Jones v Godsall
| Jurisdiction | England & Wales |
| Judgment Date | 27 March 1843 |
| Date | 27 March 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 141
HIGH COURT OF CHANCERY
S. C. 12 L. J. Ch. 365; affirmed, 15 L. J. Ch. 115. See Lord v. Colvin, 1867, L. R. 3 Eq. 742.
2 HARE, 342. JONES V. HOWELLS 141 [342] jones v. howells. jones v. g-odsall. March 23, 27, 1843. [S. C. 12 L. J. Ch. 365; affirmed, 15 L. J. Ch. 115. See Lord v. Colvin, 1867, L. R. 3 Eq. 742.] The Defendants to an original bill held to be necessary parties to a supplemental bill against a new Defendant, where the interests of such original Defendants as well as those of the new Defendant required that the new Defendant should be a party to the suit. Bill, by one of two next of kin, to recover from the executors of a testator funds as to which it was alleged that he died intestate, and which, in that case, they had erroneously applied. The Defendants, by their answer, said that there was another person a next of kin. After the cause was at issue the Plaintiff filed a supplemental bill against the other next of kin alone. Held, that the Defendants, the executors, ought to have an opportunity of stating upon the pleadings any case they might have as against the other next of kin, and that therefore the executors ought to be parties to the supplemental bill. Semble, a party suing as executor or administrator cannot sustain proceedings to recover a larger sum than that upon which the probate duty is calculated. Semble,.the question whether a prerogative or a diocesan probate is necessary depends, not upon the place in which the estate of the testator comes to be administered, but on the local situation of the property at the time of his death. W. Morgan, by his will and codicil, both dated the 10th of July 1817, bequeathed the residue of his personal estate to his wife, Sarah, and John Howells, his executrix and executor, upon trust (subject to the payment of his debts and certain legacies within six months after his decease) to pay to or permit the said Sarah to receive the annual proceeds thereof for her life, and after her decease to pay the remainder as she should by her will give or bequeath the same. The will and codicil were proved by Sarah Morgan and John Howells on the 21st of August 1818 in the Diocesan Court of Hereford. Sarah Morgan, by her will and several codicils, the last of which was dated the 3d of April 1820, disposed of her personal estate, and thereby bequeathed legacies to the amount of 4500 and upwards,.and appointed James Howells, the said John Howells and another her executors. Sarah Morgan died in May 1820. . James Howells and John Howells proved the will of Sarah Morgan, and administered the most part of the estate which came to their hands as her executors, but which chiefly consisted of that which formed the residuary estate of W. Morgan. The bill was filed on the 3d of September 1839 by [343] Sarah Jones and her husband, as representatives of Sarah Kinnersley, charging that the power of appointment of the residuary estate of W. Morgan, given by his will to Sarah Morgan, his wife, was not exercised by her will, and claiming the distribution of the same as upon intestacy. The Defendants were James Howells, the surviving executor of Sarah Morgan, Catherine Howells, who was the personal representative of John Huwells, and G-eorge Jones, as the personal representative of W. Morgan. The bill alleged that Sarah Kinnersley, who died in September 1822, was the sole next of kin of W. Morgan at the time of his death, and that W. Kinnersley " duly proved the will of Sarah Kinnersley in the Registry of the Diocese of Hereford, being the proper Ecclesiastical Court." That W. Kinnersley died the 16th of April 183f intestate, and letters of administration de bonis non of the estate of Sarah Kinnersle\ had been granted to the Plaintiff, Sarah Jones, out of the Consistory Court of the Bishop of Hereford. The bill also alleged that John Howells and James Howells proved the will and possessed the personal estate of Sarah Morgan, and also the personal estate of W. Morgan, which was in her hands, to a large amount: that John Howells died intestate, and that letters of administration of his estate were duly granted to the Defendant, Catherine Howells; and that letters of administration de bonis non of the estate of W, 142 JONES V. HO WELLS 2 HAHE, 344. Morgan, with his will annexed, were granted out of the Prerogative Court of the Archbishop of Canterbury to the Defendant, George Jones. The bill prayed that an account might be taken of the personal estate of the testator, W. Morgan, and the [344] residue thereof ascertained, and that the Defendant, James Howells, might be declared personally liable to make good the whole of Plaintiff's moiety of the said residue with interest thereon from the time of the death of Sarah Morgan, and the costs of suit; and that the Defendant, Catherine Howells, might also be declared personally liable to make good the Plaintiff's said moiety, interest and costs, to the extent