Courtenay v Williams
| Jurisdiction | England & Wales |
| Judgment Date | 20 July 1844 |
| Date | 20 July 1844 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 494
HIGH COURT OF CHANCERY
Affirmed, 15 L. J. Ch. 204. See In re Morley, 1869, L. R. 8 Eq. 599; In re Milnes, 1885, 53 L. T. 535; In re Akerman [1891], 3 Ch. 212; In re Watson [1896], 1 Ch. 931; Dingle v. Coppen [1899], 1 Ch. 726; In re Lloyd [1903], 1 Ch. 401. See also 3 Hare, 639.
[539] courtbnay v. williams. Jwne 27, July 10, 20, 1844. [Affirmed, 15 L. J. Ch. 204. See In re Morley, 1869, L. E. 8 Eq. 599 ; In re Milnes, 1885, 53 L. T. 535; In re Akerman [1891], 3 Ch. 212; In re Watson [1896], 1 Ch. 931; Dingle v. Cappen [1899], 1 Ch. 726; In re Lloyd [1903], 1 Ch. 401. See also 3 Hare, 639.] In a suit by a legatee to obtain payment of the legacy, out of the assets of the testator, in a due course of administration : Held, that the executor might retain so much 3 HAKE, 540. COUBTENAY V. WILLIAMS 495 of the legacy as was sufficient to satisfy a debt due from the legatee to the testator, at the time of his death, although the remedy for such debt was, at the time of the death of the testator, barred by the Statute of Limitations, 21 Jao. 1, c. 16. Whether the executor would have had the same right of retainer if the suit had been for payment by himself personally, and not out of assets of the testator, quaere ? It being admitted, or proved, that advances had been made by the testator to the legatee : Held, that cheques drawn by the testator on his bankers, in favour of, and paid by them to, the legatee, were evidence on the question of the amount of such advances; and that an admission of a debt to the testator, made by the legatee, in his balance-sheet, and examination under his bankruptcy (though it did not charge himself so as to take the debt out of the Statute of Limitations), was evidence of the.character of the advances which had been made, on the question, whether such advances were loans or gifts. The testator, A. Eichardson, by his will, dated in 1825, bequeathed a legacy of 2500 to Eobert Hamilton, which he declared should be for his sole use and benefit, and that his receipt alone should be a discharge. The testator afterwards made several codicils to his. will, dated in 1830 and 1831, and revoked other benefits which he had given to Eobert Hamilton, but did not revoke the legacy of 2500. The testator died on the 26th of December 1831. The Plaintiff, who was the assignee of the legacy of 2500, filed her bill in January 1842 against the executors of the testator for payment of it. At the hearing the Defendants submitted to bring into Court a sum to answer the legacy; and a reference was directed to inquire whether, at the time of the death of the testator, Eobert Hamilton was indebted to him in any, and what, sum of money, with liberty to state special circumstances. The Master, by his report, found that the testator was a gentleman of large fortune, and that for many years previous, and up to within about two years of his decease, a great intimacy existed between him and Eobert Hamilton; and that Eobert Hamilton frequently applied to him for money, with which applications the testator often complied. The Master then set forth the particulars of several [540] bills of exchange, drawn by Eobert Hamilton on, and accepted by, the testator, and afterwards paid by him when at maturity; and also of several cheques'drawn by the testator on his bankers, and payable to Eobert Hamilton, or bearer, and afterwards paid by the said bankers; all of such bills and cheques, except the two last bills, being of different dates, between July 1828 and December 1825; and the last two bills being dated, one, the 29th of May 1826, for 100, and the other the 1st of May 1827, for 200. The Master also found that, on the 21st of October 1824, the testator advanced to Eobert Hamilton 1100, to purchase a full pay company in a regiment of foot; and that Eobert Hamilton thereupon gave the testator a receipt, as follows :-" Engle-field Green, Egham, 21st October 1824.-Eeceived from A. Eichardson, Esq., 1100, for the purchase of a full pay company.-Eobert Hamilton, 99th regiment." And the Master found that, by the state of facts of the Plaintiff, it was alleged that the testator, in the year 1824, gave to, and expended for, Eobert Hamilton 1100, in the purchase of his commission, and in the getting promotion for him in his regiment; and that the testator, at various times during the year 1823, and down to 1828, gave to Eobert Hamilton several sums of money for his outfit, and to meet the expenses of his regiment;'and that the testator did not, at any time during his life, set up any claim or make any demand against Eobert Hamilton, in respect of such donations or gifts; and, even if such gifts could have been claimed as debts, the testatof well knew the inability of Eobert Hamilton to pay the amount thereof; and the testator did not intend that the said alleged debts should be put in suit or otherwise demanded by his executors; or, at least, that