Loomes v Stotherd
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1823 |
| Date | 01 January 1823 |
| Court | High Court of Chancery |
English Reports Citation: 57 E.R. 183
HIGH COURT OF CHANCERY
Held overruled, In re Hayward [1901], 1 Ch. 221.
Retainer. Devisee.
[458] loomes v. stotherd. March 13, July 16, 1823. [Held overruled, In re Hayward [1901], 1 Ch. 221.] Retainer. Devisee. A devisee has a right to retain a debt due to himself, or to his trustee, out of the produce of the estate devised to him. The Plaintiff was the personal representative of Robert Loomes, and the Defendant was the executrix and devisee of all the real estates of John Richard Stotherd, her late husband. The object of the bill was to have certain specialty debts, due from Stotherd to Loomes's estate, paid out of the real and personal assets of the former. The Master had reported that £1674, 3s. 9d. were due from Stotherd's estate to the trustees of his marriage settlement, upon a bond for securing £2500 for the benefit of the Defendant and her children. Stotherd's personal estate being insufficient to pay his debts, the Defendant claimed to retain the .£1674, 3s. 9d. out of the money to be produced by sale of his real estates, before the Plaintiff's demands were satisfied ; and on the cause coming on for further directions, the question was whether she had any such right of retainer. [459] Mr. Hart and Mr. Wakefield, for the Plaintiff. Although it is settled that an executor has a right to retain for his own debt, the heir has no such right. tihetelworth v. Nevile (1 T. R. 454). But admitting that the heir is entitled to retain, it would not follow that this Defendant had the same right; for she is not the heir, but the devisee ; and she takes the estate subject to the payment of debts. The reason for allowing an executor to retain is, that he cannot sue himself. But here the debt is not due to this Defendant, but to a third person ; and therefore the principle does not apply. And it appears from the case of Wilson v. KnuUey (7 East, 128) that the statute (3 W. & M. c. 14) places the heir and devisee in different situations, and under different obligations. Suppose the Plaintiff had brought an action at law against the Defendant, what plea could the latter have pleaded ? Could she have pleaded that the testator was indebted by bond to the trustee, and that she was entitled to retain the debt? She never could interpose her power of retainer against the power given by the statute (3 W. & M. c. 14). If, then, there is no retainer at law, and the heir or devisee comes into a Court of...
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