
    Brown’s Administrator v. Griffiths.
    Decided, Dec. 8th, 1819.
    i. Wills — Provision for Application of Money to Certain Purposes — Effect,—A provision in a Will, that the money arising- from the sale of the testator’s personal property, after payment of his just debts, shall be applied to certain purposes, does not create a trust for the payment of the debts, nor take any debt out of the operation of the Act of Limitations.
    See Chandler’s executrix v. Neal’s executors, 2H. &M. 121; Lewis’s executor v. Bacon’s legatees and executors 8 H. & M. 89.
    An action of assumpsit was brought by James Griffiths against Samuel Booker administrator with the Will annexed of William Brown deceased, in the County Court of Lunenburg; for sundry services rendered, money expended, &c., by the plaintiff, for the said Brown in hjs lifetime.
    The. defendant pleaded “non assumpsit by the testator,” and the act of limitations. Upon the first plea, issue was joined; t‘o the second, the plaintiff replied, in substance, that the testator had, by his Will, directed his debts to be paid: and that the suit was brought within five years next after the probate of the said Will. To this replication, the defendant rejoined that he was not, by the Will of his testator, or by his qualification as administrator, bound to pay any debt barred by the said Act of Limitations, and concluded to the Country; and the plaintiff likewise.
    At the trial, the plaintiff moved the Court to instruct the Jury, “that a testator, directing by his last Will his debts to be paid by his Executors, takes all just debts which he owes at the time of his death out of the operation of the Statute of Limitations; and that, if it should appear to the satisfaction of the Jury, that the defendant qualified as administrator within five years before the bringing of the action, (the defendant having put that fact in issue by his rejoinder to the second replication of the plaintiff,) the running of the Statute of Limitations is barred; and that the plaintiff’s action was not barred by the act of Limitations, for the reason *in the above proposition contained to which instruction the defendant objected, “because the directions of the testator by his Will,” (which was set forth in hasc verba, bearing date in December 1803, and recorded in September 1804, the time of qualification of the administrator being at April Term 1805,! “did not impede the running of the Statute aforesaid, or prevent it’s barring the plaintiff’s action, ■which was instituted on the 11th of August 3808; and because no such fact, as is supposed by the said proposition to be in issue, was put in issue;” — but the Court overruled the defendant’s objections, and instructed the Jury as requested by the plaintiff; to which opinion a bill of exceptions was filed. A verdict and judgment was rendered for the plaintiff, and affirmed by the Superior Court; whereupon, the defendant applied for and obtained a Writ of Super-sedeas, by order of a Judge of this Court; alledging in his petition, that the Judgment of the County Court ought to have been reversed, “because a direction by a testator, that his debts shall be paid, will not revive a debt upon which the statute of limitations has taken effect at the time of the testator’s death;” “and, because, if, generally such direction would have that effect, the testator, in this case, only mentions the necessity of paying his debts, incidentally, as a measure necessarily precedent to the compliance with other directions given by him.
    
    
      
       Wills — Estate Charged with Payment' of Debts— Effect on Statute of Limitations. — In Tazewell v. whittle, 13 Gratt. 829, the will charged the whole estate of the testator with the payment of debts, and it was held that the charge did not revive a debt barred by the statute at the death of the testator. In delivering the opinion of the court Judge Mon-cure said; "As to the charge created by the will, it raises no trust in regard to 'the personal estate; and it is merely inoperative, so far as that is concerned. It cannot therefore prevent the statute from being a bar to a suit brought to obtain payment of a debt out of the personal estate. Jones v. Scott. 4 Cond. Jüng. Ch. R. 413; S. C.. 4 Clarke & Kin. 382; Brown v. Griffiths, 6 Uunf. 450; Braxton v. wood. 4 Gratt. 25. But the charge creates a trus c in regard to the real estate. Formerly it was supposed that such a trust embraced all debts of the testator, whether barred or not by tbe statute at the time of his death. But since the decision of Burke v. Jones, 2 Ves. & Beame 275, it has been considered to be well settled that a debt barred at tbe time of tbe testator’s death, is not revived by such a charge, in regard to real any more than personal estate. The able judgment of Sir Thomas Plumer in that case, as Ch. Kent has said, is well founded upon principle and upon the authorities and puts an end to the cuestión. Roosevelt v. Mark, 6 John. Oh. R. 266. See the principles stated and the cases collected on this subject in 1 Rob. Pr. new ed. p. 566 — 571. ‘The doctrine then (in the language of that writer), is narrowed down to this, that where there is a devise of real estate for the payment of debts, there is, as to the proceeds of such real estate, a trust created (according to Lord Redesdale’s opinion) for those creditors whose debts, at the testator’s death, were not barred by tbe statute; and after that event the statute does not so run as to affect the claim of those creditors upon these proceeds. ’ It is unnecessary to determine the construction and effect of the provision on this subject in the Code, p. 592, sec. 9, as it does not apply to this case.”
      Again in Johnston v. Wilson, 29 Gratt. 384, it is said: “The main question in this case is, whether theprovision in the will of the testator charging his real estate with the payment of his debts prevented the running of the statute of limitations as to the debts in controversy? Prior toJ-Se act hereafter mentioned, it was settled that a devise of real estate for the payment of debts, or a charge upon it, which was in effect the same thing, created a trust as to the proceeds of such real estate for the payment of all those debts which were not barred at the time of the testator’s death; and after that event the statute did not so run as to affect the claims of such creditors upon the proceeds. Chandler v. Neal, 2 Hen. & 124- In some of the earlier cases It was held that a devise for the payment of debts had the effect of reviving debts already barred by limitation; but this doctrine has been long since exploded, and It is now held that such a devise does not take a debt out of the operation of the statute. Burcke v. Jones, 2 Ves. & Beame, 275 ; 7 John. Ch. R. 293; Tazewell v. Whittle. 13 Gratt. 329; Baylor v. Dejar-nette, 13 Gratt. 152; 1 Rob. Prac. 346.”
    
    
      
       Burke v. Jones, 2 Vesey & Beams, 275.
    
    
      
       Note. In the Will, there was no direction that the testator’s debts be paid. The clauses in which the debts were alluded to. merely disposed oi "the money arising from the. sale of his land, mill and personal property, which should remain after the payment of his just debts; and declared that he did not mean thereby to subject to the payment of his debts, the money arising irom the sale of the real property, but of the personal property only. — Note in Original Edition.
    
   The following was the opinion of this Court.

There being no trust created by the Will in the proceedings mentioned for the payment of the debts of the testator, the Court without deciding what would be the effect of such a trust, if it existed, in a Court of Equity, *is of opinion that the instruction given in the Court below is erroneous.

The judgment is to be therefore reversed, and a new trial awarded, in which the said instruction is not to be repeated.  