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1844. Burrell v. The Earl of Egremont.

proposed and agreed, that the yearly sum of 3921. 3s. 2d. long annuities should be appropriated and set apart to answer and pay the portions and additional portions, by the settlement and will of Earl Charles provided for his younger sons Percy Charles, and Charles William. It was, by the said deed, witnessed, that the same long annuities should be appropriated and set apart for the purposes of the recited arrangement.

By another deed, also dated the 11th day of May, 1773, after reciting the matters aforesaid, Earl George allowed the accounts of his mother and guardians, and released his claims as residuary legatee.

On the 9th day of July, 1776, the Lady Frances attained her age of twenty-one years. Soon afterwards, the long annuities set apart to answer her portions were transferred into her name, and thereupon, by deed poll dated the 29th August, 1776, she acknowledged that she accepted the same in full satisfaction of her portions under the settlement and will of her father, and she released Earl George, as well in his own right, as in his character of heir of the body and executor of his father.

Percy Charles attained his age of twenty-one years on the 27th of September, 1778, and Charles William attained his age on the 8th of October, 1780. At these times respectively, the long annuities provided to answer the portions, were insufficient for the

purpose: the sums required to make up the deficiencies [*231] were supplied by *Earl George, and the younger sons Percy Charles and Charles William, upon receiving the long annuities and the sums to make up the deficiencies, i. e. upon receiving their whole portions, executed releases dated, as to one of them, on the 25th of December, 1778, and as to the other of them, on the 31st of January, 1781.

We cannot now know what Earl George might have said or done, if he had been told, that the charge of the additional portions exclusively or primarily affected the estates in Somerset, Dorset, and Cornwall-that he was under no obligation to pay the same out of his own money, and that paying the same he would be, or was personally, entitled to the benefit of the charge. Under the circumstances, it is possible, perhaps not improbable, that he might have desired and declared his inteution to exone

1844.-Burrell v. The Earl of Egremont.

rate the estate; but, after a careful consideration of the deeds which were executed on the several occasions on which the portions of the younger children were provided for and paid, I am of opinion that the question was never brought to his attention. The original portions were known to be charged on the York estates, and were so treated; and there are expressions in the deeds which are to be explained with reference to them, and to the estates on which they were charged; but it seems to be clear that Earl George conceived himself, as executor and residuary legatee, bound to pay the additional portions out of his own money, or the personal estate of which he was residuary legatee. He was ignorant that the additional portions were properly and primarily chargeable on the real estates, of which he was tenant for life; and the nature of the charge being unknown, and unalluded to in the deeds, they contain no indication whatever of intention either to continue the charge or to exonerate the

estate.

*A tenant for life paying of a charge upon the estate, ["232] 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.[2] 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)

In this case, there is no evidence whatever, except that which may be derived from the execution of the several deeds which have been stated; and as it does not appear from those deeds that Earl George knew his rights, it cannot be collected from them, that he intended to waive, or in any way relinquish his rights. The words of the deeds are fully satisfied, and are ex

(a) See St. Paul v. Viscount Dudley and Ward, 15 Ves. 173.

[2] As to merger of charges, see Lord Selsey v. Lord Lake, 1 Beav. 146; Hood v. Phillips, 3 Beav. 517; Astley v. Milles, 1 Sim. 298; Tyler v. Lake, 4 Sim. 351; The Earl of Clarendon v. Barham, 1 Yo. & Coll. 688, 702.

1844.-Burrell v. The Earl of Egremont.

plicable only on the supposition that he did not know that he had any right to have the additional portions raised out of the devised real estate, and that he did understand it to be his obligation to pay them out of the personal estate or his own money.

If it had been necessary to show, otherwise than by legal presumption, that Earl George intended to continue the charge, it would have been impossible to prove it, because it does not appear that he knew there was a primary charge, and the plaintiffs could not have proved that he intended to continue a charge, the existence of which, as a primary charge, was unknown. *The difference between the situation of the plaintiffs and that of the defendant is this,--that there is a presumption in favor of the plaintiffs and not in favor of the defendant. In the relation which subsisted between Earl George and the estate, the law presumes, that in paying off the sum charged, he did not intend to exonerate the estate.

