Allfrey v Allfrey
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1847 |
| Date | 01 January 1847 |
| Court | High Court of Chancery |
English Reports Citation: 50 E.R. 618
ROLLS COURT
S. C. 17 L. J. Ch. 30; 11 Jur. 981; affirmed on appeal, 1 Mac. & G. 87; 41 E. R. 1195; 1 H. & Tw. 179; 47 E. R. 1375; 13 Jur. 269. See Williamson v. Barbour, 1877, 9 Ch. D. 533; Gething v. Keighley, 1878, 9 Ch. D. 550.
[363] allfrey v. allfrey. March 15, 16, 17, May 28, 1847. [S. C. 17 L. J. Ch. 30; 11 Jur. 981; affirmed on appeal, 1 Mac. & G. 87 ; 41 E. E. 1195; 1 H. & Tw. 179; 47 E. R. 1375; 13 Jur. 269. See Williamson v. Barlow, 1877, 9 Ch. D. 533; Gething v. Keighley, 1878, 9 Ch. D. 550.] A person died intestate. His brother took out administration, and placed himself mi loco parentis to the intestate's children. One of them attained twenty-one in September 1823, and in May 1825 came to a settlement of account with the administrator, which he signed and confirmed, and in January 1828 he received his share of the estate. In September 1843 he filed a bill to open the account. Many errors were shewn to exist in the account, some of the items of which appeared to be fictitious, and although forty years had elapsed since the death of the intestate, twenty years since the Plaintiff attained twenty-one, seventeen years since the settlement of the account, and more than two since the discovery of the errors, yet the Court, having regard to the nature and extent of the errors, the relation between the parties, and the influence of the administrator over the Plaintiff, refused to limit the relief to a right to surcharge and falsify the account, but set it aside altogether, and directed the accounts to be taken, with special inquiries. This bill was filed, in September 1843, by the youngest son of George Allfrey, who died in 1802, against the representatives of Edward Allfrey, his administrator, for the purpose of setting aside a settled account, signed by the Plaintiff in 1825, and to have the accounts of the intestate's estate taken with certain special directions. [354] Great delay had occurred in the prosecution of the Plaintiffs claims; it appearing that, at the filing of the bill, forty years had elapsed since the death of the intestate; twenty years since the Plaintiff attained twenty-one; seventeen years and upwards since the account had been signed by him; nine years since the death of Edward Allfrey, the administrator; and two years and a quarter since the admitted discovery of the alleged errors in the settled account. Under these circumstances, the first discussion was, whether, in consequence of the lathes and alleged acquiescence of the Plaintiff, he was entitled to relief at all; and, secondly, whether the Court would set aside the settlement of the account altogether, or merely give liberty to surcharge and falsify. The material facts are fully detailed in the judgment of the Court. Mr. Kindersley and Mr. Rasch, for the Plaintiff. Mr. Turner, Mr. Roupell, and Mr. W. H. Clarke, for the executors of Edward Allfrey, the administrator. Mr. Law, for other members of the family, who disclaimed. Mr. Kindersley, in reply. The cases referred to were Vernon v. Vawdry (2 Atk. 119), Walker v. Symonds (3 Swan. 1), Brownell v. Brownell (2 Bro. C. C. 62), Wedderburn v. Wedderburn (2 Keen, 722, and 4 Myl. & Cr. 41), Hanbury v. KirEand (3 Simons, 265), Docker [355] v...
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