Coard v Holderness
| Jurisdiction | England & Wales |
| Judgment Date | 21 June 1856 |
| Date | 21 June 1856 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 1158
ROLLS COURT
[391] coard v. holdkrnehs. June 21, 1856. The testator bequeathed to C. W. C. the full amount of whatever sum H. H. might be indebted to C. W. C. at the testator's decease. The testator added, "and it is my positive will that the amount required for the payment of the same, whatever it may be, be taken out of the amount of that share to which H. H. becomes entitled to a life interest under my will." The share of H. H. proved insufficient to pay the 23BEAV,SM. STEWART V. STEWART 1159 debt. Held, that this was not a demonstrative legacy to C. "W. C., and that his debt could only be satisfied out of the assets so far as the share of H. H. therein would extend. The decision of the Master of the Rolls, on the general effect of the will of the testator in this cause, is reported, ante (20 Beav. 147). In Chambers, on taking the accounts of the testator's real and personal estate, a question arose as to the effect of the codicil to the testator's will, dated the 12th October 1853, which was in the following words:- " Whereas my son Henry Holderness has had considerable sums of money from Charles Walton Coard, now I give and bequeath unto Charles Walton Coard the full amount of whatever sum or sums of money my son Henry Holderness may be indebted to the said Charles Walton Coard at my decease, with interest on the same ; ami it is my positive will that the amount required for the payment of the same, whatever it may be, be taken out of the amount of that share to which he, my son Henry Holderness, becomes entitled to a life interest under my last will and testament." At the testator's death, 923, 15s. was due from Henry Holderness to Charles Walton Coard, and it being admitted that the share, to which Henry Holderness became entitled under the testator's will, was insufficient for the payment of the debt, Coard claimed to be paid or to retain the balance thereof out of the testator's general residuary personal estate, before division. [392] Mr. Lloyd and Mr. Prendergast, for the Plaintiff, Charles Walton Coard, contended that although the legacy was directed to be paid out of the share of the son Henry Holderness, still it was not the less payable out of the testator's general personal estate, it being in the nature of a demonstrative legacy, and not of a specific character. That it was a direct gift, and that it waa a matter of secondary consideration out of what fund it was to be satisfied, and did not fail by the insufficiency of the fund out of which it was primarily payable. They cited Mann v. Copland (2 Madd. 223), Fowler v. Willoughby (2 Sim. & Stu. 354), and Willm v. Rhodes (2 Russ. 452). Mr. Eoundell Palmer and Mr. J. Sidney Smith, for the residuary legatees, were not heard. the master OF the rolls [Sir John Romilly]. I am of opinion that those cases are distinguishable from the present. There, several legacies having been given, the testator afterwards provided a fund which he directed to be the primary fund for their payment. I concur with those authorities, that the fund which the testator has made primarily applicable for that purpose shall be first applied in payment, and that the general legacies shall not fail by its insufficiency. This case is distinguishable, the peculiarity of it is, that it is a bequest to the son's creditor, of what may be owing to him, and the testator then proceeds to say that the amount required, whatever it may be, shall be paid out of the son's share under the will. This positive direction is so incorporated with the original bequest, [393] that I feel it impossible to support it beyond the son's interest. It is not so much a direct gift of the amount of the son's debt to his creditor, as a mode of providing for ita payment out of what the son may take under the will. If the son had predeceased the testator, there would have been no benefit to the creditor, for the debt was only to be taken out of the share to which the son became entitled under the will. I think that nothing is given to the creditor but out of the share of the son, and that the debt, whatever may be its amount at the testator's death, is merely to be taken out of the share of the son, so far only as it will extend.
English Reports Citation: 52 E.R. 559
ROLLS COURT
S. C. 22 Beav. 391; 24 L. J. Ch. 388; 1 Jur. (N. S.), 316; 3 W. R. 311. See Prescott v. Barker, 1874, L. R. 9 Ch. 187. Distinguished, Lloyd v. Lloyd, 1869, L. R. 7 Eq. 458; Kirby-Smith v. Parnell [1903], 1 Ch. 483.
20BEAV.M7. COARD V. HOLDERNESS 559 [147] coard v. holdernesh. March 3, 5, 1855. [S. C. 22 Beav. 391; 24 L. J. Ch. 388; 1 Jur. (N. S.), 316; 3 W. R. 311. See Prescott v. Barker, 1874, L. R...
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