assets. estate is barred by the Statute of Limitations, will marshal the assets of a debtor, and thus indirectly give Marshalling to such creditor the same time for the recovery of his debt as a specialty creditor may have, is a question. "Simple contract creditors," said Turner, V.-C. (p), "have now a direct right against the real estate in case of a deficiency of the personal (7), and do not require the aid of the court for that purpose, in order to give them a remedy against the real estate; and for whatever purpose the doctrine of marshalling may be necessary to be kept on foot, I do not think that it ought to be kept alive for the purpose of giving indirectly a right which could not be asserted directly. The consequence would be that, in all cases where there are any specialty debts, the simple contract creditors would be entitled to sue the real estate at any time within which the specialty creditors could have sued; in effect to create in equity the same limitation as to simple contract debts as the statute (r) has prescribed as to specialties." Legacies are also expressly embraced by the sec- Legacies. tion 40. When charged on land they would be within these terms of this section prior to the term legacy, and therefore this term must have been intended by the legislature to apply to legacies not so charged. But whether legacies not so charged are within this section was formerly much doubted (s). In Coope v. Cresswell (t), Kindersley, V.-C., said "legacy seems to have been introduced into the act by a blunder. Considering, however, the context of the act, especially the terms of this section as to money, in general, when charged on land, and the section 42, the conclusion, that legacies payable out of personal estate, as well as (p) Fordham v. Wallis, 10 Hare, 217. (2) 3 & 4 Will. 4, c. 104. (r) 3 & 4 Will. 4, c. 42. Sce Life annuity out of personalty. Legacy, when not recoverable from estate of executor. Share of residue under a will. those charged on land, are within the section 40, seems irresistible, and is now clearly and firmly so settled (x).' A life annuity payable out of personal estate is a legacy within the section 40 (y), although, as we shall presently see, the arrears of such an annuity have been determined, and rightly determined, not to be within the section 42. For the term legacy, although having, familiarly and colloquially, a restricted meaning, may receive, according to circumstances, a more general one (z), and even be applied to a devise of land (a); and accordingly in wills, unless there be something in them showing that the testator distinguished these annuities from legacies of gross sums (b), the term legacy is interpreted to include these annuities (c). A legacy, the right to which, as against an executor possessing sufficient assets of the testator to satisfy it, has accrued, but is not sued for as a legacy out of such assets within twenty years afterwards, will be lost (d), and cannot be recovered after that time as a debt due from the executor out of real estate charged by him with the payment of his debts. Treating him as a debtor cannot prolong the time for claiming the legacy (e). A share of residue bequeathed by a will is a legacy within the sect. 40. Thus where the claim was by one of two residuary legatees against the executors of the executor of the original testator in 1835, and it appeared that the testator's executor proved the will, and in 1791 (x) Sheppard v. Duke, 9 Sim. 569; Henry v. Smith, 2 Dru. & War. 391; Bullock v. Downes, 9 H. of L. Cas. 1. See also Prior v. Horniblon, 2 You. & C. 200; Piggott v. Jefferson, 12 Sim. 26. (y) Roch v. Callen, 6 Hare, 531; Ashwell's Will, John. 112. (2) Per Knight Bruce, V.-C., Cornfield v. Wyndham, 2 Coll. 184. (a) Hope v. Taylor, 1 Burr. 268; Hardacre v. Nash, 5 T. R. 716; Evans v. Crosbie, 15 Sim. 600. (b) See Nannock v. Horton, 7 Ves. 391; Cornfield v. Wyndham, supra. (c) Ib.; Sibley v. Perry, 7 Ves. 522. (d) Sheppard v. Duke, supra; Piggott v. Jefferson, 12 Sim. 26. (e) Piggott v. Jefferson, supra. died, and that as far back as 1800 or soon afterwards the claimant had an opportunity of ascertaining what the clear residue was and requiring payment of the amount. The present right to receive the residue accrued thirty years previously, and it was not contended that any suit was necessary to ascertain it, and the claim was therefore held to be barred, and the defendant was allowed to set up the statute as a bar (ƒ). In Prior v. Horniblow there had not been any appropriation by the executor of the testator of any part of the residue, so as to constitute the relation of trustee and cestui que trust in respect thereof, as in Phillipo v. Munnings (g), presently to be noticed; and although the defendant was allowed to avail himself of the statutory bar, the case is not an authority that such bar would have been allowed to the original executor. Indeed it will be seen from the subsequent cases that he would not be allowed to avail himself of such bar. Again, although the question did not call for a decision, Shadwell, V.