Lancaster v Evors
| Jurisdiction | England & Wales |
| Judgment Date | 22 June 1841 |
| Date | 22 June 1841 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 299
ROLLS COURT
S. C. 5 Jur. 525. For subsequent proceedings, see 1 Ph. 349; 41 E. R. 664; 10 Beav. 154. Distinguished, Yeatman v. Yeatman, 1877, 7 Ch. D. 214.
[158] lancaster v. evors. June 21, 22, 1841. [S. C. 5 Jur. 525. For subsequent proceedings, see 1 Ph. 349; 41 E. R. 664 ; 10 Beav. 154. Distinguished, Yeatman v. Yeatman, 1877, 7 Ch. D. 214.] It is a general rule, that a person having a claim on the assets of a testator, cannot in suing the executor make a debtor to the estate a party to the suit; but the rule admits of exceptions. Case in which a creditor of a testatrix was allowed to sue the executors and persons claiming a fund standing in Court, on which the estate of the testatrix had an equitable demand, for the purpose of obtaining payment thereout, the executors having refused to take proceedings for establishing the demand. A husband and wife joined in a mortgage of their respective estates, which were already incumbered, for the payment of debts of the husband. The estates were realised in two different suits; and the incumbrances paid. The husband's debt was, however, paid out of the wife's estate, which it exhausted; but there was a surplus of the husband's estate in Court. The husband and wife were both dead, and the only claims upon her estate were those of a mortgagee and a judgment creditor; and her only assets were such as might be realised from her equity against her husband's estate, for which her executors refused to sue. Held, that the judgment creditor might maintain a suit, against the wife's executors, the mortgagee, and a party claiming the fund in Court under the husband, for payment of the wife's two debts out of that fund. This case came before the Court upon demurrer to the whole bill for want of equity and for multifariousness. The statements in the bill were very complicated; but omitting those which did not affect the question now before the Court, the facts were as follows:- In the year 1772 Sir John Pryce was seised of an estate, subject to a mortgage to Earl Temple for 24,000. Lady Pryce, his wife, was entitled to another estate, subject to a mortgage for 5500. The latter estate had been conveyed in trust for .sale, and a contract had been entered into for the sale thereof. 300 LANCASTER V. EVORS 4 BEAV. 1B9. [159] By deed, dated in January 1772, both estates and the surplus of the money to arise from the sale of Lady Pryce's estate, were conveyed by Sir John and Lady Pryce to trustees, upon trust to sell and pay the mortgages of 24,000 and 5500; then to secure certain monies due from Sir John Pryce to Jaques; then to pay 5000 to Lady Pryce, for her separate use, and the residue to Sir John Pryce. Notwithstanding this deed, the Earl Temple filed a bill to obtain payment of his mortgage debt; and in a suit, entitled The Earl of Buckingham v. Pryce...
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...(footnotes omitted) 15 Mr Adams relies on several of the cases cited by Lewin in the footnotes to this passage. Thus, for example, in Lancaster v Evors (1841) 4 Beav 158, a creditor could enforce a cause of action vested in an estate which the executors were not willing to enforce. It was e......
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