Fenwicke v Clarke
| Jurisdiction | England & Wales |
| Judgment Date | 02 June 1862 |
| Date | 02 June 1862 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 1176
BEFORE THE LORDS JUSTICES.
S. C. 6 L. T. 593; 10 W. R. 636. Followed, In re Winslow, 1890, 45 Ch. D. 254.
[240] fenwicke v. clarke. Before the Lords Justices. June 2, 1862. [S. C. 6 L. T. 593; 10 W. R. 636. Followed, In re Window, 1890, 45 Ch. D. 254.] A testatrix gave some legacies absolutely, others to tenants for life with remainder over, and directed the settled legacies to be invested in the funds or on mortgage. The assets were sufficient to pay all the legacies and leave a trifling residue. The executors paid all the legacies which were given absolutely and left the remaining cash in band, amounting to =£500, at a bank, until the money due on some mortgages which were about to be paid off came in, intending then to invest the whole on a mortgage which they were negotiating. Fourteen months after the death of the testatrix, the bank, which up to that time had been in high repute, stopped payment, half of the £500 was thus lost, and the estate was rendered insufficient for payment of the legacies in full. Held, that the executors were not responsible for the loss, and that, as the assets had been originally sufficient to pay all the legacies in full, the legatees who had been paid were not liable to contribute to the loss, which must fall wholly on the unsatisfied legatees. This was an appeal by the Plaintiff from a decree of Vice-Chancellor Stuart. Jane French, the testatrix in the cause, appointed the Plaintiff and the Defendants. J. T. Clarke and J. H. Clarke her executors. She gave various legacies, some absolutely, others for life, with remainders over, and bequeathed the residue to her niece Jane Greenhow. The testatrix directed that all trust-monies not immediately payable to the legatees or otherwise immediately applicable should be invested by her trustees in Govern-[241]-ment or real securities, with the usual power to vary investments. The testatrix died on 24th September 1856. On 3d December 1856 the executors opened an account with the Northumberland and Durham District Banking Company, who had been the bankers of the testatrix, and were the bankers of the trustees individually. The bank was at this time in high repute, and continued so till the time of its stoppage. The executors got in the bulk of the estate and paid all the legacies which were bequeathed absolutely, and rendered an account, shewing a residue of £23, which on 7th July 1857 they paid over to the...
To continue reading
Request your trial