Hill v Walker
| Jurisdiction | England & Wales |
| Judgment Date | 22 February 1858 |
| Date | 22 February 1858 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 69
HIGH COURT OF CHANCERY
See Midgley v. Midgley [1893], 3 Ch. 297; Budgett v. Budgett [1895], 1 Ch. 215; Trevor v. Hutchins [1896], 1 Ch. 848.
Executor. Debt due to. His Right to retain. Statute of Limitations. Devastavit. Mistake of Fact. Payments under. Will. Codicil. Revocation.
[166] hill v. walker. Feb. 22, 1858. [[See Midgley v. Midgley [1893], 3 Ch. 297; Budgett v. Budgett [1895], 1 Ch. 215; Trevor v. Hutchins [1896], 1 Ch. 848.] Executor. Debt due to. His Right to retain. Statute of Limitations. Devastavit. Mistake of Fact. Payments under. Will. Codicil. Revocation. An executor is entitled to retain his debt, although barred by the Statute of Limita- tions during the lifetime of the testator. Therefore, where an executor, under a mistake of facts, had made yearly payments to 70 HILL V. WALKER 4K. &J.167. his testatrix for twenty-five years previous to her death, he was held entitled to retain the amount out of her residuary estate. Contrary dictum of Bayley, J., in M'Culloch v. Dawes (9 Dowl. & Ryl. 43), disapproved. Testatrix, by her will, bequeathed a sum of money to trustees upon trust to accumulate for a period exceeding what the law allows, and to pay and divide the principal sum, interest and accumulations unto and amongst a certain class, with a power of advancement in favour of sons. By a codicil, after reciting that she had by her will bequeathed this sum upon trust to accumulate, and to pay and divide the same sum and all accumulations thereof in manner therein mentioned, she directed that, in lieu of the accumulation and disposition made thereof by her will, the trustees should accumulate for twenty-one years after her decease, and should stand possessed of the principal money, interest and accumulations upon trust for such of the class as should be then living. The codicil did not repeat the power of advancement, but concluded by confirming the will in every particular in which the same was not thereby altered. Held, that the power of advancement was a valid and subsisting power, and was not revoked by the codicil. James Walker, as executor of his mother, Jane Walker, the testatrix in this cause, claimed to retain out of her residuary personal estate the sum of 4800, being the amount of certain yearly payments erroneously made by him to the testatrix, from February 1829, when she became a widow, until her death in 1854. The bill, filed by the trustees of the will against James Walker and the residuary legatees, prayed, inter alia, that it might be determined by the Court whether the Defendant, James Walker, was or was not entitled to retain the said sum. It appeared in evidence that the several payments, amounting to the sum in question, had been made by the Defendant to the testatrix under the mistaken impression that a jointure charged by her marriage settlement upon his estates amounted to 800, whereas, upon her death, he for the first time discovered, as the fact was, that it amounted to 600 only. [167] Mr. A. J. Lewis appeared for the Plaintiffs. Mr. James, Q.C., and Mr. Hingeston, for the Defendant, James Walker, contended that the...
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