Charles Turner and Others-Appellants; Thomas Francis Cox, the West India Bank, and Others-Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 14 April 1853 |
| Date | 14 April 1853 |
| Court | Privy Council |
English Reports Citation: 14 E.R. 111
ON APPEAL FROM THE COURT OF CHANCERY OF THE ISLAND OF BARBADOES.
Mews' Dig. tit. Colony; II. Particular Colonies; 22. West Indies. See Bullen and Rickey v. A'Beckett, 1863, 1 Moo. P.C. N.S. 223; 9 Jur. N.S. 973.
TURNER V. COX [1853] VIII MOORE, 289 ON APPEAL FKOM THE COURT OF CHANCERY OF THE ISLAND OF BARBADOES. CHARLES TURNER and Others- Appellants; THOMAS FRANCIS COX, the WEST INDIA BANK, and Others-Respondents * [April 13 and 14, 1853]. S. was seised of real estate in the Island of Barbadoes. S. was indebted to T. in a sum secured by S.'s bond, and at the death of T., in the lifetime of S., such bond debt was due. T., by his Will, appointed S. his executor, who proved and acted in the trusts thereof. S., after T.'s death, regularly entered up his books, debiting himself, not only with the principal but the interest of this debt annually as it accrued. In this state of affairs, S. died, being at the time indebted to B. H. and Co., of Liverpool, and having by his Will devised his real estates in Barbadoes to trustees for sale, subject to his debts, and directed them to consign the crops of such real estates to B. H. and Co., until the several debts due by him to them should be paid in manner therein described. Held, (affirming the judgment of the Court in Barbadoes, in a creditor's suit, in marshalling the assets of S.). First. That the fact of T. appointing S. his executor, did not, in equity, change the character of the debt due to T., and that such debt remained a specialty debt, as though a stranger had been appointed executor, and retained its priority [8 Moo. P.C. 315]. Second. That the Statute, 5th Geo. II., c. 7, s. 4, made real estates in the West Indies legal assets, in such a way as to give the same priority to specialty creditors against real estate, as they previously had against personal estate, and that it was not competent to a Testator by devise, to change the legal distribution of his assets, by directing a distribution equally among his creditors [8 Moo. P.C. 317]. Quaere ? Whether the direction in the Will of S., that the produce of the real estates should be consigned to B. H. and Co., in Liverpool, until the debt due by him to them should be paid off and discharged, created a lien by S. in B. H. and Co.'s favour upon the proceeds of those estates directed by the will to be sold, for any debt which, at the time of the death of S., might be owing to B. H. and Co. ? Such point not having been raised in the Court below by the exceptions to the Master's report, or at the hearing of the excep-ò tions, the Judicial Committee, as a Court-of the last resort, declined to entertain the question [8 Moo. P.C. 315-16]. The case of Charlton v. Wright (12 Sim. 274), which ruled that real estates in the West Indies might, since the passing of the 5th Geo. II., c. 7, s. 4, be devised, so as to make them equitable assets, observed upon and overruled [8 Moo. P.C. 316-17]. The Appellants, in this case, were the assignees of the estate and effects of Higgin-son and Deane, [289] merchants and copartners trading in Liverpool, under the firm of Messrs. Barton, Irlam and Higginson, and in Barbadoes, under the firm of Messrs. Higginson, Deane and Stott. The appeal was brought from an order of the Court, dated the 20th of November, 1851, made in a creditor's suit, instituted in Barbadoes, by the Appellants as such assignees, on behalf of themselves and the other creditors of William Sharp, late of that Island, against the Respondents, Cox and others; by which order certain exceptions taken by the Appellants to the Master's report upon the priority of Sharp's debts were overruled. The suit was brought under these circumstances: Sharp in his lifetime executed a bond to John Tapin, late of the Island, deceased, dated the 29th of March, 1825, for securing the sum of £1500 currency, which bond remained due at the death of Tapin, who died in the lifetime of Sharp, having by his Will bequeathed his * Present: The Lord Justice Knight Bruce, the Lord Justice Turner, the Right Hon. Dr. Lushington, the Right Hon. Sir Edward Ryan, and the Right Hon. Sir John Patteson. Ill VIII MOORE, 290 TURNER V. COX [1853] residuary estate to certain persons, and appointed Sharp executor, who proved the Will, and acted as such executor. Sharp, being indebted to Higginson and Deane, for money lent by them to him, to secure the payment of part of his debt, and interest thereon; on the 28th of December, 1843, confessed a judgment to them on n declaration filed in the Court of Common Pleas for Barbadoes, for the sum of £5000 sterling, [290] with interest at £5 per cent., from the 18th of December, 1843, on which execution issued on the 28th of December, 1843. Being further indebted to Higginson and Deane, Sharp, on the 4th of May, 1844, confessed a subsequent judgment to