Heighington v Grant
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1844 |
| Date | 01 January 1844 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 761
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 171; 10 Jur. 21. See S. C. 1 Beav. 228; 5 My. & Cr. 258.
[600] heighington v. grant. Feb. 5, 1844; Dec. 20, 1845. [S. C. 11 L. J. Ch. 171; 10 Jur. 21. See S. C. 1 Beav. 228 ; 5 My. & Cr. 258.] Mere neglect of duty in an executor, as, for instance, the omission to invest balances pursuant to a direction in the will, if unaccompanied by fraud, is not such misconduct as to disentitle him to the general costs of a suit for the administration of the estate, although it may subject him to the costs of so much of the suit aa was occasioned by such neglect. This was an appeal from a decretal order of the Master of the Rolls, by which an executor and trustee, who had been charged by the decree with compound interest at 5 per cent. (1) on balances which he had retained in his hands, and with the costs of so much of the suit as sought to charge him with such interest (the costs of the rest of the suit being reserved) was, on further directions, allowed his costs of the rest of the suit, as between solicitor and client, out of the estate. Mr. Wakefield and Mr. Shebbeare, for the appeal, contended that the order on further directions was inconsistent with the decree; for that an executor was never charged with compound interest at 5 per cent., unless for misconduct so gross as, if not to make him liable for the costs of the whole suit, at all events to disentitle him to receive his costs of any part of it. Raphael v. Boe-km (11 Ves. 92, 13 Yes. 590), Tebbs v.- Carpenter (1 Madd. 290), Ci-icke.lt v. Betltune (1 J. & W. 586); and that in this case, if the Defendant had not disputed [601] his liability for such interest, the suit would never have been instituted. Mr. Russell and Mr. T. Parker, for the Respondent, shewed from the record that the dispute about interest had not been the only occasion of the suit, inasmuch as the bill not only prayed the general execution of the trusts of the will, but contained other charges of misconduct against the Defendant which had not been substantiated ; and they relied upon Flanagan v. Nolan (1 Molloy, 84), and Trailers v. Tawnseml (Ibitl. 495), as shewing that executors were not disallowed their costs, unless their accounts were falsified, or their misconduct were such as to amount to fraud; and that the mere omission to invest balances was not considered to be misconduct of that nature. Mr. Wakefield, in reply, insisted that...
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