Attorney General v Higham

JurisdictionEngland & Wales
Judgment Date12 December 1843
Date12 December 1843
CourtHigh Court of Chancery

English Reports Citation: 63 E.R. 284

HIGH COURT OF CHANCERY

Attorney-General
and
Higham

[634] attorney-general . higham. Dee. 12, 1843. Testator bequeathed £500 to his executors, upon trust that they should lay out and invest the same in the public funds, or in such other security, or in such other manner as to them should seem expedient, at interest, and pay and apply the produce to a charitable purpose. One of the executors, who took the entire management of the estate, paid the debts and most of the legacies of the testator, but neither specifically appropriated nor invested £500 for the charity. He paid interest, however, on £500 to the charity; at the same time receiving interest on the promissory note of a debtor to the estate who was in good credit, but whose debt was the only fund available for payment of the legacy. The executor afterwards died. On the admission, by his representatives, that he had in his lifetime assented to the payment of the legacy to himself, as trustee: Held, that his estate was severally answerable, as for a breach of trust. Evidence of admission of assets by payment of interest on a legacy. Deed set out in a Defendant's answer made evidence for the Plaintiff generally. In the year 1801 Henry Duxbury, being seised in fee of a small estate, called Woodcock Hill, out of which he paid £19 a year to the master of a school at Eibchester, under the trusts of a certain will, conveyed the premises, subject to such annuity, to Eichard Higham in fee. Eichard Higham for some time paid the annuity, but afterwards, in 1805, ceased to do so, on the ground that such payment was void under the Mortmain Act. Eichard Higham, by his will, dated the 8th November 1817, after giving various pecuniary legacies, gave and bequeathed to his son, Joseph Higham, his daughter, Emma Mercer, and his grandson, Joseph, son of his late son John (whom he made executors and executrix of his will), their executors, administrators and assigns, the sum of £500 of lawful English money out of such part of his personal estate as was not, or might not, be secured by mortgage or other charge upon realty, upon trust, that they, the same trustees or trustee for the time being, should lay out and invest the same principal sum of £500 in the public funds, or in such other security or in such other manner as to them should seem expedient, at interest. And upon further trust, that they, the same trustees for the time being, should pay and apply the yearly sum of £5 (part of the dividends, interest and produce to arise from said stocks, funds or investment) unto Henry Duxbury during his life ; and should, either annually or otherwise, according to the discretion of them, his same trustees for the time being, pay and apply the whole of the aforesaid dividends, or other produce of such stocks, funds or other investment [635] or investments, subject to the said yearly sum of £5, to charitable uses or purposes for the benefit or advantage of such poor persons residing in all or any of the three townships of Eibchester, Hothersall and Dutton, in the county of Lancaster, as his said trustees or trustee for the time being should think proper; and the same charity to be administered in alms, education of children, or in such other manner, and for such other charitable purposes, within all or some of the said townships, as his said trustees'or trustee for the time being should think expedient and proper; and he recommended his said trustees or trustee for the time being to consider and ascertain the probability of establishing a school for educating the poor children resident in the said three last-mentioned townships according to the Madras system, as it was his opinion that the said three townships would derive more per^ manent advantage from the said legacy or sum of £500 if the same were applied to the furtherance of that object than if it were applied in any other manner. Then followed a clause for the appointment of new trustees. And the testator bequeathed all his residuary personal estate, after payment of the said trust sum of £500 and the various legacies thereinbefore mentioned, to the said Joseph Higham, his son, 2 Y. & C. C. C. 636. ATTOKNEY-GENERAL V. HIGHAM 285 Emma Mercer, and Joseph Higham, his grandson, on certain trusts as to one-half thereof, for the benefit of the said Joseph Higham, his son, and as to the other half thereof, for the benefit of the children of James Higham, a deceased son, payable at their respective ages of 25 years. The testator died in January 1818, and in the following August his will was proved by Joseph Higham, his son, and Emma Mercer, power being reserved to Joseph Higham, the grandson, who was then an infant, to prove the will. Joseph Higham, the son, took upon himself the active execution of the will, and paid all the testator's debts, and with the exception of the charity legacy, all the legacies, [636] including a legacy to himself of £2120, and a legacy to Emma Mercer of £1700. No fund was set apart by him for the payment of the charity legacy, but, on the contrary, a considerable part of the assets of the testator were left outstanding; in particular, a promissory note for £1100, due from one Eiehard Ward to the testator, in respect of which only interest and principal to the amount of £500 were received by the acting executor. Interest, however, on the charity legacy, at the rate of £4, 10s. per cent, per...

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2 cases
  • Lazonby v Rawson
    • United Kingdom
    • High Court of Chancery
    • 11 November 1854
    ...v. Henning (2 Beav. 396). So payment of interest on a legacy is equivalent to an admission of assets, Attorney-General v. Higham (2 Y. & C. C. C. 634). Moreover, the probate duty stamp is prima facie evidence that the executor has secured assets to the amount covered by the stamp, Foster v.......
  • Severs v Severs
    • United Kingdom
    • High Court of Chancery
    • 4 May 1853
    ...death, and continuing for seven years, was held to make the executor personally liable. They also cited Attorney-General v. Higham (2 Y. & C. C. C. 634). Mr. Walker and Mr. Eobson, for the Defendant. The legacy to the Plaintiff was a specific legacy : Nelson v. Carter (5 Sim. 530); or it wa......

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