statute at law, for of that defence he may still avail himself, but from taking advantage of it against a suit seeking to charge him with assets in equity."-p. 269.

"The effect of this construction in the case of wills will be, that a man's debts, if he chooses so to charge them upon his personal estate, provided they be not barred at his decease, will be payable notwithstanding any length of time that may afterwards elapse. I know not that courts of equity, any more than courts of law, ought to lean against allowing a man to make such declarations of his intention to have his debts paid; and I have already stated, that if this be not the meaning of the clause, I cannot see to what it applies, or upon what subject matter it can operate. If it be construed as a direction by the testator to pay the debts, without regard to the meaning of the statute, after his decease, the words are quite rational and intelligible, and at the same time expressive of an honest and conscientious intention; for a man ought to wish to discharge his debts, notwithstanding the lapse of time, if he knows they are unpaid, and not avail himself of the argument which lapse of time may furnish in dubio.”—p. 275.

One of the most remarkable features in this judgment is the great disproportion between the foundation laid for it, and the basis actually necessary, under the circumstances of the particular case, for supporting a decision contrary to that of the Court below. For any thing required by the circumstances of the case to support the claim of the plaintiffs, or for aught that was argued or contended for at the bar by the counsel for the plaintiffs, the new doctrine as to the effect of the common clause in wills directing payment of debts out of the testator's personal estate, seems to have been quite gratuitously introduced. The circumstances of the case before the Court were extremely special. First, there is the mistake of the testator as to the nature of the property at Tibberton; and secondly, the fact of the charge of debts upon that estate supposed to be freehold, being made by a barrister, who must be presumed to have been fully aware of the legal consequences of directing that charge. From the first of these circumstances it follows, that on the face of the will there is no superfluous direction, no common clause for payment of debts out of personalty; for where a testator has both real and personal estate, a direction to pay debts out of the latter is not superfluous, since he may substitute other adequate means for

the natural or primary fund, if he think fit, though he cannot absolutely exempt that fund from its liability. If this inference be correct, a great part of Lord Brougham's judgment, we submit, becomes inapplicable to the case under appeal. The second circumstance, that of the testator being a professional man, coupled with the mistake as to the tenure, excludes all reasonable doubt respecting his intention to convert his debts into trusts, and consequently to prevent the statute from running against them. But these special circumstances, which afforded almost demonstrative evidence that the testator desired to take no advantage of the statute-evidence almost as conclusive as if he had declared such a desire by express words-could never be expected to concur in any other case. They might have furnished a safe and satisfactory ground, therefore, for deciding in favour of the trust in the particular case, without in any manner interfering with the rights of executors or creditors, and without establishing any general principle which should go to the recognition of the right of testators to create trusts, as against executors, for the payment of debts out of personal property. No greater relief was

sought at the hearing of the cause than a confirmation, under the special circumstances, of the trust raised upon property supposed to be freehold, without prejudice to the rights of the executors, or of the creditors whose claims were not legally barred by the statute. At the Rolls all interference with the rights of the executor was distinctly disclaimed by the plaintiffs' counsel; the executor's exclusive right, as against all third persons to administer the personal estate of his testator1 was not attempted to be denied; and even before the Chancellor, the right of the testator to create a special trust of his personal estate, was not contended for, except subject to the qualification of not breaking in upon the rights of creditors. How could the case, indeed, be otherwise argued by a learned counsel, who has himself, in a work of great authority, recognised the position, that " however personal property may be bequeathed, it must go to the executors upon trust in the first place for the payment of debts generally?" The case of Spode v. Smith,3 was cited at the bar in support of the pro1 Co. Litt. 289b. Co. 9, 39.

3 3 Russ. 511.

2 Sugd. V. and Purch. 499. 6th edit.

position that a testator might make a specific bequest of his leasehold and other chattels, which, subject to the abovementioned qualification, is undeniable; but it was not brought under the notice of the Chancellor, that in Spode v. Smith the executor bonâ fide assenting to such a specific bequest, under the conviction that there were sufficient assets for the payment of the testator's debts, was nevertheless held liable as for a devastavit, when the sufficiency of the assets became doubtful. It is clear, therefore, that the rights of the executor must be co-extensive with his responsibility for the exercise of those rights; and in fact the arguments at the bar in support of the trust were not founded upon any general proposition in derogation of the rights of executors, but upon the special circumstances of the case. In general the remedy sought by a plaintiff exceeds considerably the measure of relief which the law can afford him, or which he expects to be afforded him. In the case before us, this observation must be reversed. Nothing can be more narrow than the ground on which the relief was claimed; nothing more wide, and sweeping, and innovating, than the principle on which the relief was afforded. The consequences of the new doctrine are but partially adverted to in his lordship's judgment; nor is it easy, or possible, perhaps, to foresee at once all the consequences which may result from it. It is admitted, that it will have the effect of virtually repealing the Statute of Limitations, in all cases where a testator has inserted in his will the common direction for payment of debts out of personalty, and a claim is made against his estate which might heretofore have been successfully resisted in equity as well as at law, on the ground of lapse of time. But it is said, that this is a consequence which ought not to be deprecated, because the obligation to pay a debt barred by the statute remains in foro conscientia, that this obligation extends to the representatives of the debtor, and that testators should be prevented, if possible, " from sinning in their graves." This is one view, and it may be designated the sentimental or romantic, and, in some sort, the touching view of the matter. There

