37. LIPO 'INGS. for maintenance as aforesaid, should be equally divided and paid to and amongst the survivors and survivor of them, share and share alike, at such time and times as his, her, or their original legacy should become payable. And the testator appointed Edmund Buscall his executor. Sarah Buscall died in the testator's lifetime. The testator died on the 31st of January 1787, leaving Philip Buscall, John Buscall, James Buscall, and the Plaintiffs, and Edmund Buscall surviving; and Edmund Buscall, shortly after the testator's decease, proved the will, and possessed the testator's personal estate, and paid all the debts and legacies, other than the legacy of 4007., and set apart the sum of 4007. to answer that legacy. In the year 1799, Edmund Buscall died, having appointed the Defendant, James Munnings, his executor, who proved his will. The bill, which was filed on the 18th of August 1834, stated that Philip Buscall died in the year 1797, and that John Buscall died in the year 1800, under the age of twenty-four years, leaving the Plaintiffs, and James Buscall surviving him; and that James Buscall died in the year 1814, intestate, and without having been married, leaving the Plaintiffs his only next of kin, and that they had commenced proceedings, and intended forthwith to procure letters of administration to his effects. It alleged, that the Defendant had possessed himself of the 400l., or of the securities upon which that sum had been invested, and that he had refused to pay it to the Plaintiffs, but intended to convert it to his own use; and it charged that he had received the interest or dividends, and had converted them to his own use. The bill prayed that it might be declared that the Plaintiffs, in their own right, and as the next of kin of James Buscall, in the events which had happened, were beneficially interested interested in, or entitled to, the whole of the principal sum of 400, or the stocks or funds or other the securities, if any, upon which the same had been invested, and also the interest and dividends accrued upon or in respect of the same; and that the same might be paid or transferred or accounted for by the Defendant to the Plaintiffs; and that the necessary accounts might be taken; that the Defendant might be restrained, by injunction, from parting with the 400l. or the securities upon which the same had been invested; and that that sum, or such securities, and the arrears of interest and dividends received by the Defendant, might be paid or transferred into the name of the Accountant-General, in trust in the cause. The Defendant, by his answer, stated and admitted that Edmund Buscall, out of the personal estate of the testator Matthew Buscall, paid all his debts and funeral and testamentary expenses, and all the legacies given by his will, except the legacy of 400l., and thereout set apart the sum of 4004. given, in trust, for the purposes before mentioned, and invested the same on mortgage, at 5 per cent. The Defendant then stated, that the sum of 4007., so invested, remained upon that security until about two years after the decease of Edmund Buscall, when the mortgage was paid off; and that the Defendant then invested the mortgage-money, in his own name, in the purchase of the sum of 4107. Navy five per cent. annuities; and that in the year 1813 or 1814, the Defendant sold out that stock, and did not afterwards invest the produce, but retained it in his own hands. The Defendant admitted that he received the interest on the mortgage, and the dividends on the sum of stock; he stated that certain payments had been made, by Edmund Buscall and by himself, to a brother of John Buscall, on his behalf, on account of the interest of the 400, the last of which payments was made on the 1897 PHILL ย MUNN 1837. PHILLIPO v. MUNNINGS. 1st of March 1801, and of which 167. had been paid by Edmund Buscall and 401. by himself; and that the dividends or interest received by him, (the Defendant,) amounted to 246l.; or thereabouts, and that, under the circumstances before mentioned, he had converted and applied only such part of such dividends or interest to his own use, as had not been paid over by him as therein-before stated. The Defendant also stated that he believed it was a fact, that John Buscall had never been heard of since the year 1800, except as having died at or about that time; and the Defendant admitted that he had never heard of him since that time. The Defendant stated that he had not been able to ascertain whether John Buscall attained the age of twenty-four years; but that he had been informed and believed that Philip Buscall died in the lifetime of John Buscall, and about the year 1797, and that John Buscall left James Buscall and the Plaintiffs surviving him. The Defendant, by his answer, also-claimed, in bar of the suit, the same benefit of the statute of limitations, and of the laches of the Plaintiffs, in putting their claim in suit, as if he had pleaded the same in bar to the bill. The Plaintiffs, after the filing of the original bill, procured letters of administration to John Buscall and to James Buscall; and, by supplemental bill, they stated these administrations, and insisted that all difficulty as to the time of the death of John Buscall was removed by their obtaining administration to him. Affidavits were subsequently made, which tended to prove that John Buscall died in the month of January 1800, under the age of twenty-four; and which shewed that dividends to the amount of 3921. 3s. 2d, would have accrued, between the year 1814 and the present time, upon the stock which had been sold out and upon the the other stocks into which, if not so sold, it would have been converted. The Vice-Chancellor, upon motion, supported by these affidavits, ordered that the Defendant should transfer into the name of the Accountant-General, in trust in the cause, 4301. 10s. New 3 per cent. annuities, being the amount which the sum of 4107. Navy 5 per cent. annuities, admitted by the Defendant's answer to have been sold out by him in the year 1813 or 1814, would have produced if the same had not been sold out by him, and had been standing in his name in the books of the Bank on the conversion of Navy 5 per cent. annuities into 4 per cent. annuities, and the subsequent conversion of the last mentioned annuities into New 3 per cent. annuities; and that the Defendant should pay into the Bank, with the privity of the Accountant-General, to the credit of the cause, the sum of 5981. 3s. 2d. cash (a), subject to the further order of the Court. The Defendant now moved that the Vice-Chancellor's order might be discharged. Mr. Wigram and Mr. Rogers, in support of the motion. The fortieth section of the recent statute of limitations (b) is a complete bar to the Plaintiffs' demand in this (a) This amount was produced by adding the beforementioned sum of 3921. 3s. 2d. to the sum of 206/, which last was the amount admitted to have been received by the Defendant for dividends or interest, after deducting therefrom the sums which he alleged that he had paid on account of John Buscall. (b) 3 & 4 W. 4. c. 27. This act 1837. PHILLIPO v. MUNNINGS. 1837. PHILLIPO v. MUNNINGS. this suit. It will be argued for the Plaintiffs, that this is not a suit for a legacy, but a suit to make the Defendant answerable, as a trustee. That argument, however, goes too far; for every executor is a trustee, and every suit for a legacy is a suit to compel the performance of a trust; and, if the argument were to prevail, the consequence would be, that there would be no case to which this part of the statute could apply, and the express provision which the legislature has made, would be entirely inoperative. Murray v. The East India Company. (a) The LORD CHANCELLOR [without calling on Mr. Wakefield and Mr. Goodeve, who were counsel on the other side;] A man, who, being in possession of a fund which he knows to be not his own, thinks proper to sell it and apply the produce to his own use, certainly does not come before the Court under circumstances which entitle him to much indulgence; and the only question is, whether, by the statute which has been referred to, I am prohibited from entertaining this suit to make him responsible for that breach of trust. The whole fal be brought to recover any sum lacy ment 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." (a) 5 B. & Ald. 204. |