Elliott and Others, Executrix and Executors, v Elliott and Another
| Jurisdiction | England & Wales |
| Judgment Date | 11 November 1841 |
| Date | 11 November 1841 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 11
EXCHEQUER OF PLEAS.
S. C. 11 L. J. Ex. 3.
9JJ. &W. 23. ELLIOTT V. ELLIOTT 11 [23] i elliott and others, Executrix and Executors, v. elliott and another. Exch. of Pleas. Nov. 11, 1841.-A teatator bequeathed to hia two sons his two carriage manufactories, with all fixtures, implements, tools, stock, job-carriages, harness, and every thing appertaining to his trade in the said manufactories. At the time of his death, a carriage was in one of the manufactories, unfinished, which was being built to the order of a purchaser. A question arose between the Executors arid the sons, whether this carriage fell within the above bequest; and the executors paid the legacy duty oti the whole, but annexed the following memorandum to the legacy receipt:-" A disagreement arising between the sons S. and T. and the executors, as to whether the whole of this item belongs to the said sons, or part to the residue, the executors desire to pay the duty on the whole, leaving it for them to settle with the legatees the proportion of duty, when the matter in dispute shall be determined." The sons retained possession of and finished the carriage, delivered it to the purchaser, and received the price. In an action by the executors against them for money had and received, commenced two years afterwards :-Held, that there was no evidence to go to the jury of assent by the executors to the legacy of the carriage to the defendants. [S. C. 11 L. J. Ex. 3.] Assumpsit for money had and received by the defendants to the use of the plaintiffs as executrix and executors, and on an account stated with them as such. Plea, non assuiupseruot. At the trial before Lord Lfenmari, C. J., at the last Spring Assizes for Surrey, the following facts appeared :- The plaintiffs' testator, who was a coach-maker in the Westminster Road, had received an order for a chariot, which, at the time of his death, on the 13th January 1838, was on his premises, and was still, as the defendants alleged, in an unfinished states By his will, he bequeathed to his two sorts, the defendants, his two carriage manufactories, " with all fixtures, implements, tools, stock, job-carriages, harness, and everything appertaining to his trade or business in the said manufactories, excepting book debts;" and the residue of his effects he divided equally amongst his five children. On the 7th February, 1838, the plaintiffs took out probate of his will; and a. difference arising between them and the defendants, as to whether the chariot in question eould be considered "stock," within the terms of the above bequest, the plaintiffs made the following entries in the legacy...
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