Blight v Hartnoll (no 2)
| Jurisdiction | England & Wales |
| Date | 1881 |
| Year | 1881 |
| Court | Court of Appeal |
Administration - Costs - Probate Litigation.
A grant of probate to A., who alleged that he was the executor devisee and legatee named in the will of C., his father, was revoked by the Judge of the Probate Court, on the ground that testator's son B., and not A., was the person intended to have been named in the will, and probate was granted to B.
On appeal to the House of Lords, their Lordships being equally divided, the question whether the decree of the Probate Court should be reversed was, according to the rule “Semper proesumitur pro negante,” answered in the negative, “and the costs of both parties, as well in the Court below as in this House, were ordered to be paid out of the estate”; and with this direction the cause was remitted to the Court of Probate.
The personal estate being insufficient, a bill was filed by A. for administration of the testator's real and personal estate in order to obtain payment of his costs in the probate litigation, and of a debt alleged to be due to him in respect of his acts as an executor before revocation of the grant of probate. The hill also claimed title as devisee and legatee, but this was abandoned at the bar:—
Held, that the direction of the House of Lords, being based upon and not in this respect exceeding the jurisdiction of the Probate Court which was limited to personal estate, did not operate to make the Plaintiff's costs of the probate litigation payable out of the real estate; and accordingly that the administration must be limited to the testator's personal estate.
IN this suit by the Plaintiff, as heir-at-law and alleged devisee, to administer the real and personal estate of his father, the main question was whether the Plaintiff was entitled to have his costs of litigation in the Probate Court relating to the will charged upon the testator's real estate.
The testator, Forster Charter, a Northumberland farmer, had two sons, William Forster Charter, the Plaintiff, and Charles Charter, the Defendant. By his will, made in June, 1859, and drawn for him at his request by the vicar of the parish, testator appointed “my son Forster Charter as the executor” of his will, and gave, devised, and bequeathed to him all his real and personal estate for his use and benefit, and for the benefit of the persons named in the will.
The testator died on the 8th of August, 1869, and on the 16th of September, 1869, probate of his will was granted in common form by the District Registrar of Newcastle-on-Tyne to “William Forster Charter,” the Plaintiff, as executor therein named. The Plaintiff thereupon entered into possession, and receipt of the rents and profits, and continued the administration and management of the testator's farm and estate.
In August, 1870, Charles Charter cited William Forster Charter before the Court of Probate to shew cause why this grant of probate should not be recalled on the ground that Charles Charter was the person appointed, or intended by the testator to be appointed, sole executor thereof.
On the 21st of November, 1871, Lord Penzance, after a hearing of the case, and having reserved his judgment, pronounced in favour of Charles Charter, and ordered the probate granted to William Forster Charter to be revokedF1.
An appeal was brought to the House of Lords, and on the 24th of July, 1874, their Lordships being equally divided “thereupon, according to the ancient rule in law, Semper præsumitur pro negante,” the question whether Lord Penzance's decree should be reversed was determined in the negative, and the costs of both parties, as well in the Court below as in this House, were ordered to be paid out of the estate; and with these directions the cause was remitted to the Court of ProbateF2.
The Plaintiff, William Forster Charter, claimed to be a creditor on the estate for sums expended by him as executor before revocation of the grant of probate, and also for his costs of the probate litigation. The personal estate being insufficient for payment of the alleged debt and costs, he had filed a bill for administration of the testator's real and personal estate; to have the rights and interests of the Plaintiff and all persons interested therein ascertained and determined; an account of what was due to the Plaintiff in respect of debts, probate and other testamentary expenses paid by him, and the costs to which he had been put, including the costs to which he was entitled by the order of the House of Lords; and to have the total amount paid out of the estate, and, if necessary, raised by sale or mortgage of the real estate.
The Plaintiff, by his bill, also submitted that he was the person named by testator in his will and intended to be thereby benefited, and that he was not estopped from shewing that he was devisee under the will, and, as such, entitled to testator's real estate.
This part of the case was not, however, pressed on behalf of the Plaintiff.
Sir H. Jackson, Q.C., and T. A. Roberts, for the Plaintiff:—
Independently of the order of the House of Lords, the Plaintiff, as a creditor on the estate, is entitled to a decree for administration, and to have the costs of the litigation in the Probate Court and the House of Lords thrown upon the real estate, or at least to have the real and personal estate marshalled. The whole estate, both real and personal, of a deceased person is now liable for his debts and liabilities, and one of those liabilities is the costs of administration, being a liability which the testator has himself created by the ambiguity of his will: Row v. RowF3; Daniell's Ch. Prac.F4.
Although the Plaintiff cannot in this Court dispute the grant of probate to the Defendant, he was not, though a party to the...
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