1844-Burrell v. The Earl of Egremont.

of it in a certain manner. If the property producing the income be absolutely his, subject only to a charge, in respect of which it is his duty to make payments of interest out of the income, and he becomes owner of the charge, there is an end of the duty to make the payments; but the duty to make the payments may not be a simple duty owing to the person entitled to receive interest. Where the estate in the property charged is limited, as in the case of a tenant for life, the duty of paying interest to the person entitled to receive it, may be connected with the further duty of preventing the accumulation of interest against the remainder man; and where the owner of the rent has become owner of the charge, if the duty to prevent accumulation of interest upon the charge against the remainder man continues, this court will hold a tenant for life, owner of a charge on the inheritance, to have discharged that duty. It is presumed to be done, first, on the ordinary principle, that this court will assume to be done that which the party might and ought to have done; secondly, to prevent any prejudice arising to the remainder man by the accumulation of interest; and, thirdly, to prevent multiplicity of suits, and relieving the remainder man, compelled to pay an accumulation of interest, from the necessity of suing the representatives "of the tenant for life, whose duty it was [*237] to pay the interest, for reimbursement.

It was contended, that if the duty to pay comprised no duty to any one but the party entitled to receive, the court would not interfere or in any way qualify the acts of the tenant for life, for the purpose of deeming the duty to be satisfied or uot. I agree to that; but in the case of tenant for life, owner of a charge on the inheritance, it is not merely with reference to the party himself that the duty of paying the interest arises: he receives the income, and is entitled to the interest payable thereout; and when he has received the income, he is deemed to have paid or kept down the interest, not because of any duty which he owes to himself, but because he has a duty to another, i. e. to the remainder man, to prevent the accumulation of interest against him. If you suppose the charge to be a subsisting charge, there being no express payment of interest, no act by which the payment of interest can be proved, there would be an accumulation

1844.-Burrell v. The Earl of Egremont.

of interest against the remainder man, if the law did not presume a duty to prevent it, and also a satisfaction or performance of that duty, by the person who received the income, by the due application of which the duty ought to have been performed. It is not, I think, necessary, to assume as a fact (though this has been done,) that the tenant for life must have received the interest of the charge, at the times when he received the rents of the estate. It is sufficient, that, by a rule of law, the tenant for life of an estate who is also the owner of a charge on the inheritance must, in favor of the remainder man, be deemed to have kept down the interest of the charge out of the rents received; and I think that the remainder man in whose favor this rule has been established cannot be permitted to contend, that the interest thus *for his benefit deemed to have been kept down and paid, was, in fact, not paid, for the purpose of enabling him to say, that, under the statute of limitations, the right to sue for the charge is lost. Under these circumstances, I think that the case does not come within the purview of the statute of limitations.

[238]

Under the circumstances, and for the reasons I have stated, it appears to me that the plaintiffs are entitled to the relief which they pray.[4]

Declare, that, according to the true construction of the will of

[4] See The Duke of Cumberland v. Codrington, 3 Johns. Ch. Rep. 226, where, although it is admitted that the personal estate is the primary fund for the payment of a charge upon the land, created by the ancestor; yet in that case, the ancestor having taken a conveyance of land subject to a mortgage, and covenanted to indemnify his grantor against the mortgage, and died intestate, the land was held to be the primary fund for payment. The case also shows, that the circumstance of the existence or absence of any personal security on the part of the ancestor is, of itself, immaterial in fixing the fund upon which the charge is to be imposed. See Johnson v. Child, 4 Hare, 87, where, p. 94, Wigram, V. C. observes: "The rule of law is clear, that a testator, by devising lands expressly 'subject to a mortgage,' does not thereby declare any intention that the devisee shall take cum onere, as to the personal estate." In a subsequent sentence the Vice-Chancellor says: "The court is active in throwing the burthen wholly upon the devisee of the land,-upon the party apparently, and upon the ordinary principles of the court, entitled to be exonerated." The two sentences taken together, and in connection with the context seem to have this meaning-that although the devisee shall, by the clear rule of law, be entitled to the land discharged of the mortgage; yet notwithstanding this clear rule, the court endeavors throw this burthen upon the subject devised; herein acting upon the maxim, Qui sentit commodum, sentire debet et onus.

1843.-Edmonds v. Peake.

Earl Charles, the additional portions, amounting to 25,000. thereby given to the younger children therein named, constitute a primary charge on the estates by the said will devised to the testator's eldest son for his life; and that Earl George, the tenant for life of those estates, having paid the same additional portions to the persons entitled thereto, out of his own moneys, became and was, and up to the time of his death continued to be, entitled to the same charge for his own benefit, and that the plaintiffs, as his legal personal representatives, are now entitled thereto, as part of his personal estate. Take an account of what is due, and decree the amount to be raised.

