and to the like extent as if the claim had been against Chap. XIX. 2. No beneficiary as against whom there would be a good defence by virtue of this section, shall derive any greater or other benefit from a judgment or order obtained by another beneficiary than he could have obtained if he had brought such action or other proceeding and this section had been pleaded. 3. This section shall not deprive any executor or administrator of any right or defence to which he is entitled under any existing Statute of Limitations. "Trustee" in this Act includes an executor or administrator and a trustee whose trust arises by construction or implication of law, as well as an express trustee.1 3 An action by a newly appointed trustee against a former trustee to compel him to make good losses arising from improper investments made more than six years before action; an action by a person entitled to a share of residuary personal estate against the trustees of the will for breach of trust whereby the residue was diminished, brought more than six years after his interest had fallen into possession; 3 an action by a person entitled to residuary personal estate, brought more than six years after he came of age, against the trustees for administration, where the whole estate had been expended on the infant during his minority; and an action. by cestui que trust against trustees to compel them to make good the loss arising from breach of trust in investing upon insufficient security, are barred by the above provisions. Directors of a company are trustees in respect of moneys of the company which have come to their hands, or are under their control, and can claim the protection of the above Act in proceedings against them for misapplication of such moneys." Where a chose in action is vested in trustees on trusts, and Claim of cestui que the right of the trustees to sue at law is barred by statute, and the trust when cestuis que trust are merely entitled to the benefit of an action trustee barred. by the trustees, their remedy is barred also; but, if they have an 1 S. 1 (3). 2 Re Bowden, 45 Ch. D. 444. Re Page, [1893] 1 Ch. 304. Re Somerset, [1894] 1 Ch. 231. 6 Re Lands Allotment Co., [1894] 1 Ch. 616; Re Sharpe, [1892] 1 Ch. 154. Chap. XIX. independent remedy in Equity against the debtor, the question whether the statutes apply depends upon whether the remedy of the cestuis que trust against the debtor is analogous to a legal remedy. If it is, the statutes apply; otherwise they do not apply. The only case in which the beneficiaries have such an independent remedy is where the debtor is a party to the trust, or is privy to a breach of trust; as, for example, where a settlor covenants to pay money to trustees for the purposes of the settlement,1 or where trust moneys are improperly advanced to a person who knows that his taking them is a breach of trust, or where the debtor knows that the debt is trust property and deals with it in such a manner as to prevent the cestuis que trust from receiving it. Fraud. In cases of fraud, if no limitation of time is prescribed by statute, a Court of Equity will never lay down as a general proposition, that though the fact that imposition has been practised be established, the party is too late. The true operation of length of time is by way of evidence."+ If the case falls within the statute, time will not begin to run against a person seeking to upset the transaction in equity on the ground of fraud or undue influence, until he discovers, or might with reasonable care have discovered, the fraud, or is freed from the influence. In the case of partners, however, the one is entitled to rely on the good faith of the other, and concealed fraud by the one will prevent the operation of the statute although the other might have discovered it if he had used due caution." Where fraud is alleged in order to take the case out of the Statutes of Limitation, it is not sufficient to prove that the wrongful act was unknown to the injured person, or to show that property has been wrongfully enjoyed while the true owner is ignorant of his rights; there must be abuse of a confidential 1 Burrowes v. Gore, 6 H. L. C. 907. 175. 3 Per Ld. Wensleydale, 6 H. L. C. 967. A Morse v. Royal, 12 Ves. 374, 8 R. R. 338; Aylward v. Kearney, 2 Ball & B. 463. 5 Blennerhassett v. Day, 2 Ball & B. 118; Charter v. Trevelyan, 11 Cl. & F. 714; 65 R. R. 305; Whalley v. Whalley, 3 Bli. 2; Blair v. Bromley, 5 Ha. 542; 2 Ph. 354; Browne v. McClintock, L. R. 6 H. L. 456; Gibbs v. Guild, 9 Q. B. D. 59. As to the effect of the Trustee Act, 1888, see Moore v. Knight, [1891] 1 Ch. 547. 6 Aylward v. Kearney, 2 Ball. & B. 463; Wright v. Vanderplank, 2 K. & J. 1 ; Austin v. Chambers, 6 Cl. & F. 1; 49 R. R. 1; Molony v. L'Estrange, Beat. 406; Clanricarde v. Henning, 30 Beav. 175. 7 Betjemann v. Betjemann, [1895]2 Ch. 474. 