the same should be put in suit or demanded against the said legacy of 2500; and he found that Bosanquet & Co., by order from, and on account of, the testator, paid to Eobert [541] Hamilton various sums of money in respect of a weekly payment of 2, beginning in April and ending in December 1831; and he found that, in certain depositions taken in a cause of Hamilton v. Williams, Sir John Hamilton, amongst other things, said that he knew the testator intimately for twenty years before his death; and that about the autumn of 1824, when Robert 496 COUKTENAY V. WILLIAMS 3 HARE, 542. Hamilton was gazetted a captain in the army, the deponent visited the testator, and, in a conversation with him relative to the 1100, which the testator told the deponent he had given for the purchase of the captain's commission, the testator said that he (the testator) was very happy in having purchased the commission, and hoped Robert Hamilton would get forward in the army, and that he had made him a present of it, and that he had given him a great deal of money, and should then stop his hand, as he had given him so much; and that, late in 1830, the testator told the deponent that he (the testator) had, when the said commission was purchased, given Robert Hamilton a large sum of money for the purpose of fitting him out for his regiment; and that the testator afterwards told the deponent that he had since given Robert Hamilton another large sum to fit him out a second time; and the deponent understood from the testator that all the monies which the testator had advanced to or for Robert Hamilton had been advanced as gifts, and not as loans. In opposition to the latter evidence, the Master found that one Baylis was employed, in July 1830, by the solicitor of Robert Hamilton to print a certain exhibit, being a book or printed statement of Robert Hamilton, and that the proof-sheets of such statement were sent to such solicitor; but that, while the book was being printed, Robert Hamilton once or twice brought some proof-sheets thereof to Baylis, and said that he had revised and corrected them. And the Master found that Robert Hamilton was compelled to sell his commission; [542] but was only allowed so to do on the understanding that 1000, part of the money to arise from such sale, should remain with the agent of the regiment for the payment of certain creditors of Robert Hamilton. And he found that, pending the communications with respect to such sale, Robert Hamilton, in a letter to the Secretary of the Commander-in-Chief, objected to such application of the money to arise therefrom, on the ground, amongst others, of being under the most positive engagements to repay the 1100 originally advanced him by the testator for the purchase of his company.(l) And the Master found that, after retiring from the army, Robert Hamilton entered into business as a wine merchant, and, in January 1832, was declared a bankrupt; and that, in the list of debts stated in the balance-sheet tendered by him on oath, under the commission, to be owing from him, is inserted the item :-"The executors of the late Mr. Richardson. Sundry advances by the late Mr. Richardson ; say, 6000;" and that, at the Court of Commissioners of Bankrupts, on the 27th of March 1832, before E. Holroyd, Esq., Robert Hamilton, being sworn and examined, said that, about twelve years before that time, Mr. Richardson proposed to him to make advances of cash, and accordingly made advances to him up to the time of his said examination, to the amount of 10,000, to the best of his recollection : that, about February 1831, he gave to Mr. Richardson, by his desire, an acknowledgment of the money which he had advanced, to the amount of 8000, as far as his recollection served; and that 'he believed the said sum of 8000 had been previously advanced to him by Mr. Richardson : that he could not state what amount was owing by him to Mr. Richardson at the end of the year 1825: that he [543] occasionally gave to Mr. Richardson his acceptances and promissory notes for part of the money he had advanced, and a receipt also for 1100: that the money was occasionally advanced by his acceptances, by cheques and in money: that he had had frequent conversations with Mr. Richardson since the year 1825; and upon one occasion he adverted to the will he had made: he never told him that the money which he had advanced to him from time to time should go as an equivalent, or in satisfaction of any legacy he had left him; in fact, he never adverted to the legacy : that Mr. Richardson invariably stated that he should make him repay the different sums he had advanced, and particularly if he left the army. And the Master found that, in December 1832, the fiat was annulled with the consent of the creditors who had proved under it, and that the executors of the testator did not prove any debt under the same, or offer any opposition to the annulling thereof. And the Master disallowed the state of facts and charge of the Plaintiff, and allowed the...
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