Anonymous (1718) 1 P Wms 495
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1718 |
| Date | 01 January 1718 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 487
AT THE ROLLS.
START [495] Case 142.-anonymous. [1718.] At the Rolls. As legatees are to be paid in proportion, so if an executor pays one legatee, and there is not enough to pay all, the legatee who is paid shall refund in proportion ; so if one legatee recovers his legacy in equity, and there is not enough to pay the rest, he shall refund ; secus if the defect of assets arises by the wasting of the executor. In this case (int. al') it was said by Sir Joseph Jekyll, Master of the Rolls, that as all legatees are on a deficiency of assets to be paid in proportion, so if the executor pays 488 TURTON V. BENSON 1 P. WMS. 496; one of the legatees, yet the rest shall make him refund in proportion ; nay, if one of the legatees gets a decree for his legacy, and is paid, and afterwards a deficiency happens, the legatee who recovered shall refund notwithstanding, in imitation of the spiritual court where a legatee recovering his legacy is made to give security to refund in proportion, if, &c. (Vide 1 Vern. 26, and 93.) But if the executor had at first enough to pay all the legacies, and afterwards hy his wasting the assets occasions a deficiency, in such case the legatee who has recovered his legacy, shall not be compelled (1) to refund, but shall retain the advantage of his legal diligence, which the other legatees neglected by not bringing their suit in time ; before the wasting by the executor; whereas if the other legatees had commenced their suit before such waste committed, they might have met with the like success, et vigilantibus non dormientibus jura subveniunt. This case I put to Mr. Vernon, who was of the same opinion. (1) So, in Walcot v. Hall, 2 Bro. C. C. 305, before Sir Lloyd Kenyan, Master of the Rolls, sitting for the Lord Chancellor, 23...
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Richard Paramour against Raphael Yardley and George Smart
...434. (b) Qucere, for by the common justice of the Court of Chancery the legatee who is paid shall be made to refund, 1 Verri. 31, 94. 1 P. Wms. 495. 2 P. Wms. 447. 2 Vent. 358, 360. Wentw. Off. of Exec. 251. (c) See the contrary 3 Chan. Rep. 54, causa jim supra. (d) P. 12 H. 4. 21. pi. 11. ......
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Richard Howe Cockerell, Dwarkananth Tagore, and Anshootosh Day, - Appellants; Theodore Dickens, - Respondent
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The Right Hon. JOHN RICHARDS, one of the Barons of HM Court of Exchequer, CAROLINE RICHARDS, Widow, CAROLINE MARIA RICHARDS, otherwise WOODHOUSE, and another, v CROASDAILE MOLONY, HENRY MOLONY and Others
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