Cowell v Gatcombe
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1859 |
| Date | 19 November 1859 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 225
ROLLS COURT
S7BBAV.M8. COWELL V. GATCOMBE 225 [568] cowell v. gatcombe. Nov. 19, 1859. A. B., one of the two trustees and executors of a will and resident in London, authorized a person to get in three mortgages (part of the estate). The solicitor forwarded the deeds of reconveyance to C. D., the other trustee, in the country, who executed and returned them. The solicitor received the money and paid it to A. B. alone, who misapplied it. Held, that C. D. was liable for the amount. The testatrix, Mrs. Gatcombe, by her will, devised and bequeathed the residue of her real and personal estate to Richard Gatcombe and John Shering Clark, upon certain trusts for sale and conversion into money, and upon trust to invest the proceeds. They were to hold one moiety in trust for her daughter Mrs, Stone for her separate use for life, without power of anticipation, with remainder to her children. The other moiety was to be held on trusts for her daughter Mrs. Cowell, her husband and children. The testatrix appointed Kichard Gatcombe and John Shering Clark her executors. The testatrix died in 1835, and her will was proved by Richard Gatcombe and John Shering Clark. Clark was a stockbroker, resident in London, and Richard Gatcombe resided at Plymouth. The testatrix's assets consisted partly of three mortgages, viz. :-Musgrave's mortgage for £600, Bulwer's mortgage for .£1200 and Robinson's mortgage for £532, 13s. 6d. In 1837 Clark, who principally acted, employed a solicitor, Mr. Stephens, to get iu the three mortgages, which he did. [569] Mr. Stephens said that he acted as solicitor of both executors, instructed by Mr. Clark, that he never saw or received any instructions from Richard Gatcombe, but that Mr. Gateombe was aware that he was acting as solicitor for the executors. That he transmitted the deeds of tranfer and release to Mr. Gatcombe with a letter, and received them back again from him signed, but without any letter. These deeds being executed with proper receipts, Mr. Stephens received the amounts due on the three mortgages, and he handed over the money to Clark alone. It appeared that Clark misappropriated the money, and a suit having been instituted against him in 1841, he absconded and died insolvent in America, and the amount of the three mortgages thereby became wholly lost to the trust. Richard Gatcombe died in 1855. The question now raised was, whether the estate of Richard Gatcombe was...
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