Reports of Cases Heard and Decided in the House of Lords on Appeals and Writs of Error Volume 4; During the Sessions 1831[-1846] (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1839 Excerpt: ...demands on the personal estate are satisfied, to dispose of the residue by way of bounty to such individuals as he may think fit to select, it is competent to him to select those creditors who have a moral demand upon him, though their legal demand is barred by the statute; or that, as it is competent to every individual, in his lifetime, to waive the benefit of the Statute of Limitations, so may a testator waive it in his will, so as to prevent its operation after his decease upon the claims of his creditors. All the cases on this subject were fully discussed in the Court below. Fergus v. Gore (A) was one of those cases. There Lord Redesdale laid down this clear rule: "That a devise in trust for the pay(A) i Sch. & Lef. 107. ment of debts does not prevent the setting up the statute J838. if the time had run before the testator's death; for if it has run in the lifetime of the testator, the debts are presumed to be paid; but where a provision is made by will for payment of debts, the statute does not run after the death of the testator. It is an acknowledgment of the debt." Here the statute had not run at the death of the testator, and therefore the provision in his will prevents it from taking effect afterwards. To hold that the statute is not a bar here will not deprive the executor of any relief to which he may be justly entitled. The executor is not the trustee, but the representative of the testator, and he may relieve himself by showing that he has not the means of paying the debts. Burke v. Jones (i), was decided by Sir T. Plumer, after a consideration of all the cases. The doctrine in that case may well be admitted; but it does not affect the question now under discussion; for there the statute had taken effect before the death of the ...