The defendant appealed, but the case was afterwards compromised, by the plaintiff's making some concessions.

*EDMONDS v. PEAKE.

[*239]

1843: November 10, 17. Executors employed an auctioneer, who received the deposit. After some necessary delay, the purchases were completed on the 17th of December, 1831. The auctioneer failed to pay over the deposit. The executors, acting under legal advice, took no legal proceedings against him till the 14th of March, 1832, and the money was lost. The auctioneer was not, at the completion of the sales or afterwards, in circumstances to pay the balance. Held, under the circumstances, that the executors were not personally liable.

THIS was a suit instituted against the surviving executors, for the administration of a testator's estate.

By the decree, it was, amongst other things, referred to the master, to "inquire and state to the court, what sales had been made of the leasehold estates of the testator, and whether any and what deposits were left in the hands of the auctioneer, and to what amount, and under what circumstances."

The master, by his report, found, that Messrs. Griffith, Hopkins and Cooper, formerly carried on business as auctioneers to a very large extent, and were considered to be men of high character, ability, and integrity, and had been employed by the tesVOL. VII.

26

1843.-Edmonds v. Peake.

tator: that Griffith and Hopkins, having amassed considerable fortunes, relinquished the business to Cooper, who continued to carry it on down to January, 1832, "and was considered, by people in his neighborhood, to be a person of integrity and credit, and enjoyed a good reputation."

That the executors, being unable to let the leaseholds, employed Cooper to sell them by auction. That they were accordingly sold by him on the 30th of May, 1831, and that the deposits, to the amount of 6197. were paid to Cooper, the auctioneer; that delays in completing the purchases unavoidably occurred, but that ultimately, on the 17th of December, 1831, the sales were completed; that Cooper did not attend on that

occasion, and that the solicitors of the executors, by let[*240] ter written *on the 21st of December, expressed their

surprise at this, and appointed the next day for a meeting; that Cooper's son then attended, and stated that his father had made large advances on the faith of the completion of the sale of an estate, and that until he received that money, he could not pay over the balance of the deposits, and that he promised the defendants to send his father's accounts to the executors' solicitors on the following day: that Cooper attended the next day, and his account being produced and examined, he was required to pay the balance; that he stated his inability to do so at that time, but that he had a sale of a large property shortly, by which he should receive a considerable sum, and should then be able to pay the balance due from him. That the executors consulted with their solicitors several times between the 30th of December, 1831, and the 21st of January, 1832, on the best means of obtaining payment of the balance due from Cooper; and that on the 21st of January, 1832, the solicitors wrote to Cooper, stating, that if he did not come to a satisfactory settlement, they should be compelled to adopt coercive measures against him immediately; that Cooper did not send any answer, aud that the executors frequently consulted with their solicitors, after they had written the last mentioned letter, on their being unable to see Cooper, or obtain payment of the balance due from him; and that they instructed their solicitors to issue a bailable writ against Cooper, which was done on the 14th of

1843.-Edmonds v. Peake.

March, 1832, and a warrant was placed in the hands of a very active officer to execute, but that the officer was never able to discover Cooper. That the executors were unable to discover where Cooper was for a period of upwards of six years, but that they had lately found that Cooper left his residence in the last week in January, 1832, and went to Gravesend, and *subsequently into divers parts of England, where he [*241] continued to secrete himself for upwards of six years.

The master also found that Cooper was not, at the time of the completion of the sales, or at any time subsequent, in circumstances to pay the balance so due from him.

The cause now came on for further directions, when the question was whether, under the circumstances, the executors were or were not personally liable for the loss which had occurred.

Mr. Pemberton Leigh and Mr. J. J. Williams, for the plaintiffs, contended that the executors were personally liable for the amount lost by the insolvency of the auctioneer; that they ought not to have left the money in his hands, and that they had not used due diligence in proceeding against him after his default in December; that to release a trustee or executor, where he employs an agent, it must be shown that the money was not lost by any want of diligence. That here, from December to March, no active step had been taken to compel Cooper to pay the money; and which, if taken, might have proved successful.

Mr. Turner, in the same interest.

Mr. Tinney, contra.-The executors are not liable; they left the deposit in the hands of the auctioneer, who acted as the agent of both parties. Up to December, they could not do otherwise. After that time, they acted bona fide, under legal advice, and did all that could be done to *recover the amount. [*242] Cooper seems to have absconded in January, and from the master's report, it appears that Cooper was not at the time of the sale, or any time subsequent, in circumstances to pay the balance due from him.

THE MASTER OF THE ROLLS:-There seems to be some diffi