This expression, which has become one of the current bye-phrases always used in courts of equity on the fitting occasion, fell from Sir John Strange in Thomas v. Brittnell, 2 Ves. sen. 314.

1

is another view on which the framers of the act of 21 Jac. 1, c. 16, proceeded, and which is founded partly on the policy of fixing a limit to litigation, and partly on the presumption that after a certain lapse of time a debt has been paid, and the debtor's voucher destroyed or lost, and on the unsentimental hypothesis, that a roguish soi-disant creditor is more likely to sin out of his grave, than an unconscientious creditor in it. Whether it would have been the wiser course to uphold strictly or to relax the principle of the statute, and whether further relaxation of that principle consist with policy or justice, are questions upon which opinion has varied much among those who have administered the law, and may still continue to vary among those who seek to reform our legal institutions. In Hellings v. Shaw, Chief Justice Gibbs observed, that if the Courts could retrace their steps, and see all the consequences that have arisen, they would have deemed it better to adhere to the precise words of the statute, than to attempt to relieve in particular cases, And Dallas J. said, that private justice as well as public convenience demanded that plaintiffs should be urged to use due diligence, and that a defendant should not be under the necessity of preserving his vouchers beyond a due time, for how would they accumulate! and his witnesses would die. ever may be the expediency of the statute, it is plain that a testator ought not to be deprived of its benefits, unless he has manifested an intention to waive them either by express words or legal implication. In the particular case which the Chancellor was called upon to decide, there was a concurrence of special sircumstances which furnished a satisfactory clue to the testator's intention to waive the benefit of the statute; but ́it seems too strong a measure to eviscerate a general principle from the extremely special circumstances of that particular case, which general principle goes to fix the like intention on every testator, whose will contains a clause common to ninety wills out of a hundred, where there is, ex concessis, no clue whatever to such intention, and where the inference of intention is founded on this extraordinary reasoning, that because a man declares in his will his desire to fulfil a legal obligation without more, he shall be presumed by such declaration to

But, what

have waived the legal protection by which that obligation is limited. But the virtual repeal of the statute of limitations in the vast number of cases to which the principle of the decision applies, is but one of the consequences which will result from the new doctrine. That doctrine, if established, will in all those cases, that is to say, in nine cases of testamentary dispositions of personalty out of ten, convert legal into equitable assets, and in a great number of them create a necessity for suits in equity for the administration of the assets, which necessity would not otherwise have existed-it will deprive creditors of their legal priorities, and open a door to unjust preferences of simple contract to specialty creditors-it will encourage stale demands, invite fraudulent speculators, create a perpetuity of litigation, and raise blots upon the titles to a large portion of the leasehold property in the kingdom, by affecting such property with new liabilities and a new species of incumbrance, of which the first notice is the judicial announcement that there is no difference, in point of principle or consequences, between a charge upon real and a charge upon personal estate for the payment of debts; a doctrine unsupported by authority, and not even noticed in any printed book, save in a note, by way of quære, to a case, wherein it was mooted a hundred years ago by a reporter, and apparently no sooner mooted, than rejected.

There was a second question raised in the cause, whether the advertisement published in the Gloucester Newspapers by the administratrix took the debt out of the Statute of Limitations, supposing the will to be insufficient for that purpose. The authority relied on for the affirmative of this question, was that of Andrews v. Brown,1 in which it was held, " that if a man has a debt due to him by note, or a book debt, and has made no demand of it for six years, so that he is barred by the statute of limitations, yet if the debtor after the six years puts out an advertisement in the Gazette, or any other newspaper, that all persons who have any debts owing to them from him will apply to such a place, that they shall be paid; this (though it were general, and therefore might be intended of legal subsisting debts only,) yet amounts to such an acknowledgment of that debt which was barred, as will 1 Prec. in Ch.

P.

385.