Piggott v. Jefferson. From the expressions used by Lord Tenterden in Tullock v. Dunn, I think that his lordship must have considered that what was proved, in that case, as an acknowledgment of the debt by both the executors, did not amount to evidence of a promise, by both of them, to pay the debt: but here I have the case of a clear written acknowledgment of the debt made by a sole personal representative, and signed by him: and, therefore, I think that I ought to make the common decree in a creditor's suit. *PIGGOTT v. JEFFERSON. Legacy-Statute of Limitations, 3 & 4 Will. 4, c. 27. 1841: 26th and 27th February. [*26] An executor who had possessed assets sufficient to pay a legacy, died leaving it unpaid, and having charged his real estates with his debts. The right to sue for the legacy as such, was barred by lapse of time. Held that it could not be claimed under the charge of debts A TESTATRIX, who died in 1808, gave a legacy of 2001. to Mrs. Piggott, the daughter of General Jefferson, and appointed the General her executor and residuary legatee. Mrs. Piggott came of age in 1815. Her father possessed assets of the testatrix sufficient to pay the legacy, and died in 1824, having, by his will, charged his real estates with payment of his debts. Mrs. Piggott died in 1838, without having been paid her legacy. Her personal representative now claimed it, with interest from a year after the testatrix's death, as a debt due from the General and payable out of his real estates, under the charge contained in his will, his personal estate being insufficient to pay it. Mr. Knight Bruce and Mr. Shadwell for the plaintiff. Mr. Russell and Mr. Bacon, for the defendant, contended that, as Mrs. Piggott was capable of giving a discharge for the legacy in 1815, when she attained 21, the plaintiff's claim was barred Piggott v. Jefferson. by 3d & 4th Will. 4th, c. 27, sect. 40, which enacts that no action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment or lien, or otherwise charged upon or payable out of any land or rent at law or in equity, or any legacy, but within 20 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 mean time, some part of the principal money or some. interest thereon, shall have been paid, or some acknow[*27] ledgment 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 20 years after such payment or acknowledgment, or the last of such payments or acknowledg ments, if more than one was given. Mr. Knight Bruce, in reply, said that the charge of debts in General Jefferson's will, created a trust, and that no length of time would bar a trust. THE VICE-CHANCELLOR:-I think that the plaintiff's demand is barred by length of time. Taking it to be now admitted that General Jefferson possessed assets of the testatrix sufficient to pay the legacy, the plaintiff must, in the first instance, show his right to sue for payment of it, as a legacy, out of the testatrix's personal estate. By the 40th section of the Act of Wil. 4th, the 20 years began to run from the time when Mrs. Piggott attained 21, which was 1815; and if the right to sue for the legacy is barred by lapse of time, how can you revive that right in another form? By possessing assets of the testatrix, General Jefferson became liable to pay the legacy, that is, he became, in a certain sense, a debtor to the legatee for the amount of it; but you cannot say that he or his estate continues liable, unless you show that the party claiming the legacy, has come in time to demand it out of the assets pos Wilson v. Beddard. sessed by him. You cannot, by treating him as a debtor, prolong the time for claiming the legacy. claim made by this bill cannot be sustained. Consequently, the *WILSON v. BEDDARD. New trial-Issue devisavit vel non-Heir. 1841: 26th and 27th February, 1st March, and 15th April. [*28] An heir at law is not entitled, as a matter of course, to have a second trial of an issue devisavit vel non. Will.-Signature.-Execution. If a testator, who is unable, from illness, to sign his will, has his hand guided in making his mark, it is a sufficient signature within the Statute of Frauds. ON the trial of an issue devisavit vel non, directed in a suit to establish a will, the jury found in favor of the will. A motion for a new trial was now made, on behalf of the defendant Richard Powell Williams, the husband of Mary Williams the testatator's heiress at law, on whose application the issue had been granted. The testator died in September, 1826. The will was made the day preceding his death, and when he was extremely ill. He signed it, not with his name, but with his mark; in doing which his hand was guided. The depositions