Jones v. Pugh.

entrusting him and his co-partners with moneys to be laid out on securities, sometimes in the names of the clients and some. times in the defendant's name, under a private trust and confidence that the names of the clients should not be disclosed. He

added, that no trust was declared by the mortgage deed [*471] of 1834, but *the mortgage money was made payable to the defendant absolutely, and he was authorized to give a good discharge for it, when paid, and to transfer the security; and that he had no knowledge as to that or any of the other mortgages, except what he had obtained in the course of his confidential employment as solicitor to the several mortgagees; and that the deeds, &c., in his power, were their property.

The plaintiff excepted to the answer, on the ground that the defendant ought to have given the discovery and set forth the list required by the bill: and the Master allowed the exceptions. The defendant then took exceptions to the report.

Mr. Betheil and Mr. Cole appeared in support of those exceptions; and

Mr. G. Richards and Mr. L. Wigram, in support of the report.

The Vice-Chancellor held that the defendant would not have been bound either to give the discovery or to set forth the list, if he had availed himself of his professional character either by demurring or by pleading to the bill; but that, as he had thought proper to put in an answer, and as the answer was filed before the General Orders of August, 1841, (a) came into operation, he was bound to answer fully: and, on that ground, his honor overruled the exceptions to the Master's report.

The Lord Chancellor, however, on appeal, reversed his honor's order, his lordship being of opinion, on the authority of Havey

(a) The 38th Order allows a defendant to protect himself by answer, from answering any interrogatory to which he might have demurred.

Ward v. Arch.

v. * Clayton, (a) that the present case was one of the ex- [*472] ceptions to the rule that a defendant who answers at all, must answer fully.(b)

WARD v. ARCH.

Statute of Limitations.-3 & 4 Will. 4, c. 27.-Annuity.-Trustee and cestui que trust.

1842: 11th Feb.

A testator who died in 1795, devised his real estates to trustees to sell, and out of the interest of the proceeds, and out of the rents of the estates until they should be sold, to pay certain annuities. No payment had been made in respect of any of the annuities for more than 20 years before the bill was filed; but the trustees entered into possession of the estates on the testator's death, and the surviving trustee continued in possession until about 11 years prior to the filing of the bill. Held, that the plaintiff's right to the annuities was not barred by the Statute of Limitations.

EBENEZER WHITING, by his will dated the 4th of August, 1796, gave the residue of his real and personal estate to John Woods and two other persons, their heirs, executors, &c., in trust to sell and invest the proceeds in government securities, and, out of the dividends thereof, or the rents of his real estates until the same should be sold, to pay, to his wife, Elizabeth Whiting, for her life, an annuity of 300l. by quarterly payments, on the days therein mentioned, the first payment to be made on such of those days as should happen next after his death; and to pay, to the plaintiff Frances Ann Ward, for her life, an annuity of 201., in like manner; and to pay the remainder of the dividends and rents to Elizabeth Whiting for her life; and, after her death, to pay to the plaintiff, Frances Ann Ward, for her life, a further annuity of 30%.; the first payment to be made on such of the before-mentioned days as should happen next after Elizabeth Whit

(a) 2 Swanst. 221, note.

(b) See 1 Phill. Rep. 96,

Ward v. Arch.

ing's death and the testator gave all the residue and [*473] remainder of *his estate and effects, after payment of the annuities, to his four sisters.

The testator died on the 2d of September, 1795. Upon his death the trustees entered into possession of his real estates: and, his personal estate being wholly insufficient to pay Elizabeth Whiting's annuity of 3001, they, as the bill alleged, paid her 1007. a year, during her life, out of the rents of the real estates; but they never made any payment whatever, to the plaintiff, Frances Ann Ward, in respect of either of the annuities given to her by the will.

Elizabeth Whiting died on the 27th of March, 1804; and the plaintiff, Frances Ann Ward, was her executrix; but the trustees did not make any payment to her, in respect of the arrears of Elizabeth Whiting's annuity, except that, shortly after that lady's death, they paid the plaintiff 50%. out of the rents of the estates.

John Woods survived his co-trustees, and continued in possession of the estates until his death. He died in 1826.

