Cur. adv. milt.
( 121 )
further directed that the rents and profits of certain properties 1889.therein mentioned should be “ collected and recovered ” by the ^LAREtfCE jtestator’s brother’s two sons, Miguel Jury and the defendant, andpaid to the testatrix monthly, and the will reserved to her apower, which she never exercised, of appointing some one else intheir room in the event of their neglecting their duties. The willfurther appointed three executors, viz., plaintiff, defendant, andMiguel Jury. The testator died in 1869 leaving the testatrixsurviving him, and the will was proved by the three executors.
Miguel Jury died in 1872. The testatrix Lucia died in 1873,leaving will by which she gave all her property to the plaintiffand appointed him sole executor. Plaintiff delayed until 1888,and then obtained probate of the will.
He now sues the defendant claiming to be entitled to recoverfrom him a sum of over Rs. 8,000, which he avers to be due fromdefendant to the estate of Lucia in respect of income of pro-perties subject to the provisions of the joint will. The 7th and9th paragraphs of the libel are not very explicit in distinguish-ing between the income of property subject to the provisions ofthe 14th clause of the joint will, as to which defendant andMiguel Jury were trustees, and subject to the general provisionsof the will in favour of Lucia. But the gist of plaintiff’saverments seems to be, that between the death of the testatorand the death of Lucia the income of the joint estate amounted toRs. 11,199-25, and deducting sums said to have been received byLuci3 during her lifetime, the plaintiff charges that there is abalance due to Lucia’s estate of over Rs. 8,000, which he says hasnever been paid, and is in defendant’s hands.
There is a general averment in the 14th paragraph of the libelthat the Rs. 11,199-25 above mentioned was received by defendantand Miguel Jury as trustees for Lucia. The libel further allegesthat defendant, in an account filed in the'“testamentary matter”of the joint will, admitted this indebtedness, and that he promisedto pay plaintiff the balance which plaintiff now claims, and thathe never did pay.
The defendant, in answer to this libel, sets up defences ofnon accrevit infra sex annos and non accrevit infra tres annos,and (as I understand the answer) denies that defendant“ collected ” the balance sum now claimed, and denies makingany admission or promise as alleged.
At the hearing the plaintiff went into the witness-box andmade a rather confused statement, intended apparently to suggestthat the defendant had in his hands the money now claimed, but
by no means distinctly expressing anything.
Vol. I.
( 122 )
1889. The learned District Judge held that '‘plaintiff” had provedOuinoi, J. nothing, and also upheld the defence of<prescription. He dismissedthe snit with costs.
So far as concerns the defence founded on the PrescriptionOrdinance, I cannot uphold the judgment. Plaintiff avers that themoney which he claims was received by defendant as trustee forLucia, and if defendant as trustee under the 14th clause of thisjoint will received income which it was his duty to pay to Lucia,his cestui que trust, he cannot, in my opinion, thus set up the Ordi-nance in bar of the claim of his cestui que trust. If authority beneeded for this we may find it in Burdick v. Garrick, L. R. 5, ch,233, and Lake v. Bell, L. R. 34, ch. D. 462. It was then suggestedfor the defence that the action should be regarded as an action onaccount stated, meaning the account already referred to as filedin certain testamentary proceedings. I do not at all, however,view the action as one upon account stated, but as a suit torecover a sum claimed as due by trustee to cestui que trust.Reference was also made in the course of argument to the promisealleged as made by defendant, and the case of Roper v. Holland,
and E., was referred to. I do not think that Case touches thiscase. There may be cases in which the relationship of trustee andcestui que trust has come to an end, in which the two parties havecome to stand at arm’s length, and money which originally accruedunder the trust remains in the hands of the whilom trustee inanother character than that of trust money. In such a case, nodoubt, the statutory term might begin to run from the time whenthe parties ceased to stand to each other in the character oftrustee and cestui que trust. 1 say there may be such casespossibly, but the present is not such a case. The court wouldcertainly watch jealously any proposal to divert the trustee ofhis fiduciary character, and it is at any rate impossible to hold thatthe mere fact of a trustee promising to pay his cestui que trust,and then breaking his promise, could have any such effect.
The plaintiff’s claim therefore has to be considered upon itsmei. ts, and as to that I do not dissent from the Chief Justice’sproposal to send the case back to the District Court for trial onthe merits. If the learned District Judge has expressly recordedthat he disbelieved the plaintiff’s statements in the witness-box,which are far from being very clear, I certainly, especially inview of the plaintiff’s signal delay in taking probate of histestatrix’ will, would not have undertaken to disturb the judg-ment for the defendant; but under the circumstances I amcontent that the case should go back to the District Court for trial,but I think plaintiff should have costs of this appeal.
( 123 )
Burnside, C.J.—
I am unable to agree with the jndgment of the learned DistrictJudge. The action is one brought by a cestui que trust to recovera sum of money due him under the trust from the trustee. Theplaintiff alleges that a certain definite sum is in the defendant’shands, and if he has proved what he alleged, I cannot see anyobstacle whatever to his recovering it in this suit. It is true thatcestui que trust could not sue his trustee at law except in thecases like Roper v. Holland, 3 A. and E., but was compelled toresort to his equitable action of account; but our Courts adminis-ter equity as well as law, and I am not aware that in an equitableaction a cestui que trust could not recover if he alleged, and wasable to prove an exact sum due to him without the taking of anyaccounts. Upon the plea of prescription, the defendant must fail.No proposition is better established than that prescription doeBnot run between trustee and cestui que trust. But upon the mainissue between the plaintiff and defendant, I think the plaintifFhas established a pritnd facie case to recover the specific amountmentioned, Rs. 8,430-88, with interest. The District Judge hassaid that the plaintiff has proved nothing. If the District Judgemeans that the plaintiff has given no evidence bearing on thequestion, then it seems he has overlooked material parts of theplaintiff’s evidence. If he means that what the plaintiff hassworn to is of no probative value, he is mistaken. The jointaccount of the executors of Anthony showed a balance in thehands of both the executors to the amount mentioned. Theplaintiff in his evidence says it was the defendant who had it.Now, if this be true, it establishes that that sum had come to thehands of the defendant for his cestui que trust, and the plaintiff’sright to receive it is clear. As the learned Judge has, however,miscarried on this point and on the issue of prescription, andperhaps the defendant was content to leave the case as the learnedJudge had accepted it, I would send the case back in order thatthe real issue between the parties may be contested.