Bainton and Others v Ward
| Jurisdiction | England & Wales |
| Judgment Date | 24 April 1741 |
| Date | 24 April 1741 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 507
HIGH COURT OF CHANCERY
See Holmes v. Coghill, 1802, 7 Ves. jun. 507; Fleming v. Buchanan, 1853, 22 L. J. Ch. 888; In re Roper, Roper v. Doncaster, 1888, 39 Ch. D. 488.
Case 148.-heron versus heron, April 24,1741. S. G. ante, 160.-Where a legacy is given to an executor generally, or for his care and pains, it makes no difference ; for if there is a deficiency of assets, he must abate in proportion with other legatees. In the cause of Heron versus Heron, which came on again to-day, the Attorney General mentioned to the court the case of Newton versus Haughton, heard at the Rolls, October 31, 1734, to shew that the executors of Heron ought to retain their legacies of 100, and not to abate in proportion with the rest of the legatees. Lord Chancellor. The case of the Attorney General versus Bobins, 2 Wms. 23,(1) is directly contrary to this resolution, and determined so by the very same Judge, Sir Joseph Jekyll, about twelve years before the case of Newton versus Haughton. There is another case in 2 Vern. 434, called Fretwell versus Stacy, which is also differently determined: " a legacy given to executors for care and pains ; if a deficiency " of assets, they must abate in proportion with the other legatees." I must own these two last fall in with my own opinion much more than the latter case. For where legacies are given to executors for their care and pains, I am very unwilling to distinguish them from common legatees ; because where the words care and pains are expressed in the will, or whether it is given generally without these words, it intirely...
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