them on a declaration filed in the same Court, for a further sum of £5000, with interest at the rate of £5 per cent., from the 4th of May, 1844, on which judgment execution issued on the 4th of May, 1844. He was also largely indebted to them for money lent, and for goods sold by them to him for the supplies of his estate, and for money paid by them on his account. Sharp was also indebted to the West India Bank upon a bond, dated the 14th of November, 1845, whereby the Respondent, together with Cox and Creorge Sharp, became bound to the Bank in the penal sum of 26,000 dollars for securing the several sums of money therein mentioned. Sharp died on the 9th of May, 1846, seised of certain plantations in the Island, called " Claybury" and " Brewsters," with the appurtenances and the stock and effects thereon, and entitled to personal estate, having made his Will, dated the 23rd of October, 1845, by which, after bequeathing certain legacies and annuities, he devised his house at Claybury, with its offices, gardens and pleasure grounds, and ims sugar-work, plantation and lands adjoining, in the Island of Barbadoes, with the appurtenances and the live and dead stock thereon, and in general, every article, matter and thing, including all the produce of the plantation at the time of his decease, and the several chattels in his Will described, and every removable article, evcept silver and plated articles, monies and securities for money about his mansion-house at the time of his [291] decease, unto and to the use of his son, George Sharp, and his son-in-law, Cox, their heirs, executors, administrators and assigns, subject to the payment of such of his debts and legacies as should not be paid and liquidated by the means and in the manner thereinafter mentioned, upon trust, so long as one of his four single daughters, Sarah Sharp, Henrietta Sharp, Elizabeth Clarke Sharp and Wilhelmina Sharp, should live and be unmarried, to permit and suffer such of them, as should so remain unmarried, to reside in and occupy the mansion-house, etc., free of rent, and to have the use of his chattels therein mentioned; and he thereby empowered his trustees, as long as any of his daughters should be unmarried, to cultivate and manage his plantation; and to apply the annual produce of the estate : first, in payment of the costs incurred in the trusts as therein mentioned; secondly, in keeping down the interest, and gradually liquidating such of his debts and legacies as should not be paid off and discharged by the means thereinafter provided for the payment thereof ; and afterwards, upon certain trusts therein mentioned, with powers of sale and investment, for the benefit of the testator's four daughters. And he further authorised the trustee or trustees, for the time being, of his Will, if any of his debts or legacies left unpaid by the means thereinafter provided for payment thereof, should be called for at a time when they should be unable to meet the payment thereof, to borrow so much money as would enable them to pay off and satisfy the same, and to charge his plantation called " Claybury," and the lands, buildings and appurtenances thereto belonging, with the payment thereof; and he directed, authorised and em-[292]-powered his executors and execu-trixes thereinafter named, or any or either of them who should qualify to that liis Will, as soon as convenient after his death, to sell and dispose of his plantation called " Brewsters," in the Island, with the lands, buildings and appurtenances thereto; and also a piece or parcel of land situate in the parish of Christ Church, and to execute conveyances thereof and give receipts for the purchaser-money thereof as therein mentioned; and such purchase-money when received, together with all debts which might be due to him at the time of his death, save and except the debt due to him from Cox, which he bequeathed upon certain trusts, and all other property of which he might die possessed, not thereinbefore mentioned, he directed to be paid and applied by his said executors and executrixes, qualified as aforesaid, in payment of the debts due from him at the time of his death, and the legacies 112 TURNER V. COX [1853] VIII MOORE, 293 thereinbefore bequeathed ; and all such debts and legacies as should not be paid by the sale of his plantation " Brewsters," the piece or parcel of land and other effects and property as aforesaid, he thereby charged on his plantation called " Claybury," with the lands, buildings and appurtenances thereto belonging. And when the plantation called " Claybury" should be sold, under the provisions contained in his Will, he directed the chattels therein mentioned to be sold, and the proceeds thtfeof to be equally divided amongst his daughters, Sarah, Henrietta, Elizabeth Clarke and Wilhelmina, or such and so many of them as should be living. And he directed that the crops of the plantations " Brewsters " and " Claybury," until the same should be sold, should be shipped and consigned to...
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