-C., considered that the act where it speaks of a legacy does, in effect, speak of a share of a residue, and does not make any difference between a share of a residue and a legacy (h). But the subject to which the statute is to be applied When to be ascertained. must be definite and ascertained; and in cases of residue courts of equity have adopted, as a rule, that a year after the death of a testator is the period within which his property may, with reasonable diligence, be administered (¿). But Lord Eldon said (k) he knew of no case which prevents executors, if they choose, from (f) Prior v. Horniblow, 2 You. & Coll. 200. See also Adams v. Barry, 2 Coll. 285. (9) 2 Myl. & C. 309. (h) Christian v. Devereux, 12 Sim. 264. See also Dinsdale v. Dudding, 1 You. & Col. C. C. 265. (i) See Wood v. Penoyre, 13 Ves. 325, 333; Brooke v. Lewis, 6 Mad. 358. (k) Angerstein v. Martin, Turn. & R. 232, 241. Residue and share of on intestacy. Whether when to be ascertained by suit. paying legacies, or handing over the residue within the year; and if it is clear, currento animo, that the fund for the payment of debts and legacies is sufficient, there can be no inconvenience in so doing. From the expiration of that period, therefore, as a general rule, the operation of the statute, in such cases, would commence. If however subsequent to that period any assets of the testator, forming part of his residuary estate, come to the possession of his representatives, the statute, as to such assets, would not begin to operate until the possession thereof (h). A residue and a share of residue, as a legacy only, are within the c. 27. But the principle of that enactment is equally applicable in the case of the personal estate, and any share of the personal estate, of a person dying intestate. To such cases accordingly, from the 31st December, 1860, a legislative provision, similar to that of sect. 40 in c. 27, has been applied (i). Whether a residue, where a suit may be necessary to ascertain it, be within the sect. 40, may be a question; and if within it, another question would be at what time the right to receive it is to be deemed to accrue. But a pecuniary legacy bequeathed to an executor upon trusts for certain persons and by him severed from the testator's general personal estate, or a share of residue so bequeathed and by him appropriated accordingly, is a trust fund and he cannot avail himself of the statutory bar against the cestuis que trust (j). It was attempted to treat the case as a suit for a legacy. But the court said, that what the executor would have done by paying the legacy to a trustee he had done by severing it from the testator's property and appropriating it to the particular purpose pointed out by the will, and could not be con (h) See Adams v. Barry, 2 (i) 23 & 24 Vict. c. 38, s. 13. (j) Phillipo v. Munnings, 2 Myl. & C. 309. sidered as acting in his character of executor, but in that of trustee only; and the suit was not to be treated as a suit for a legacy, but to compel him to account for a breach of trust, and therefore was not within the terms of the act (k). on land and rent within Only charges on land or rent, including legacies so Only charges charged and those not so charged, are within the section 40 (1). That section does not apply to anything sect. 40. but the remedy against the realty, and not to actions on a covenant to pay, or a bond to secure the payment of rent or of mortgage money (m), and so also the section 42 (n). These actions are within a subsequent enactment (o) of the same session. Pecuniary claims arising periodically, as arrears of Periodical dower, of rent, of interest for sums in gross charged claims. pecuniary upon or payable out of any land or rent, and for legacies, are also embraced by the 3 & 4 Will. 4, c. 27. None of these arrears are to be recovered or obtained, in general, for a longer period than six years, computing that period from the times which will hereafter appear (p). The ordinary form of expression in the Statutes of Limitation is that all actions shall be commenced within a limited period and not after (q). The terms of the 3 & 4 Will. 4, c. 27, ss. 41, 42, are in the negative only, but those of the c. 42, s. 3, are not merely negative, but import an affirmative also; not merely that arrears for more than ten years may not be sued for, but that they may be sued for during all that time (r). The terms of the (k) See also Roch v. Callen, 6 Hare, 531; Dinsdale v. Dudding, 1 You. & Col. C. C. 265; Bullock v. Downes, 9 H. of L. Cas. 1. (1) Elry v. Norwood, 5 De Gex & S. 240; 2 Kay & J. 345. (m) See Paget v. Foley, 2 Bing. N. C. 690; Strachan v. Thomas, 12 Ad. & E. 536; Forsyth v. Bristowe, 8 Ex. 720; Manning v. sects. 41 and 42 of the (n) Elvy v. Norwood, supra ; (p) Sects. 41, 42. (7) 21 Jac. 1, c. 16; 3 & 4 Will. 4, c. 27, ss. 2, 24, 28, 30, 33, 40, 43; c. 42, s. 3. (r) See Paget v. Foley, 2 Bing. N. C. 690. |