[*233]

It may be true, that if Earl George had known the nature of the charge, and that he might have raised it for his own benefit, he might have thought fit to exonerate the estate; but this is no more than conjecture, and, in the absence of sufficient evidence, it cannot countervail a legal presumption, and I am under the necessity of concluding, that Earl George did not, by his acts, upon payment of the portious, exonerate the estates from the additional portions charged thereon by the will of Earl Charles, and that after the payment of the portions in the year 1781, Earl George was entitled to have the amount raised for his own benefit.

With respect to the statute of limitations, it was argued for the defendant, that the right, if any, of Earl George to the charge on the land in respect of the portions, accrued, at the latest, on the 31st day of January, 1781, when the last portion was paid. Releases having been given, it is said that the trustees could not have raised the portions at their own discretion, upon the demand of Earl George that if he had desired to avail himself of the charge, and have it raised for his own benefit, he must have filed a bill against the trustees and the remainder man; and that his right, in this respect, accrued sixty years before the present bill was filed. Earl

1844.-Burrell v. The Earl of Egremont.

George, it is said, if he had any right, was to be considered as in possession of an estate exonerated, with a right to re-im

pose the charge; and his right to re-impose the charge [*234] is lost by neglect, non-claim, and lapse of time, under the statute. This argument, however, assumes, that the estate was exonerated, which is the point in question; but it is further said, that there is no pretence that any rent was ever applied, or intended to be applied, in payment of interest, so that Earl George, if he ever was entitled to the charge, received no interest upon it: that he received the rents, and applied them to his own use, without any regard to the charges; and that his acts, in that respect, ought not to be qualified for the benefit of his executors.

The statute(a) enacts, that no suit shall be brought to recover any sum of money secured by any mortgage, judgment, or lieu, or otherwise charged upon or payable out of any land or rent, but within twenty years next after a present right to receive the same shall have accrued, to some person capable of giving a discharge for or release of the same, 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.

Now it is undoubted, that the right of Earl George to receive the charge accrued to him in the year 1781,-that no subsequent acknowledgment of his right thereto was ever made, and that more than twenty years after the right accrued expired in the lifetime of Earl George. But it is argued for the plaintiffs, that the clause in the statute cannot be held to apply to cases which do not admit of the qualification referred to in the same clause, and that, under the circumstances of this case, [235] Earl George ought to be deemed to have kept down the interest on this charge.

The clause of the act assumes, that there is not only a person capable of giving a discharge or release, but also an assignable person by whom the charge is presently payable, or who is capa

(a) 3 & 4 W. 4, c. 27, s. 40.

1844. Burrell v. The Earl of Egremont.

ble of paying the principal or interest of the charge, or of making an acknowledgment of the right thereto; but, in this case, there was a charge upon the estate which no assignable person was then liable to pay, and in respect of which no person was capable of making an acknowledgment that it was due, as, during the life of Earl George, it was necessarily uncertain who, at the time of his death, would be the person to take in remainder subject to the charge. It is further argued, that the statute can only apply to cases, where one person is entitled to receive and give a discharge, and another person is entitled to pay or capable of giving an acknowledgment of the right to the charge; and that if the statute were held to apply to a case like the present, it would apply to a case where the tenant for life had expressly declared his intention to keep the charge alive, or had procured a term to be vested in trustees for the purpose of keeping it alive, unless he had gone through the ceremony of paying money to the trustees, for the purpose of receiving it back from them under the name of interest on the charge. On the whole, it appears to me 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.

[*236]

*Before the charge was paid to the younger children, it was the duty of Earl George to pay or account for the interest to them, and to prevent any accumulation against the remainder man.[3] After the portions were paid, (supposing Earl George to have become entitled to the charge for his own benefit,) it was still his duty to prevent accumulation of interest against the remainder man. Nothing is more common, than for a man to have, with reference to the same property, a right to receive the income, and a duty to apply the income, or to make payments out

[3] Bulwer v. Astley, 1 Phillips, 422. Raffety v. King, 1 Keen, 618. Clason v. Lawrence, 3 Edw. Ch. Rep. 54. 1 Story's Eq. § 488. As to duty of tenant for life to keep down taxes and assessments, see Cairns v. Chabert, 3 Edw. Ch. Rep. 312.

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