of the said W. Morgan's estate misapplied by her and the Defendant, James Howells, since the death of John Howells, and that out of the assets of John Howells she might be declared liable to make good the Plaintiff's moiety, interest and costs, to the extent of W. Morgan's estate so misapplied by John Howells and James Howells; and that, if necessary, the usual accounts of the estates of Sarah Morgan and John Howells, deceased, might be taken. The Defendants, James Howells and Catherine Howells, by their answers, said that Sarah Morgan had always treated the residuary estate of W. Morgan as her own absolute property; that it was her intention by her will to dispose of it, and that it was so situated that effect could not be given to her will unless it was included. They said that her executors had acted on the belief that the property formerly belonging to W. Morgan had passed by the will of Sarah, and had paid and distributed the same accordingly. They said that one Jane Morgan was of kin to W. Morgan in equal degree with Sarah Kinnersley, under whom the Plaintiff, Jones, claimed. In June 1840 a preliminary reference was directed to inquire who were the next of kin of W. Morgan living at his death, and if any had since died who were their personal representatives. The Master, in January [345] 1843, reported that Sarah Kinnersley and Jane Morgan were such only next of kin, and that both of them were dead; and he found that the Plaintiff, Sarah Jones, was the personal representative of Sarah Kinnersley, and that W. Godsall was the personal representative of Jane Morgan. The subpasna to rejoin was served in November 1842, and the cause was at issue before the report was made. After the report was made the Plaintiffs filed their supplemental bill against W. Godsall alone, for the purpose of making him a party to the suit, as the personal representative of Jane Morgan. At the hearing, Mr. Eoupell, for the Plaintiff. Mr. Tinney and Mr. Hallett, for the Defendant, the representative of Sarah Morgan, took three preliminary objections : first, that the estate of Sarah Kinnersley was not sufficiently represented by virtue of the letters of administration granted to the Plaintiff out of the Diocesan Court, and that the letters of the Prerogative Court were necessary : Jernegan v. Baxter (5 Sim. 568); Twyford v. Trail (7 Sim. 92); Beadles v. Bwch (10 Sim. 332). The diocesan administration may be altogether void. (1 Williams on Executors, 237, 3d ed.) Secondly, that it appeared by the letters of administration,(1) granted to the Defendant, George Jones, of the [346] estate and effects of W. Morgan left unadministered, that they were limited to the purposes of the suit, and bore a stamp applicable to an estate sworn under the value of 50, whereas the object (if any) for which the representative was necessary was the distribution' of an estate on an alleged intestacy, of the value of 16,000 or upwards, which could not be effected without general letters of administration, bearing a stamp applicable to that sum: (1) This appeared on the production of the letters of administration in Court, which recited the intended suit, and limited the administration to the purposes thereof, and to attend, supply, substantiate and confirm the proceedings already had, or that should or might thereafter be had in the said cause, or in any other cause or suit which might be commenced in the said Court, or in any other Court, between the said parties, touching or concerning the matters at issue in the said cause or suit, and until a final decree should be had or made therein, and the said decree carried into operation, and the execution thereof fully completed, but no further or otherwise. (See 8 Sim. 509; and see also Brant v. King, 1 Williams on Executors, 489.) 2 HARE, 347. JONES V. HOWBLLS 143 dough v. Dixon (10 Sim. 564); Moores v. Ghoat (8 Sim. 508); Killock v. Greg.(I) And, thirdly, the suit was defective, owing to W. Godsall, the representative of Jane Morgan, not being a party to the same suit with the Defendants, James Howells and Catherine Howells. The defect was not cured by making G-odsall the sole Defendant to a supplemental bill: Dyson v. Morris (1 Hare, 413). Mr. Kenyon Parker, Mr. Hall and Mr. Jolliffe, for the other Defendants to the original bill. Mr. Anderdon, for Godsall, the Defendant in the supplemental bill, offered to submit to any inquiry which the Court might direct, as between him and his Co-defendants, in the same manner as if those Defendants had by their answer made a case for inquiry. Mr. Eoupell and Mr. G. L. Eussell, for the Plaintiffs. The diocesan administration is sufficient for the pre-[347]-sent purpose-that of having, the accounts taken. It may not be sufficient where money is to be paid out of Court, or perhaps when the Court is called upon to make a final decree for the distribution of the fund ; but it certainly shews a sufficient title for a preliminary decree to ascertain whether anything is due: Metcalfe v. Metcalfe...
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