8 Dean v. Thwaite, 21 Beav. 621; Petre v. Petre, 1 Drew. 397. See M. L. R. P. 425, note (ƒ). position,1 or fraud; and the fraud must be that of, or in some way Chap. XIX. imputable to, the person who invokes the aid of the statute.3 5 Lapse of time is always considered of importance in equity, and relief may be refused on the ground of laches, either in cases of fraud where the time prescribed by the statute has not elapsed since the discovery of the fraud, or where the statutes do not apply. For, if a person having knowledge of his rights sits still and permits other persons to acquire interests and consider themselves as owners of the property, every presumption will be made against him. And staleness of demand, as distinguished from the Statute of Limitations and analogy to it, may furnish a defence in equity to an equitable demand.8 "Even where there is an express trust, lapse of time, coupled with other circumstances which render it unjust to give the plaintiff relief against the defendant, will induce the Court to refuse the relief, although no Statute of Limitations might bar his claim."9 It should be observed that, in the common case of trust moneys being improperly advanced to a tenant for life, being the person who ought to receive the income arising from them, time cannot run in his favour during his lifetime,10 for the transaction amounts to constructive payment of interest by him. Laches, or stale demands in equity. Trust moneys lent to tenant for life. payment of debts. The next question for consideration is how far the creation of Trust for a trust for payment of debts affects the operation of the statutes as regards existing debts. A trust created by will for payment of the testator's debts out of his real estate does not revive a debt barred by statute in the testator's lifetime;" and, according to the maxim "expressio eorum quae tacite insunt nihil operatur,' a trust created by will for payment of the testator's debts out of his personal estate does not exclude the operation of the statute, 12 New Sombrero Co., 3 App. Cas. 1218, Per Lindley, L.J., Re Sharpe, [1892] 1 Ch. 168. 9 Rochefoucauld v. Boustead, [1897] 1 Ch. 196, 212. 10 Mills v. Borthwick, 11 Jur. N. S. 558; 13 W. R. 707. 11 Burke v. Jones, 2 V. & B. 275; 13 R. R. 83; O'Connor v. Haslam, 5 H. L. C. 178. 12 Elph. N. & C. Interp. 85. Chap. XIX. for the executors are by law trustees for the creditors and the will does not alter their legal liability.1 Effect of administra tion action. Judgment in an action for administration on behalf of creditors generally, would seem to stop the operation of the statute; but the mere commencement or pendency of the action has not this effect.2 1 Scott v. Jones, 4 Cl. & F. 382; 42 R. R. 29. As to debts charged upon land, see M. L. R. P. 435, 436. 2 Re Greaves, 18 Ch. D. 551, per Jessel, M.R.,explaining Sterndale v. Hankinson, 1 Sim. 393; 27 R. R. 210. CHAPTER XX. DEVOLUTION OF PROPERTY ON DEATH. THE power of making a will or testament' of personal property Chap. XX. seems to have existed from a very early time. In the city of Will, power London, the province of York, and the principality of Wales, of making. there were formerly customs which restricted the testamentary power of a man who left a wife or children; but these customs have long since been abolished by statute.3 will. At common law a will might be "nuncupative," i.e., by word Nuncupative of mouth without writing; but by the Statute of Frauds nuncupative wills of personal property exceeding in value 301., though not absolutely abolished, were subjected to such restrictions and requirements that they fell into disuse. Frauds. The Statute of Frauds required wills of lands to be in writing Statute of signed by the devisor or by some other person in his presence and by his express directions, and to be attested and subscribed in the presence of the devisor by three or four credible witnesses; but it did not require wills of personalty to be signed or attested at all; and so the law remained until the year 1837 when the 6 1 Vict. c. 26. Require Wills Act provided that a will (which is defined so as to include Wills Act, a codicil)" shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction, and such signature shall be made or acknowledged by the signature; testator in the presence of two or more witnesses present at the same 1 See M. L. R. P. 391. 2 See 2 Bl. 491 et seq., and as to wills of land, see M. L. R. P. 391 et seq. 3 As to freemen of the city of London by 11 Geo. 1, c. 18, s. 17; as to York, 4 & 5 W. & M. c. 2; 2 & 3 Anne, c. 5; as to Wales, 7 & 8 W. 3, c. 38. See the question whether the custom ever prevailed over all England discussed in Williams on Executors, 2. And as to the custom of London, see Com. Dig. Guardian (G. 2); 2 Salk. 426; Hall v. 429 Car. 2, c. 3, s. 19. See 4 Anne, 529 Car. 2, c. 3, s. 5. 6 See cases cited in Limbery v. Mason, Com Rep. 451. 77 Will. 4 & 1 Viet. c. 26, s. 9. 8 Ib. s. 1. As to codicils, see M. L. R. P. 391. ments; two wit nesses; |