by his will he had given to his other younger children were not altered. After the death of Earl Charles, his eldest son, being still a minor, the will and codicil were proved by the widow, who 1844. Burrell v. The Earl of Egremont. possessed the personal estate; but after Earl George attained his age of twenty-one years, he proved the will and codicil, and became the sole legal personal representative of his father Earl Charles. The portions provided for his younger children by the will of Earl Charles were paid by Earl George out of his own money, and on the occasion of each payment, certain deeds were executed, and releases were taken from the sons and daughters to whom the payments respectively were made. The last payment was made in the month of January, 1781, from which time it does not appear that any mention was made of the portions during the life of Earl George, who died on the 11th of November, 1837, having made a will whereof the present plaintiffs are executors. The plaintiffs contend, that by the will of Earl Charles the additional portions thereby given were exclusively or primarily charged on the estates in "Somerset, Dorset, [*222] and Cornwall, which were devised to Earl George for his life that Earl George, the tenant for life, having paid the charge out of his own money, became, thereupon, entitled to the charge for his own benefit, and so continued during the whole of his life; and that the plaintiffs, as his legal personal representatives, are now entitled to have the same raised. On the other hand, the defendant contends, first, that, according to the true construction of the will of Earl Charles, the estates in Somerset, Dorset, and Cornwall, were only charged in aid of the personal estate of Earl Charles, and not exclusively or primarily, with the payment of the additional portions; secondly, that Earl George, by his payment of the portions and his execution of the several deeds made on the occasions of such payment, declared his will and intention to be to exonerate the estates charged from the payment thereof, and that the estates ought to be deemed to be exonerated from the payment, even if the charge was, upon the construction of the will, an exclusive or primary charge on the devised estate, and not merely a charge thereon in aid of the testator's personal estate; thirdly, that even supposing the charge to be an exclusive charge on the devised estates, and that Earl George did no act to exonerate the devised 1844. Burrell v. The Earl of Egremont. estates, yet, as his right to the charge accrued in 1781, he ceased, upon the expiration of twenty years without payment of interest or any acknowledgment, to be entitled to sue for the charge, and the same cannot now be recovered. Some question was made as to the effect of the will of Earl George, but it does not appear to me that it contains any thing which affects the right or interest of either party. [*223] *The first question is, whether, according to the true. construction of the will of Earl Charles, the additional portions, amounting to 25,0007., ought to be considered as general pecuniary legacies payable primarily out of the testator's personal estate, or whether they are to be considered as portions, exclusively or primarily charged upon and payable out of the estates in Somerset, Dorset and Cornwall, devised to Earl George for life. The words by which the additional portions are given and be. queathed, if taken by themselves, constitute distinct gifts, which would be primarily payable out of the personal estate. The defendant relies mainly upon this, and upon there being no term or estate created for the purpose of raising the additional portions; but it is necessary to examine the whole scope and context of the will for the purpose of ascertaining the effect of it. The testator begins his will, by reciting and confirming the settlement of his estates in York, Cumberland, and Sussex, made on his marriage; and he appoints the 25,000l., thereby raiseable by sale or mortgage, for the portions of his younger children, directing the whole to be raised and paid, as to 10,000l. part thereof for his daughter Elizabeth, for part of her portion, as to 10,0007., other part thereof, to his daughter Frances, for part of her portion, as to 2500l., other part thereof, to his son Percy Charles, for part of his portion, and as to the sum of 2500l., residue thereof, to his son Charles William as part of his portion; and after giving directions as to the payment of interest and the time of payment, he provided, that if any younger child should die without issue before the time of payment, his or her portion should sink into the inheritance charged therewith, and not be raised or paid. The testator, after devising to his eldest son certain pur[*224] chased estates in York and Essex, proceeds to "devise the estates out of which the plaintiff's seek to raise the sum |