HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0819 and id is 1 raw text is: ATTORNEY-GENERAL V. EARL OF CRAVEN
state of things the Court said that there had been a satisfaction. That shews that a
repayment by the executors of the husband will discharge his estate, and is a separate
and distinct case from this. This is much nearer Clough v. Bond (3 Myl. & Cr. 490),
which was to this effect: A son and a daughter were administrators, the daughter
being under coverture, a sum of money belonging to the estate was paid into a
banker's, in the names of the son and of the husband; the husband died, and the son
then applied the fund to his own purposes. The Court held that the estate of the
husband was liable to make good that amount. No doubt, if the money had been
transferred into the joint names of the two administrators, after the husband's death,
and they had jointly misapplied it, the estate of the husband would have been exoner-
ated and discharged.
In my opinion, therefore, this demand upon the estate of John Smith has not been
satisfied.
[390] Then it is said that there must be an account, in order to ascertain whether
Elizabeth Smith did or did not receive, from the estate of John Smith, her husband,
sufficient to answer this demand; and that, as that account can only be taken in the
presence of her legal personal representative, such legal personal representative is a
necessary party for the purpose of ascertaining the fact. In my opinion, the burden
of that proof lies on the Defendants and not on the Plaintiff. The liability of the
estate of John Smith is established, and the burden of proving its satisfaction falls
upon the Defendants, who resist that demand and dispute the liability. In my
opinion, the facts proved before me do not discharge that liability, and it therefore
still remains.
Again, it is stated that his estate has been administered and wound up in 1846.
No doubt that may create a considerable hardship, but if the liability exists, and is
neither barred by time nor by the acts of the parties, then, if any part of that estate
remains, it is liable to make good all demands upon it, although the parties themselves
may, many years ago, have intended to wind it up. (See Knatchbull v. Fearnhead, 3 Myl.
& Cr. 122.) Upon that part of the case I am of opinion that there are no sufficient
laches proved against this Plaintiff to disentitle her to any demand upon John Smith's
estate ; in the first place, I find that when she came of age, repeated demands were
made for her legacy, which was not a mere pecuniary legacy, but one subject to a
special trust which ought to have been carried into effect, so that the money might
have been then forthcoming. It is impossible to say that she acquiesced in its
remaining in the hands of James Grant Smith, when she could have done no act of
acquiescence until 1835, when she attained twenty-one.
[391] I cannot accede to the argument of Mr. Follett, that James Grant Smith
must be treated as an executor of the testatrix, and that all his receipts are to be
attributed to him in the character of a legal personal representative, upon the ground
that his wife was named as one of the executrixes in the will, for she never proved
the will, and ultimately disclaimed; and though it be true that the probate by one
executor of a will inures to the benefit of another, still it does not make the other
liable, and no person can be made an executor or executrix who does not choose to
act. It may be that James Grant Smith acted as executor de so tort, but, looking
to his conduct in these matters, I treat him merely as the agent of Elizabeth Smith
and of John Smith, who was the person really responsible for the whole.
In my opinion the estate of John Smith became liable for the payment of this
legacy during his lifetime, and that liability has never since been discharged. Con-
sequently this is a debt against his estate, and his assets are liable for its payment.
[392] THE ATTORNEY-GENERAL v. THE EARL OF CRAVEN. Feb. 7, 8, 11, 1856.
[S. C. 25 L. J. Ch. 291; 2 Jur. (N. S.) 296. See Chamberlayne v. Brockett,
1872, L. R. 8 Ch. 210.]
When lands are given to charity purposes on the happening of a particular event,
there is a resulting trust in the meanwhile; but where real estate was vested in A.
in trust, out of the rents, to keep it ready for the reception of plague patients
910
21 BEAV. 390.](ViewImageLocal?handle=hein.slavery/ssactsengr0819&div=1&collection=&method=preview&ext=.png&size=3)