In re BRUCE. LAWFORD v. BRUCE. (Supreme Court of Judicature, Court of Appeal. [1908] 2 Ch. 682) Appeal from a decision of Neville, J., [1908] 1 Ch. 850. The testator, who died in 1882, devised and bequeathed his real and residuary personal estate to trustees upon trust (in the events which happened) for his widow for life, and after her death upon trust for his seven children in equal shares. James Bruce was one of these children. In 1906 the testator's widow died. Some old papers of the testator's were then found, from which it appeared that in the year 1878 he had lent his sister, one Emily Gordon, £200 at 5 per cent. interest, and that no payment or acknowledgment in respect of either principal or interest had been made since 1880. The said Emily Gordon had died in 1903, having bequeathed the residue of her personal estate to the said James Bruce and having appointed him one of her executors. The said Emily Gordon's will had been proved by both executors, her estate had been wound up, and James Bruce had received the residue of her personal estate, which amounted to about £5,000. The plaintiffs, the present trustees of the testator, had distributed and paid over his residuary estate, other than the one-seventh share payable to the said James Bruce, which amounted to about £1,700. The present summons was taken out by the trustees for the purpose of determining whether or not the said James Bruce was bound to bring the £200 debt with interest from 1880 into account against his one-seventh share of the testator's estate. Neville, J., held that the principle of Courtenay v. Williams, 3 Hare, 539, on appeal, 15 L. J. Ch. 204, applied, and that James Bruce must bring the debt and interest into account against his share in his father's residuary estate. James Bruce appealed. COZENS-HARDY, M. R.68 In this case I am unable to agree with the decision at which Neville, J., has arrived. The material facts are very simple. [His Lordship stated them, and continued:] The claim which is raised in the action is this: "You, James Bruce, are not entitled to be paid in full your share of your father's estate, because you must deduct from that share the amount of the statute-barred debt which was due from Emily Gordon and from her executors after her death." It is sought to support that view by reference to the well-known decision in Courtenay v. Williams, 3. Hare, 539, 15 L. J. Ch. 204. First of all, what was Courtenay v. Williams? It was a case in 68 The concurring opinions of Fletcher Moulton, L. J., and of Farwell, L J., are omitted. which the legatee under the will was directly and legally a debtor of the testator's estate. True, the statute of limitations had barred the remedy, but the legal liability remained, and could be enforced in various ways which are indicated by the court, e. g., a lien on any moneys she could get hold of later on, and the court there said, "You cannot claim payment in full of the assets because you, in respect of your legal liability, must be regarded as having an asset of the estate in your hands for which you must account," or, in other words, you must be considered, to the extent of those assets, to have paid yourself. Neville, J., in his judgment treated it in this way. He said: "It seems to me that the trustees of the testator's estate are entitled to say to him, 'You have in your hands, as residuary legatee of your aunt, this debt which with interest has remained due from her and has never been paid to the testator's estate and ought to be accounted for.'" I am entirely unable to follow that. There was at no time the legal relation of debtor and creditor between James Bruce as residuary legatee and the testator. It is quite true there might have been, apart from the statute of limitations, a right in the creditor to follow the assets in the hands of the residuary legatee, but that right has been plainly lost by the statute of limitations, and, there being no possibility of bringing an action in equity against James Bruce, I fail to see any foundation for the doctrine which is relied upon. No part of Emily Gordon's assets has been appropriated or has been retained in respect of this debt, and there is no foundation, as it seems to me, for the suggestion that James Bruce, in his character of residuary legatee, ever was liable, in the sense of being equitably liable, to pay this debt. There was no legal liability, and a court of equity always considers that it must regard all the circumstances of the case; it considers the question of laches and all such matters before it makes an order to refund and do what is just and right between the parties. In the present case, I can scarcely bring myself to doubt that this is a case in which those equitable considerations ought to have been applied, if the court had been asked to follow assets in this case. But this is not a case of following assets at all. There was never any time when there was any legal liability, and the whole foundation of Courtenay v. Williams, 3 Hare, 539, 15 L. J. Ch. 204, was that there was a legal liability. With great respect to the learned judge, I think his decision was wrong and that this appeal must be allowed. ENGLISH STATUTES 18 Edw. I, c. 19 (1285), Administration... 13 Edw. I, c. 23 (1285), Executors. 4 Edw. III, c. 7 (1330), Executors. 25 Edw. III, c. 5 (1350), Executors. 31 Edw. III, c. 11 (1357), Administration.... 21 Hen. VIII, c. 5, §§ 3, 4 (1529), Administration. 32 Hen. VIII, c. 1 (1540), Statute of Wills.... 34 & 35 Hen. VIII, c. 5 (1542), Statute of Wills.. 12 Car. II, c. 24, § 1 (1660) Abolition of Military Tenures. 22 & 23 Car. II, c. 10 (1671), Statute of Distributions.. 29 Car. II, c. 3, §§ 5, 6, 12, 19-25 (1676), Statute of Frauds.. 25 Geo. II, c. 6, §§ 1, 2, 10 (1752), Attestation of Wills. Page 753 753 753 753 754 754 754 754 754 755 758 760 760 760 767 Sr. 13 EDW. I (WESTM. II) c. 19 (1285).-Whereas after the death of a person dying intestate, which is bounden to some other for debt, the goods come to the ordinary to be disposed; (2) the ordinary from henceforth shall be bound to answer the debts as far forth as the goods of the dead will extend, in such sort as the executors of the same party should have been bounden, if he had made a testament. ST. 13 EDW. I (WESTM. II, 1285) c. 23.-Executors from henceforth shall have a writ of accompt and the same action and process in the same writ as the testator might have had if he had lived. ST. 4 EDW. III, c. 7 (1330).