Cartmell v. Perkins

Citations

• 2 Del. Ch. 102

Syllabus

<p>A legacy charged upon land was bequeathed to a married woman, subject to the deduction of a book account held by the testator against her. The testator held a note of the legatee’s husband, but no reference to this note was made in the bequest. The husband also became indebted to the executor of the testator for goods purchased at a vendue of the personal estate. The husband died before the wife, without having reduced the legacy into his possession and without any settlement with the executor touching the same or his own indebtedness to the estate of the testator. Held, that on a bill filed by the administrator of the wife (who had survived her husband and died) to recover the legacy from the devisee of the land charged, the husband's indebtedness to the estate of.tbe testator could not be treated as payment of the legacy.</p> <p>The mere omission of a husband to reduce his wife’s chose in action into his possession, for a lapse of time ordinarily sufficient to raise a presumption of payment, does not raise such presumption, so as to bar the wife’s right, by survivorship, to recover such chose in action after the husband’s death.</p> <p>Lapse of time does not bar a direct trust as between the trustee and cestui que trust; otherwise, as to constructive trusts.</p> <p>A legacy charged upon land, and payable by the devisee of the land, is a trust, falling within the exclusive jurisdiction of courts of equity, and as such is not subject to the equitable defence of lapse of time, by analogy to the Statute of Limitations ; otherwise, of a legacy payable by the executor or administrator out of the personal estate, and which is recoverable both at law and in equity.</p>