Harvell v Foster
| Jurisdiction | England & Wales |
| Judgment Date | 16 July 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0716-1 |
| Court | Court of Appeal |
| Date | 16 July 1954 |
[1954] EWCA Civ J0716-1
In the Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Sir 'Raymond Evershed)
Lord Justice Jenkins
Lord Justice Hodson.
Mr H.A.H. CHRISTIE, Q.C. and Mr C.E. ROCHFORD (instructed by Messrs Bailey, Breeze & Wyles) appeared on behalf of the Appellant (Plaintiff).
Mr S. PASCOE HAYWARD. Q.C. and Mr JOHN MONCKTON (instructed by Messrs white & Leonard, Agents for Messrs Chanter, Burrington & Foster, Barnstaple) appeared on behalf of the Respondents (Defendants).
THE MASTER OF THE ROLLS. The Judgment I am about to read is the Judgment of the Court.
This is an appeal by the Plaintiff, Anne Elizabeth Harvell, from a Judgment of the Lord Chief Justice dated the 12th March, 1954, dismissing an action brought by her against the two Defendants, Robert Tonge Foster and Alfred John Michael Maidlow Davis (partners in the firm of Chanter, Burrington & Foster, Solicitors of Barnstaple) on an administration bond in which the Defendants had joined as sureties, such bond having been given in respect of a grant to the Plaintiff's husband of representation to the estate of her late father. The question in the case is whether, in the circumstances stated below, the admitted default of the Plaintiff's husband constituted a breach of the condition of the bond so as to entitle the Plaintiff to Judgment against the defendants us sureties.
By his will dated the 24th October, 1947. the Plaintiff's father, William John Askew (hereinafter referred to as "the testator") gave all his real and personal estate wheresoever and whatsoever to the Plaintiff (then Anne Elizabeth Askew, spinster) absolutely and appointed her sole executrix of such will. The Testator died on the 8th February, 1948. The Plaintiff was at that time an infant just under 19 years of age, having been born on the 26th March, 1929. She was living with the testator at his house known as Leys Cottage, Church Hill, East Down, in the County of Devon. On the 22nd April, 1948, the Plaintiff married one Don Eric Harvell, who is hereinafter referred to as "the husband". The Plaintiff, by reason of her infancy, could not obtain a grant of probate of the testator's will and, under the advice of Messrs Chanter, Burrington & Foster, application was made in the Principal Probate Registry for the issue to the husband of a grant of administration to the estate of the testator with the will annexed during the minority of the Plaintiff.
Section 160(1) of the Judicature (Consolidation) Act 1925 provides: "Probate or administration shall not be granted to more than four persons in respect of the same property, and administration shall, if there is a minority or if a life interest arises under the will or intestacy, be granted either to a trust corporation, with or without an individual, or to not less than two individuals: Provided that the court in granting administration may act on such prima facie evidence, furnished by the applicant or any other person, as to whether or not there is a minority or life interest, as may be prescribed by probate rules and orders".
Section 165 of the same Act provides: "(1) there an infant is sole executor of a will, administration with the will annexed shall be granted to his guardian, or to such other person as the court thinks fit, until the infant attains the are of twenty-one years, and on his attaining that age, and not before, probate of the will may be granted to him. (2) Where a testator by his will appoints an infant to be an executor, the appointment shall not operate to transfer any interest in the property of the deceased to the infant or to constitute him a personal representative for any purpose unless and until probate is granted to him under this section".
Section 167 of the same Act provides (so far as material): "(1) Every person to whom a grant of administration is made shall give a bond (in this section referred to as 'an administration bond') to the senior registrar of the Probate Division by the name of 'the principal probate registrar', and, subject to the provisions of this section, if the principal probate registrar, or, where the grant was made in a district registry, the district probate registrar, so requires with one or more sureties conditioned for duly collecting, getting in, and administering the real and personal estate of the deceased. (2) The principal probate registrar for the time being shall have power to enforce any administration bond or to assign itin accordance with the provisions of this section to some other person. (3) An administration bond shall be in such form as may be directed by probate rules and orders. (4) Where it appears to the satisfaction of the court or a judge that the condition of an administration bond has been broken, the court or judge may, on an application in that behalf, order that the bond shall be assigned to such person as may be specified in the order, and the person to whom the bond is assigned in pursuance of the order shall be entitled to sue thereon in his own name as if it had been originally given to him instead of to the principal probate registrar, and to recover thereon as trustee for all persons interested the full amount recoverable in respect of the breach of the condition thereof".
