Adams v Barry
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1845 |
| Date | 13 November 1845 |
| Court | High Court of Chancery |
English Reports Citation: 63 E.R. 73
HIGH COURT OF CHANCERY
For subsequent proceedings, see 2 Coll. 285.
[167] adams v. barky. Jan. 26, 31, 1843. [For subsequent proceedings, see 2 Coll. 285.] Surviving executor, who had not acted in the testator's affairs, protected from the discovery of cases and opinions stated and given on behalf of the deceased executor who had acted; such cases and opinions having relation to a claim against the deceased executor of the same nature as the claim made against the surviving executor. Samuel Wilson died in 1814, having by his will appointed Charles Adams and Thomas Wilson his. executors, who both proved the will. Charles Adams survived Thomas Wilson, tad died in 1835, having appointed several persons his executors, of whom the Plaintiff alone proved his wilL Thomas Wilson died in May 1828, having appointed Richard Harris and Mary Ann Wilson his executor and executrix, who both proved his will. In 1829 Mary Ann Wilson married the Defendant, William Barry. In May 1838 Eichard Harris died, having appointed two persons of the names of Banks and Waltham his executors, who proved his will. The bill was filed by the Plaintiff as personal representative of Samuel Wilson, and on behalf of himself and all other the creditors of Thomas Wilson, against Barry and his wife. After alleging that Thomas Wilson possessed assets of Samuel Wilson, that after Thomas Wilson's decease such assets came to the hands of Harris and the Defendants, and that the portion of such assets received by Harris was duly accounted for by his executors, and paid over by them to the Defendants, the bill prayed that (1) 1 Phillips, 124. See Torston v. Nash, 13 Law Jour. 86. In Davenport v. Davenport the argument drawn from the stat. 11 Geo. 4 and 1 Will. 4, c. 36, rule 17, was urged, but without success. That part of the argument, probably because it made no impression on the Court, is not reported. V.-C. vin.-3* 74 ADAMS,'-V. BARRY 2 Y. & C. C. C. 168. an account:might^be taken of,'.the assets of .Samuel Wilson received by Thomas Wilson, and that what might appear to be due on that account might be paid to the Plaintiff as personal representative of Samuel/Wilson out jof Thomas Wilson's assets. The bill also ptayed the usual relief in a creditors' suit against Thomas Wilson's The bill contained the usual charge that the Defendants had in their possession divers books, accounts, papers-and documents relating to the matters aforesaid, from which, if produced, the truth of such matters would appear. :.-, [168] The Defendants, by their answer, stated-that, except in some mere'formal matters, Richard Harris alone acted in the administration of Thomas Wilson's estate, and that they, the Defendants, were entirely ignorant, until long after the death of Harris, of there having been any claim whatever against the estate of Thomas Wilson, as executor, or otherwise, on account of the estate of Samuel Wilson; but that, after the death of Harris, the Defendants, in right of the Defendant, M. A. Barry, who was residuary legatee as well as surviving executrix of Thomas Wilson, having filed their bill against the executors of Harris for an account of Thomas Wilson's estate possessed by Harris, and for payment of the residue, and that suit having been compromised upon payment of a small balance to the Defendants, various papers and accounts belonging to Thomas Wilson were thereupon handed over by Harris's executors to the Defendants. That it appeared from those papers, but that the Defendants had never before been informed of the fact, that Charles Evans, as surviving executor of Samuel Wilson, very shortly after the death of Thomas Wilson made a .claim on Bjchard Harris for a sum alleged to have been received by Thomas Wilson, on account of the executorship of Samuel Wilson, and also required Harris to deliver up to him the papers relating to that executorship; at the same time,threatening legal proceed ings for enforcing his claim. The Defendants then alleged that, to the best of their information and belief, the cases for the opinion of counsel, copies whereof were com prised in the schedule to the Defendants' answer annexed, were prepared, and the opinions thereon taken, on behalf of the said Eichard Harris, as such acting executor jf Thomas Wilson as aforesaid, in the .year 1828j with immediate reference to the claim then made by the said Charles Adams against the estate of the said Thomas Wilson, and to the legal .proceedings which were then threatened by [169] the said Charles Adams; and they submitted that they ought not to be required to produce, for the inspection of the Plaintiffs, or otherwise, either the said copies of cases and opinions, or any other of the particulars mentioned in the schedule, appearing to relate thereto, or to be connected therewith. - '. The schedule contained the following, among other documents: Case submitted to G. E., Esq., to advise on behalf of the executors of Thomas Wilson, and opinion thereon ; the rough draft of such case; paper writing purporting to contain an account of the monies claimed by the executors of Thomas Wilson to be due to them from the estate of Samuel Wilson (made to accompany the case); further statement of case to Q. B., Esq., &c., and his opinion; paper writing purporting to contain a copy of & debtor and creditor account rendered by Charles Adams to Eichard Harris, between the estate of Samuel Wilson and the estate of Thomas Wilson (made to accompany the last case). . ; Mr. Hubback, for the Plaintiff, now moved for the production of the documents jnentioued in the schedule. The cases stated for the opinion of counsel were not stated by the Defendants or anyone under whom the Defendants claim. The present .Defendants were not then acting at all. The party acting was one whose...
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...Donal G. Feehan, Defendant Francis P. Gleeson Plaintiff and Eithne O'Meara, Defendant Cases mentioned in this report:— Adams v. Barry (1845) 2 Coll. 285. Binns v. Nichols (1866) 2 Eq. 256. Coombs v. Coombs (1866) L.R. 1 P. & D. 288. Diplock v. Wintle [1948] 1 Ch. 465; [1948] 2 All E.R. 318;......
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...cases were cited : As to the necessity of making the cestui que trust parties to a suit, Franco v. Franco (3 Yes. 75); Adams v. Barry (2 Coll. 285); Douglas v. Horsfall (2 Sim. & St. 184); Exparte Heathcoate (2 Mont. JD. & De G. 711); In re Slyan (1 Phillips, 105); In re Pole's Trusts (25 L......
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...is entitled to all the Statutes of Limitations, though by his answer he claimed only the " Statute " of Limitations : Adams v. Barry (2 Coll. 285, 290). There appears to be no case expressly deciding that the Statute of Frauds must be pleaded by name, to entitle the [271] Defendant to avail......