1843. BURRELL v. EGREMONT. said, 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 The Earl of 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 monies, 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 1776, Earl George, out of his own monies, 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, Somerset, Devon, Dorset, and Cornwall to the Defendant (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 J. fendant 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, EGREMONT. after failure of the heirs male of his body. 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. P 3 The Earl of 1843. BURRELL บ. EGREMONT. portions. The original sum of 25,000l., and the additional sum of 25,000l. are called "portions," the other sums are called "legacies." The portions are to be The Earl of "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 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 whe (a) 2 Ves. jun. 449. And see Day v. Croft, 4 Beav. 561. and the cases there referred to. (b) 3 Ves. 474. (d) 4 Russ. 435. ther (e) 1 You. & Col. (C. C.) 441. (g) 1 Cox, 254. (h) 11 Sim. 221. ther 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 (a): 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 favour of the charge being preserved, and the onus of proof of the contrary lies on the remainder-man. It is not sufficient to shew 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 remainderman. In Drinkwater v. Combe (b), 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 (c) a tenant for life in remainder redeemed the land tax, and afterwards became entitled to the estate in fee, and devised it by his will: Sir John Leach said, "when Lord H. took the assignment of the land tax to himself, that act amounted to a declaration of his intention that the land tax redeemed should be part of his personal estate. It could not afterwards sink into the real estate without his expressed intention to that effect, and there is no evidence of any such intention. It continues, therefore, to be part of his personal estate." 1843. BURRELL v. The Earl of (a) 18 Ves. 384. In (c) 2 Myl. & K. 675. 1843. BURRELL V. The Earl of In the present case, Earl George never evinced any intention. The deeds shew that he was altogether ignorant of his rights, and by a mistake, originating EGREMONT. during his minority, the personal estate was considered primarily liable. All the subsequent deeds proceed on the same error. The Court will relieve in such cases; Earl of Buckinghamshire v. Hobart. (a) Lastly, it will be contended that the Plaintiffs' claim is barred by the Statute of Limitations (b) which enacts, that no suit shall be brought to recover any money charged on land, 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; and in such case, no such action, or suit, or proceeding, shall be brought but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given." The first answer to the objection founded on this statute is, that this clause only applies where there exists a person to pay, and one to receive, the amount of the charge and the interest. It can only apply where it is capable of this qualification, that there is one person to demand and Now it was quite impossible for Earl George both to pay and receive the interest: it would be absurd for George Earl of Egremont, by whom the interest was payable, or his agent, to give "some acknowledgment of the right thereto" to George Earl of Egre another to pay. mont, (a) 5 Swan. 186. (b) 3 & 4 IV. 4. c. 27. s. 40. |