annuity not charged on land, the annuity is not extin- PART III. guished by non-payment of instalments for any lapse of time (1). Where a legacy was left to an executor upon trust, and he separated it from the assets and afterwards applied it to his own use, it was held that by such severance the executor became a trustee of the fund, which ceased to bear the character of a legacy as soon as it assumed that of a trust fund; that sect. 40 of 3 & 4 Wm. IV. c. 27 did not apply, and that time was no bar to the recovery of the fund by the persons beneficially interested (2). In this case there was no doubt that the executor had ceased to act as executor and had actually acted as trustee, because he admitted in his answer that he had set apart the money for the purposes of the trust, and had at first paid some interest to the parties entitled. The question has, however, frequently arisen quite irrespectively of the Statute of Limitations, under what circumstances, when a legacy or residue has been bequeathed to executors on trust, the character of executor merges in that of trustee, it being clearly decided, as will be seen hereafter, that nothing in this section prevents the application of the rule that (apart from cases affected by the Trustee Act, 1888) no time will be a bar as between a cestui que trust and trustees. It is submitted that whatever could effect such merger of character for other purposes, would effect it so as to deprive the executors of the benefit of the statute. Such merger is, it seems, effected by any act which amounts to an assent to the legacy (3); and in the case of a residue by the residue being ascertained without more specific appropriation, but (1) Dower v. Dower, 15 L. R. Ir. 264. (2) Phillipo v. Munnings, 2 Myl. & C. 309; see Harcourt v. White, 28 Beav. 303; 30 L. J. Ch. 681; Cadbury v. Smith, L. R. 9 Eq. 37; O'Reilly v. Walsh, 6 Ir. R. Eq. 555; 7 Ir. R. Eq. 167. (3) Byrchall v. Bradford, 6 Madd. 13, 235; Dix v. Burford, 19 Beav. 409; see judgment in Brougham v. Poulett, 19 Beav. 133, 134. CH. I. Where acts as executor trustee. CH. I. PART III. not until it has been ascertained (1). If a legacy is bequeathed simpliciter and not to the executor upon trust, still if the executor by any act of his own constitute himself trustee for the legatee, the principle of Phillipo v. Munnings will apply, and the legatee will not be barred by the statute (2). Unless the legacy is vested in the executor on express trusts, the statute will run in his favour, an implied or constructive trust will not prevent the statute running (3). Personal estate of intestate. 23 & 24 Vict. c. 38, s. 13. No limitation was made by the Act 3 & 4 Wm. IV. c. 27 in the case of a residue undisposed of by will, or of the personal estate of an intestate. But by a later Act, 23 and 24 Vict. c. 38, s. 13, reciting the 40th section of 3 & 4 Wm. IV. c. 27, and that it was expedient to extend the enactment to the case of claims to the estates of persons dying intestate, it was enacted as follows: "No suit or other proceeding shall be brought to recover the personal estate or any share of the personal estate of any person dying intestate possessed by the legal personal representative of such intestate, 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 such estate or share or some interest in respect thereof shall have been accounted for or paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person accountable for the same or his agent, to the person entitled thereto or his agent; and in such case no such action or suit shall be brought, but within twenty years after such accounting, (1) Willmott v. Jenkins, 1 Beav. 401; Ex parte Dover, 5 Sim. 500; Davenport v. Stafford, 14 Beav. 319, 331; Dinsdale v. Dudding, 1 Y. & C. C. C. 265; Freeman v. Dowding, 2 Jur. N. S. 1014; Downes v. Bullock, 25 Beav. 54; 9 H. L. C. 1. In re Smith. Henderson-Roe v. Hitchins, 42 Ch. D. 302. (2) Tyson v. Jackson, 30 Beav. 384. (3) In re Davis. Evans v. Moore (1891), 3 Ch. 119. See In re Rowe, 58 L. J. Ch. 703. CH. I. payment or acknowledgment, or the last of such account- PART III. ings, payments or acknowledgments, if more than one was made or given ” (1). leaving posed of. This enactment does not in words extend to the case of Testator a testator who has not disposed of the whole of his pro- part undisperty, but such a case would naturally appear to come within the equity of the section. It is believed, however, that the point has never been decided, and it must be observed that by the 11 Geo. IV. and 1 Wm. IV. c. 40, the executor was declared to be a trustee for the next of kin of any residue undisposed of, and though, had the Act 23 & 24 Vict. c. 38 expressly mentioned such a residue, it would clearly have taken effect, notwithstanding the relation of trustee and cestui que trust existing by virtue of 11 Geo. IV. and 1 Wm. IV. c. 40 between the executor and next of kin, yet it is at least doubtful whether such relation must not be considered to preclude 23 & 24 Vict. c. 38 from applying to such residue by mere implication or equitable construction. It would have seemed that the provisions of 23 & 24 Vict. c. 38, s. 13, were intended to put the remedy of the next of kin against an administrator in the same position as that of a legatee against an executor. Lord Romilly, M.R., expressed an opinion that the Act applied only to assets distributed by the administrator, and not to assets retained by him, at least when the existence of such assets was unknown (2). But Chitty, J., in the case of In re Johnson, Sly v. Blake (3), expressed his disapproval of the view of Lord Romilly. The 13th section of 23 & 24 Vict. c. 38 applies to cases of intestates who died before as well as to those who die after the passing of the Act (4). With respect to assets of an intestate received within twenty years of the issue of the writ, the claim of the next of kin to administration limited to (1) See Willis v. Beauchamp, 11 P. D. 59. (2) Reed v. Fenn, 35 L. J. Ch. 464; 14 W. R. 704. (3) 29 Ch. D. 964, 973. (4) In re Jennens. Willis v. Earl Howe, 50 L. J. Ch. 4. In re Johnson. Sly v. Blake, 29 Ch. D. 964, 969. CH. I. PART III. those assets is not barred (1). The 13th section of 23 & 24 Vict. c. 38 and the 40th section of 3 & 4 Wm. IV. c. 27 (now the 8th section of 37 and 38 Vict. c. 57) are in pari materia and ought to be construed together (1). The enactment 23 & 24 Vict. c. 38 is not referred to or affected by the Real Property Limitation Act, 1874 (2), and therefore the period allowed for the commencement of an action to recover the personal estate of an intestate is still twenty years, although the time limited for the recovery of a legacy is twelve years. By the Intestates Estates Act, 1884, s. 3 (3), it is provided that no information or other proceeding on the part of the Crown shall be filed or instituted, and no petition of right shall be presented in respect of the personal estate of any deceased person, or any part or share thereof, or any claim thereon except within the same time and subject to the same rules of law and equity in and subject to which an action for the like purpose might be brought by or against a subject. A change in the law relative to the limitation of time governing legacies or sums of money charged on land and secured by express trusts was introduced by sect. 10 of 37 & 38 Vict. c. 57, but this section will be more conveniently discussed hereafter (4). CHAPTER II. WHEN TIME BEGINS TO RUN UNDER 3 & 4 WM. IV. c. 27, s. 40, AND 37 & 38 VICT. c. 57, s. 8. CH. II. UNDER the 40th section of 3 & 4 Wm. IV. c. 27 (now PART III. (1) Barber v. Shore 1 Jebb & S. 610; Gilman v. Chute, 11 Ir. L. R. 442; Kennedy v. Whaley, 12 Ir. L. R. 54; sce above, Part II. Ch. II. (2) Toft v. Stevenson, 5 De G. M. & G. 735. on post lien. |