BRIGHT v. LARCHER. [*135] [ *136] In my that there is a trust of this fund, because there is a trust of It is said that there is this distinction between a creditor and a legatee, viz. that a creditor might have gone against this particular fund at any time, but that a legatee could not have come upon it until after the death of the annuitant, and that therefore, as there was no other fund for the payment of the plaintiff's legacy, *this trust fund first became applicable to that purpose at that period. I mean to express no opinion whether the statute would apply to such a case, or whether, in the absence of a decree in this Court or a judgment at common law against the assets quando acciderint, the statute would apply and prevent a legatee from obtaining payment out of assets which did not accrue until upwards of twenty years after the testator's death; but assuming the law on this point to be in favour of the plaintiff, I am still of opinion that the burthen of proof lies upon him to establish that there was no fund to pay his legacy previously to that period; and, assuming that there was a trust, upon the death of the annuitant, for payment of such debts and legacies as were then payable and, subject thereto, for the residuary legatee (which is putting it in as favourable a manner as it can be put), that it would not let in debts which were already barred by the statute or let in legacies, unless it could be established by the legatee that there was no other fund applicable for their payment. It cannot, I think, be put higher than that it is a trust for payment of such legacies as the general personal estate has not already been sufficient to pay: if so, it would make it incumbent upon the legatee to prove that fact before he could contend, with success, that this fund was held in trust for him, and only subject thereto in trust for the residuary legatee. I do not think this is a case in which it would be necessary to have the legal personal representative here, although it would be, if it were necessary to make a decree for the administration of the personal estate. But regarding this in the most favourable light in which it can be regarded for the plaintiff, and as the LORDS JUSTICES appear to have regarded it, viz. that upon the *death of the annuitant, this fund formed part of the general personal estate, and applicable to the payment of all such legacies as the personal estate already has not paid or which were not barred by time, and subject thereto for the residuary legatee, then it would let in the legacy of 150l. ordered by the LORDS JUSTICES to be paid, because the right to receive it did not accruo until after the death of Harriett Offord Hinson, but not legacies which were payable twenty years before that period, and consequently not the other two legacies, one of which was payable three months after the death of the testator, and the other at the end of twelve months; the words being, "as soon as convenient," which would not postpone it after that period. I am of opinion, therefore, that in this case there is no trust in favour of the plaintiff, and not being a trust in favour of the plaintiff that the statute applies. His case fails, and the bill must be dismissed with costs. [The plaintiff appealed from this decree, as reported in 4 De G. & J. 608, but the LORDS JUSTICES dismissed that appeal with costs upon the grounds stated in their judgments, which are there reported as follows:] THE LORD JUSTICE KNIGHT BRUCE: The bill in this case, which was filed in 1858, seeks payment of a legacy of 100l. given by the will of a testator who BRIGHT ፖ. LARCHER. [ *137 ] [4 De G. & J. 610] ago. died in 1822. The legacy was payable in 1822 or 1823, if there were funds to pay it. If it was payable out of the personal estate alone, of course the bill fails from lapse of time. But it is said that the legacy is charged on the testator's real estate at a postponed period; that is, that it is to be paid out of the proceeds of the sale of the real estates, which sale was to be deferred till the death of an annuitant, who died a few months Without giving an opinion whether this is the case, I assume it to be so; still the personal estate is the primary fund in every sense, although it may not be the only fund for the payment. There is no personal representative of the testator before the Court, but there is evidence of the amount of the personal estate, from which it is impossible to come to the conclusion that the personal estate, if properly administered, is not sufficient to pay at least a part of this legacy. In such a state of circumstances the bill comes too late, even if the real estate was in any sense chargeable, because the personal estate is the first fund. In every view the suit fails. I am not for giving the plaintiff leave to amend. The dismissal of the bill must stand, and with costs. THE LORD JUSTICE TURNER: paid out of the same fund. The plaintiff's case rests on the assumption that all the legacies are on the same footing as the legacy of 150l., and are to be This is not my view, nor was it the view of the Court at the time of the decision in the former suit, The ground of the decision there was, that the legacy of 150l. was not payable until after the death of the annuitant, and that it was plain from the will that the whole of the fund produced by the sale of the real and personal estate, except that portion set apart to answer her On this ground the COURT held that the testator intended the legacy to be payable out of the fund reserved for the annuity. But this is not the Icase with the other legacies, which are payable immediately out to the best of my remembrance. annuity, was divisible before her