In May, 1837, the bill was filed to have the trusts of the will carried into execution, and to have the arrears of the three annuities raised by sale of the testator's real estates, and provision made for the future payment of the two annuities given to the plaintiff Frances Ann Ward.

Some of the defendants insisted, by their answers, that the plaintiff's claim to the annuities and the arrears thereof, was wholly barred by the Statute of Limitations; or, at all [*474] events, that she could not claim *any arrears of the annuities given to her, except for six years prior to the

filing of the bill.

Mr. Walker and Mr. Wilcock, for the defendants who relied on the Statute of Limitations, said that the last payment in respect

Ward v. Arch.

of the annuity of 300l., was made shortly after the year 1804: that an annuity was a legacy; and that, by the 42d section of the Statute of Limitations (3 & 4 Will. 4, c. 27,) it was enacted that no arrears of rent or of interest in respect of any sum of money charged upon or payable out of any land, or in respect of any legacy, should be recovered but within six years next after the same respectively should have become due: that Frances Ann Ward's claim to the annuities of 201. and 30%, was barred by the 40th section of the Act, which enacts: that no action, suit or other proceeding shall be brought to recover any sum of money charged upon or payable out of land, 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. Sheppard v. Duke.(a)

Mr. Bethell and Mr. Elderton, for the plaintiffs, said that the trustees entered into possession or receipt of the rents of the estates charged with the annuities, immediately after the testator's death; and that John Woods, the surviving trustee, continued in such possession or receipt until the year 1826; that, when the relation of trustee and cestui que trust was once constituted, the doctrine of adverse possession (which was defined by the third section of the Act) did not apply that the trustees, by receiving the rents, must be considered to *have received [*475] the annuities; and their receipt was the receipt of their cestuis que trust. They referred to the 15th section of the Act, and also to the 25th, which enacts: that when any land or rent shall be vested in a trustee, upon any express trust, the right of the cestui que trust, or any person claiming through him, to bring a suit against the trustee or any person claining through him, to recover such land or rent, shall be deemed to have first accrued, according to the meaning of the Act, at and not before the time at which such land or rent should have been conveyed to a purchaser for a valuable consideration, and shall then be

Lord Amherst v. Duchess of Leeds.

́deemed to have accrued only as against such purchaser and any person claiming through him.

Mr. G. Richards, Mr. Stuart, Mr. Hislop Clarke, Mr. Taylor and Mr. Freeling, were the other counsel in the cause.

THE VICE-CHANCELLOR :-The trustees were trustees to pay the annuities; and their possession of the estates out of which the annuities were directed to be paid, continued down to the year 1826; therefore, it is plain that the objection to the bill founded on the Statute of Limitations cannot be supported.

[*476] LORD AMHERST V. THE DUCHESS DOWAGER OF LEEDS.

1842 18th Feb.

Will.-Construction.-Legacy.

Testator, by his will, gave an annuity of 1,000l. a year to his wife, for her life, and directed his plate and furniture at H., his family mansion, to be sold. By a codicil, he desired that his wife should be accommodated with any plate she might choose for her own use, and that an inventory should be made of it, and that it should be returned at her death: "and I give to her absolutely any one of my silver inkstands which she may select: I also give to my dear wife, any part of the beds, bedding, linen, carpets, or other household furniture at H, which she may require for her own use, as likewise any wardrobes or glass cases at H., according to her wish; and I give to her, in addition to all other provisions, 400%. per annum, during her life, to be applied to the rent of any residence she may choose to live at, and to be raised and paid in like manner as the annuity bequeathed to her by my will."

'Held, that the wife was entitled, absolutely, to such parts of the furniture as she might select; and that she was entitled to be paid the 4004, a year, although she had fixed her residence, with her son, at the family mansion.

THE late Duke of Leeds, by his will dated the 30th of July, 1836, gave to his wife Charlotte, Duchess of Leeds, the sum of 2,000l. and certain specific legacies; and he gave his freehold estates to the plaintiffs, their heirs, executors, &c., in trust as a fund for the discharge of his debts, and all mortgages and in