of two of the attesting witnesses taken in the suit, tended to impeach the testator's competency. Those witnesses having died, their deposi tions were read at the trial. The motion was supported on the above grounds, and also on the ground that no medical persons had been examined as to the testator's competency. It was further alleged that there was a misdirection and omission in the summing up of the learned judge who tried the issne; and that, in a case like the present, where the inheritance was to be bound, it was a matter of course to direct a second trial, if the heir or a person claiming under him applied for it. Wilson v. Beddard. On the other hand, it appeared that Mr. and Mrs. Williams had acquiesced in the will for several years after the testator's death. Mr. Knight Bruce and Mr. Bethell, in support of the mo[*29] tion, cited Lord Darlington v. Bowes, (a) *Sherborne v. Naper,(b) Matthews v. Warner,(c) Pemberton v. Pemberton,(d) Winchilsea v. Wauchope, (e) Tatham v. Wright,(f) Slaney v. Wade,(g) Locke v. Colman, (h) Gibbs v. Hooper,(i) Cleeve v. Gascoigne,(k) Stace v. Mabbot,(1) Edwin v. Thomas,(m) Attorney-general v. Montgomery,(n) Warden, &c., of St. Paul's v. Morris, (o) O'Connor v. Malone.(p) Mr. Serjeant Talfourd, Mr. Jacob and Mr. Armstrong, in opposition to the motion, contended that the granting of a new trial of an issue devisavit vel non, was not a matter of course, but rested in the discretion of the court. They cited White v. Wilson,(q) Bootle v. Blundell,(r) Lorton v. Lord Kingston,(s) and Locke v. Colman,(t) where Lord Cottenham says: "In this court it is matter of discretion whether any second trial shall be had." Mr. Knight Bruce, in reply, said that there was no case in which a new trial of an issue devisavit vel non was asked for by the heir and refused by the court, except White v. Wilson: that that case was decided by Lord Erskine, who was not familiar with the principles and practice of the court: that, in Bootle [*30] v. Blundell, the heir give up the case: that, in *Locke v. Colman, Lord Cottenham, in the passage that had been re (a) 1 Eden, 270. (c) 4 Ves. 186. (d) 13 Ves. 290. (e) 3 Russ. 441. (f) 2 Russ. & Myl. 1. (g) 1 M. & Cr. 338. (h) 2 M. & Cr. 42. (i) 2 M. & K. 353. (4) Amb. 323. (1) 2 Vez. 553, (m) 2 Vern. 75. (n) 2 Atk. 378. (0) 9 Ves. 169. (p) 1 Maclean & Robinson's Rep. (Irish) 468. (g) 13 Ves. 87. (r) 19 Ves. 494. (s) 5 Clar. & Finn. 269. (t) 2 Myl. & Cr. 42; see also ibid. 635. Wilson v. Beddard. ferred to, was speaking of issues which it was in the discretion of the court either to grant or to refuse that in ordinary cases, such as questions of legitimacy, the court might decide without directing an issue; but an heir had a right to demand an issue to try the validity of a will by which he was disinherited, notwithstanding the will had been clearly proved by evidence taken in the suit; that the object in directing an issue devisavit vel non, was not, as in other cases, to inform the conscience of the court; for the conscience of the court had nothing to do with it: that what distinguished the issue devisavit vel non from all other issues whatever, was that this conrt had no power, by itself, to declare what was the will of an individual, but was enabled so to do in consequence only of what had taken place in a court of law: that the heir had a right to have the will considered with reference, exclusively, to what had passed in the court of law; and this court had no power to look either at the pleadings or the evidence in the cause, or at anything whatever which had not been before the jury; that the present case was a very doubtful one; and, therefore, the court ought not to refuse a new trial of the issue, even if it had power so to do. 15th April.-THE VICE-CHANCELLOR :-This case came before me on a motion for a new trial of an issue devisavit vel non. It appears that a person of the name of John Parker Wilson made a will, (or is said to have made a will,) dated the 7th of September, 1826, and died the following day, leaving Mary, the wife of Richard Powell Williams, his heiress at law. The will was made on the day before *he died, and when [*31] he was extremely ill. The three witnesses to it were Mr. Wood, an attorney who prepared it, Durant, a boy 14 years of age, and a person of the name of Noake. The will was signed with the deceased's mark, and not with his name. The nature of it was this, that, with respect to the real estate in question, there was a devise to the testator's nephew, John Wilson Williams, (who was the only child of John Powell Williams and Mary his wife,) with an executory devise over to the plaintiff, |