death. of the personal estate. Then the question arises whether after this lapse of time, the plaintiff's having brought the suit to a hearing *in an imperfect state, the Court ought to give leave to amend the bill. I do not think it ought. I never knew a case in which the plaintiff was less entitled to this indulgence. The plaintiff had notice of the objection in the answer of the defendants. The BLAGROVE . COORE. (27 Beav. 138-139.) A testator directed his furniture in Gloucester Square to be applied in payment of his debts, and in a subsequent part of his will, he bequeathed his furniture in England to his sisters. The testator removed the furniture in Gloucester Square to another residence: Held, that it did not pass to his sisters. Bequest of 1001. each to the testator's sisters, and his ornaments to be equally divided amongst the unmarried ones: Held, that the class of unmarried sisters which consisted of two widows was to be ascertained at his death (1). THE testator, Henry John Blagrove, by his will, dated in February, 1851, gave his furniture, &c. in Jamaica to his wife. He then bequeathed as follows: "I direct my executors to sell and dispose of the house, furniture, fixtures and appurtenances situate in Gloucester Square, Hyde Park, London, and out of the proceeds to pay my just debts and testamentary as well as funeral expenses." In a subsequent part of his will he gave as follows: "I bequeath to my beloved sisters, each the sum of 100l., free of legacy duty, and all my ornaments and furniture in England to be equally divided amongst the unmarried ones." The testator died in 1854. The chief clerk found, that subsequently to the date of his will, and in October, 1852, the testator sold the house and part of the furniture, fixtures, &c. in Gloucester Square, and the remainder was, at the time of his death, in the house No. 8, Southwick Place, Hyde Park, and had been subsequently sold by his executors for 5091. Questions arose, first, whether the 5091. was applicable to the payment of the debts or belonged to the sisters; secondly, whether the class of unmarried sisters was to be ascertained at the date of the will or at the testator's death. Mr. F. O. Haynes for the plaintiff, the infant son of the testator, contended that the furniture and other effects, which at the date of the testator's will were in his house in Gloucester Square, and at his death were still existing in specie, wore subject to the trust for payment of his debts, &c. and were not included in the subsequent specific bequest to the testator's sisters. Mr. Lloyd, for the testator's two sisters who were unmarried at his death, claimed the 5091. 9s. 6d. as a specific bequest, contending, that at the death, the furniture no longer answered the description of being situated in Gloucester Square, and that if the two bequests contained in different parts of the will were inconsistent, the latter must prevail. (1) The primary meaning of the v. Walley (1883) 26 Ch. D. 575, 54 word "unmarried" is never having been married: In re Serjeant, Mertens L. J. Ch. 159. 1859. June 14, 28. Rolls Court. [ 27 Beav. 138] [139] 352 BLAGROVE t. COORE. 1859. CH. 27 BEAV. 139. Mr. Selwyn and Mr. Nalder for the executors. The MASTER OF THE ROLLS was of opinion that the portion of the furniture and effects (other than ornaments) which at the date of the testator's will were in his house in Gloucester Square, Hyde Park, and at the date of his death were still existing in specie, was not included in the specific bequest to the testator's sisters, but that such portion of the same furniture and effects as came under the description of ornaments was included in such specific bequest. He also held, as to the produce of the sale of such ornaments, that the sisters who were unmarried at the testator's death formed the class which was to take it, and that consequently, such produce was divisible between Lucy Elizabeth Gardner, widow, and Harriet Shepherd, widow, the two sisters of the testator who were unmarried at the time of his death. 1859. June 2. Rolls Court. ROMILLY, THOMAS v. RAWLINGS. (27 Beav. 140-143; S. C. 5 Jur. N. S. 667.) A solicitor declined answering some interrogatories, on the ground that he had obtained all his information "whilst acting as the solicitor" rule as to professional privilege. the A solicitor said he had obtained his information "either as a creditor or as the solicitor" of his client: Held, that this statement must be taken most strongly against the solicitor, and that he was bound to give the discovery. THIS suit was instituted by Thomas against Rawlings and his solicitor Stubbs. The plaintiff claimed to be entitled to a mortgage on a lease granted to the defendant Rawlings, and dated the 23rd day of June, 1854. His claim was founded on an equitable agreement executed by Rawlings in April, 1853, prior to the lease, and an award upon a reference to arbitration in 1858, which had been made in an action brought by the plaintiff against Rawlings. The lease was in the possession of the defendant Stubbs, the solicitor of Rawlings, who claimed a lien on it for money lent and costs. The bill prayed a declaration, that Rawlings was a trustee of the lease for the plaintiff, and that Stubbs had no lien on it, and that if he had, as against the plaintiff, then that an account might be taken, and that on payment of what might be found due to Stubbs, he might be ordered to deliver up lease to the plaintiff. the Interrogatories being exhibited for the examination of Stubbs, he in his answer stated, that the lease had been deposited with him in June, 1854, for the purpose of securing the money due to him from Rawlings, and that at the time of the deposit, |