Buxton v Buxton
| Jurisdiction | England & Wales |
| Judgment Date | 20 November 1835 |
| Date | 20 November 1835 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 307
HIGH COURT OF CHANCERY
See Bullock v. Wheatley, 1844, 1 Coll. 137; Ex parte Chippendale, 1854, 4 De G. M. & G. 45; Sculthorpe v. Tipper, 1871, L. R. 13 Eq. 240; Edwards v. Edmunds, 1876, 34 L. T. 524. Approved, Marsden v. Kent, 1877, 5 Ch. D. 598. See Re Owens, 1882, 47 L. T. 63.
buxton v. buxton. Rolh. Nov. 17, 19, 20, [1835]. [See Bullock v. Wheatky, 1844, 1 Coll. 137 ; Ex parte Ohippemlale, 1854, 4 De G. M. & G. 45; Scultliorpe v. Tipper, 1871, L. R. 13 Eq. 240; Edwards v. Edmunds, 1876, 34 L. T. 524. Approved, Marsden v. Kent, 1877, 5 Ch. D. 598. See Re Owens, 1882, 47 L. T. 63.] An executor, who allowed part of a testator's assets to remain invested in Mexican bonds for a year and seven months after the testator's death, and eventually sold the bonds at a lower price than might have been obtained by a sale at an earlier period, but who appeared to have acted throughout with diligence and good faith, was. held, under the circumstances, not to be liable for the loss consequent on his not having sold them sooner. A difference of opinion between two executors, as to the propriety of converting the assets at a particular period, followed by a demand made by one of them upon the other to concur in effecting an immediate conversion, does not deprive the latter of the right to exercise his own discretion, or render him liable for the loss that may arise from the delay consequent on his declining to comply with the demand. By the decree in this suit, which was instituted for the purpose of having the estate of the testator, Benjamin Buxton, administered according to the trusts declared in his will, it was among other things directed that the Master should inquire and state when the Mexican bonds in the pleadings mentioned were sold, and whether, in a provident administration of the estate of the testator, they ought to have been sooner sold; and whether any and what loss was sustained by the testator's estate by the bonds not having been sooner sold; and the Master was to be at liberty to state any special circumstances relating to the saicl bonds as he might think n't. [81] Benjamin Buxton, by his will, elated the llth of January 1825, after giving-divers pecuniary legacies to his relations therein mentioned, and among others a legacy of 5000 to his brother, the Defendant John Buxton, devised and bequeathed a, freehold messuage in Liverpool, and also all his household goods, fixtures, furniture, &c., therein, to hia sister-in-law, Alice Buxton, for her life, and after her decease unto the said John Buxton and John Fearon, and the survivors, &c., their heirs, executors, administrators and assigns, upon trust, with all convenient speed after her decease, to realise the household furniture and other things of a personal nature, and also to sell and dispose of the freehold messuage, and to hold the produce of such real and personal estate upon the trusts declared of his residuary property. And the testator f ive, devised, and bequeathed unto the said John Buxton, John Fearon, and Alice uxton (whom he appointed the executors and executrix of his will), and the survivors. &c., all hia real and personal estate not before specifically devised or bequeathed upon trust, with all convenient speed after his decease to call in and convert into money such part of his personalty as should not consist of money, and also to sell and dispose of his freehold and leasehold estates in such manner and at such prices as to his said trustees should seem reasonable; and, subject to the payment of his debts and funeral and testamentary expenses and legacies, to hold the proceeds upon trust, to raise two several sums of 10,000 and 5000, and to invest the same in the public funds, or on real security, and to pay the interest and dividends to the several parties, and according to the several trusts therein mentioned. The testator then gave the residue of his personal estate to be distributed among certain charities which he specified ; and directed that all his said legacies should be paid within four calendar months after his decease; [82] and he further authorised his executors to pay any debts owing by him or claimed from him upon any evidence they should think proper. Lastly, he declared that his said trustees should be charged and chargeable 308 BITXTON V. BUXTON 1 MY. ft CB. 83. respectively only for such monies as they should respectively actually receive by virtue of the trusts in them reposed, notwithstanding their giving or signing, or joining in giving or signing, any receipt or receipts for the sake of conformity ; and that any one or more of them should not be answerable or accountable for the other or others of them, or for the acts, receipts, neglects, or defaults respectively of the other or others of them, but each of them only for his or her own acts, receipts, neglects, or defaults respectively; and that they should not be answerable or accountable for any banker, goldsmith, broker, or other person with whom, or in whose hands or custody, any part of the said trust monies should or might be deposited or lodged for safe custody, or otherwise in the execution of the trusts; and that they should not be answerable or accountable for the insufficiency or deficiency of any securities, stocks, or funds in or upon which the said trust monies, or any part thereof, should be placed out or invested, or any other misfortune, loss, or damage which might happen in the execution of the trusts, or in relation thereto, except the same should happen by or through their own wilful default respectively. The testator died on the 21st of March 1826, and his will was proved by John Buxton and Alice Buxton on the 5th of May 1826, and by John Fearon, the other executor, in the month of July 1827. The affidavit of D. F. Atkinson, made in support of the state of facts carried in before the Master on be-[83]-half of the Plaintiff's, among other things stated that he had been the solicitor and confidential adviser of the testator, and subsequently of the executrix Alice Buxton, by whom he had been consulted and employed in the management of the testator's affairs after his decease : That the testator was at the time of his death possessed of 20,450 5 per cent., and also of 200 6 per cent. Mexican bonds: That in the month...
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