—Item, Whereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; (2) it is enacted, that the executors in such cases shall have an action against the trespassers, and recover their damages in like manner, as they, whose executors they be, should have had if they were in life. ST. 25 EDW. III, c. 5 (1350).—Item, it is accorded and established that executors of executors shall have actions of debts, accompts and of goods carried away of the first testators; (2) and execution of statutes merchants and recognizances made in court of record to the first testator, in the same manner as the first testator should have had if he were in life, as well of actions of the time past as of the time to (753) COST.WILLS-48 come, in all cases where judgment is not yet given betwixt such executors; (3) but that the judgments given to the contrary to this article in times past shall stand in their force; (4) and that the same executors of executors shall answer to other of as much as they have recovered of the goods of the first testators, as the first executors should do if they were in full life. ST. 31 EDW. III, c. 11 (1357).-Item, it is accorded and assented, that in case where a man dieth intestate, the ordinaries shall depute the next and most lawful friends of the dead person intestate to administer his goods; (2) which deputies shall have an action to demand and recover as executors the debts due to the said person intestate in the king's court, for to administer and dispend for the soul of the dead; (3) and shall answer also in the king's court to other to whom the said dead person was holden and bound, in the same manner as executors shall answer. (4) And they shall be accountable to the ordinaries, as executors be in the case of testament, as well of the time past as of the time to come. ST. 21 HEN. VIII, c. 5, §§ 3, 4 (1529).—III * (6) And in case any person die intestate, or that the executors named in any such testament refuse to prove the said testament, then the said ordinary, or other person or persons having authority to take probate of testaments, as is abovesaid, shall grant the administration of the goods of the testator, or person deceased, to the widow of the same person deceased, or to the next of his kin, or to both, as by the discretion of the same ordinary shall be thought good, taking surety of him or them, to whom shall be made such commission, for the true administration of the goods, chattels, and debts, which he or they shall be so authorized to minister; (7) and in case where divers persons claim the administration as next of kin, which be equal in degree of kindred to the testator or person deceased, and where any person only desireth the administration as next of kin, where indeed divers persons be in equality of kindred, as is aforesaid, that in every such case the ordinary to be at his election and liberty to accept any one or more making request, where divers do require the administration. IV. Or where but one or more of them, and not all being in equality of degree, do make request, then the ordinary to admit the widow, and him or them only making request, or any one of them at his pleasure. * STS. 32 HEN. VIII, c. 1 (1540), and 34 & 35 HEN. VIII, c. 5 (1542). -See extracts, ante, p. 112.1 ST. 12 CAR. II, c. 24 (1660). And it is hereby enacted * that all tenures by knight-service of the king, or of any oth 1 As the Statutes of Wills are sufficiently stated ante, p. 112, and their effect explained in the passages ante, pp. 3, 5, and as, if printed in full, they would occupy too much space, they are omitted. * er person, and by knight-service in capite, and by socage in capite of the king, and the fruits and consequents thereof, happened or which shall or may hereafter happen or arise thereupon or thereby, be taken away and discharged. * And all tenures of any honours, manors, lands, tenements or hereditaments, of any estate of inheritance at the common law, held either of the king or of any other person or persons, bodies politick or corporate, are hereby enacted to be turned into free and common socage, to all intents and purposes, * * and shall be so construed, adjudged and deemed to be from the said twenty-fourth day of February, one thousand six hundred forty-five, and forever thereafter, turned into free and common. socage; any law, statute, custom, or usage to the contrary hereof in any wise notwithstanding.2 ST. 22 & 23 CAR. II, c. 10 (1671). An Act for the better settling of intestates' estates. Be it enacted by the king's most excellent majesty, with the advice and consent of the Lords Spiritual and Temporal, and the Commons in this present Parliament assembled, and by the authority of the same, that all ordinaries, as well the judges of the prerogative courts of Canterbury and York for the time being, as all other ordinaries and ecclesiastical judges, and every of them, having power to commit administration of the goods of persons dying intestate, shall and may upon their respective granting and committing of administration of the goods of persons dying intestate, after the first day of June one thousand six hundred seventy and one, of the respective person or persons to whom any administration is to be committed, take sufficient bonds with two or more able sureties, respect being had to the value of the estate, in the name of the ordinary, with the condition in form and manner following, mutatis mutandis, viz.: II. The condition of this obligation is such, that if the within bounden A. B. administrator of all and singular the goods, chattels and credits of C. D. deceased, do make or cause to be made, a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come to the hands, possession or knowledge of him the said A. B. or into the hands and possession of any other person or persons for him, and the same so made do exhibit or cause to be exhibited into the registry of court, at or before the - day of next ensuing; (2) and the same goods, chattels and credits, and all other the goods, chattels and credits. of the said deceased at the time of his death, which at any time after shall come to the hands or possession of the said A. B. or into the hands and possession of any other person or persons for him, do well and truly administer according to law; (3) and further do make or cause to be made, a true and just account of his said administration, ? A part of § 1 only of the statute is here given. The effect of the statute is explained in the passages, ante, pp. 3, 5, 6. |