It would seem that the provisions in Section 160(1) of the Act to the effect that, where there is a minority, administration shall be granted to a trust corporation with or without an individual or to not less than two individuals, is not regarded as applicable to the case of a grant during the minority of an infant sole executor pursuant to Section 165, even though the infant is also beneficially interested. At all events, in the present case the application for a grant to the husband alone was acceded to, with the unfortunate consequences to which we will shortly refer. In compliance with Section 167(1) the husband, as the intended administrator, and the two Defendants as sureties, gave to the Principal Probate Registrar a joint and several administration bond dated the 26th May, 1949, in the form prescribed by the non-contentious Probate Rules, and this having been done the grant to the husband was made on the 13th June, 1949.
The administration bond so given by the husband and the two Defendants was in the sum of 2,698 (that being the prescribed penalty of double the gross value of the testator's estate as sworn for the purposes of the grant, namely, 1,348, 13, 7d.), and it was conditioned as follows: "Thecondition of this obligation is such that if the above named Don Eric Harvell the duly elected curator or guardian of Anne Elizabeth Harvell the sole executrix and sole residuary legatee or devisee under the will of William John Askew, deceased, of Lays Cottage, Church Hill, East Down, aforesaid salesman who died on the 8th day of February, 1948, and the intended administrator (with the Will) of all the estate which by law devolves on and vests in the person representative of the said deceased for the use and benefit of the said Anne Elizabeth Harvell and until she shall attain the age of 21 years do, when lawfully called on in that behalf, make or cause to be made a true and perfect inventory of the said estate which has or shall come to the hands, possession or knowledge of the said intended administrator, and the same so made do exhibit or cause to be exhibited, into the Principal Probate Registry of the said Division, whenever required by law so to do, and the said estate do well and truly administer according to law and further do make or cause to be made a just and true account of the administration of the said estate whenever required by law so to do, then this obligation to be void ead of none effect, or else to remain in full force and virtue".
The grant to the husband was in the usual form for a grant with Will annexed during the minority of a sole infant executor and was expressed to be granted to him as "the lawful husband of and the guardian duly elected by the said minor" (that is, the Plaintiff) "for the use and benefit of the said minor until she shall attain the age of 21 years". The main asset of the testator's estate consisted of his house, Leys Cottage, which was valued for the purposes of the grant at 3,300. This, with personality sworn at 48. 13. 7d., made up the gross value of 1,348. 13. 7d., as against which there were a mortgage on the house of 166. 9. 9d. and funeral expenses and debts amounting to 31. 10. 9d., leaving a net estate, as sworn for the purposes of the grant, of 1.150, 13. 1d.
After the grant to the husband had been made, he and the Plaintiff left Leys Cottage and went to live with his mother at 24, Westmoor Road, Enfield, Middlesex. Messrs Chanter, Burrington & Foster, as agents for the husband, sold Leys Cottage, got in the small outstanding items of personal estate, paid the mortgage and other debts and the funeral and administration expenses, and retained their own costs. The net residuary estate resulting from these operations amounted to 999. 13. 9d. Messrs Chanter, Burrinton & Foster duly paid this sum to the husband, as to 950 by a cheque generally on account sent to the husband at enfield in a letter dated the 11th July, 1949, and acknowledged by him on the following day, and as to the balance of 49. 13. 9d. by a cheque sent to the husband at Enfield together with their account in a letter dated the 24th August, 1949, and acknowledged by him on the 27th of the same month. It appears that between the 11th July and the 24th August, 1949, Kessrs Chanter; Burrington Foster had not in an asset which remained outstanding on the former date in the shape of a sum of 28. 4. Od. due from the Co-operative Insurance Society.
According to the uncontradicted evidence of the Plaintiff, the course of events after the husband received the cheque for 950 was as follows: The cheque was...
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