Lowe v George Peskett and Charles Peskett, Executors of Richard Peskett, Deceased
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1855 |
| Date | 28 May 1855 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 854
IN THE COURT OF COMMON PLEAS AND EXCHEQUER CHAMBER
S. C. 24 L. J. C. P. 196; 1 Jur. N. S. 1049; 3 W. R. 481.
[500] lowe v. george peskett and charles peskett, Executors of Eichard Peskett, Deceased. May 28, 1855. [S. C. 24 L. J. C. P. 196; 1 Jur. N. S. 1049; 3 W. K 481.] Testator devised a freehold house to his son A. (whom he appointed one of his executors), charged with a sum of money, payable within twelve months after his death, to be applied in payment of debts and legacies:-Held, equitable assets in the hands of the executors, though not available for distribution till the expiration of the twelve months.-A; made a promissory note, payable, on demand, to his son B., and by his will devised to B. a freehold house, charged with 2401., to be raised within a year after his death, and paid to his executors for the liquidation of debts and legacies; and he made B. and C. (another son) his executors. The two executors proved the will, and B. took possession of the house, and afterwards indorsed the note to D., who sued the executors thereon. To this action B. pleaded plene administravit; and C. pleaded (amongst other pleas, not including plene admimstravit), that the note was made payable to B. on demand, and that it was 16C.B.501. LOWE V. PESKETT 855 indorsed by B. to D. after the death of the testator, and that B. at the time of such indorsement had assets of the testator in his hands, whereby the note was satisfied. The only assets that ever came to the hands of B. consisted of the 2401. charged upon the house devised to him :-Held, that the plea was not proved; for, that the allegation that B. had assets of the testator in his hands at the time of the indorsement of the note, was a material allegation, and meant legal assets presently available ; and the 2401. was not legal, but equitable assets, and not available as assets until the expiration of the year. This was an action against the defendants as executors of Eichard Peskett, their deceased father, upon a promissory note for 971. 10s., drawn by the testator in his lifetime, payable, on demand, to Charles Peskett, and indorsed by Charles Peskett, to the plaintiff. The defendant Charles Peskett pleaded, plene administravit. The other defendant, George Peskett, pleaded, fourthly, that the note was made by the testator payable to Charles Peskett, and was indorsed by Charles to the plaintiff after the testator's death, and that Charles had assets of the testator in his hands before the indorsement by him to the plaintiff, whereby the debt was extinguished. Issue thereon. The cause was tried before Maule, J., at the first sitting in London in Easter Term last. The facts which appeared in evidence were as follows:-Eichard Peskett, the testator, by his will, devised to his son Charles a freehold house, charged with the payment of a sum of 2401. within twelve months after his, the testator's, decease, to be applied by his executors in satis-[501]-faction of debts and legacies; and he appointed his two sons, George and Charles, his executors, by whom the will was duly proved. Charles Peskett took possession of the house; but there was no proof that any part of the 2401. had been paid by him. The promissory note, which was assumed to have been given for value, was indorsed by Charles Peskett to the plaintiff after the testator's death. On the part of the defendant George Peskett,-it was insisted that the 2401. charged upon the house devised to the testator's son Charles, was assets in the hands of the executors, although the twelve months had not elapsed, and that, even if it were not so, the fact of Charles, the creditor, being appointed executor (and acting) operated as an extinguishment of the debt, and consequently that he, the defendant George Peskett, was entitled to a verdict on the fourth issue. A verdict was found for the plaintiff, and leave was reserved to the defendant George Peskett to move to enter a verdict for him on the fourth issue, if the court should be of opinion that there was evidence which ought to have been left to the jury, in support of the fourth plea. Collier, in Easter Term last, accordingly obtained a rule nisi to enter a verdict for the defendant George Peskett on the fourth issue, on the grounds,-first, that the learned judge ought to have directed the jury that there was evidence of the executor Charles Peskett having assets,-secondly, that the allegation of his having assets was surplusage, and that enough remained to constitute a defence, inasmuch as a man cannot sue himself, and, the cause of action being extinguished and at an end, it was not competent to Charles to transfer it to the plaintiff. He referred to Williams on Executors, 4th edit. p. 1129. [Jervis, C. J. The charge of the 2401. on the property [502] devised to Charles had not attached at the time of the indorsement of the note.] No. But Charles had the value of the 2401.; he had taken possession of the house. [Jervis, C. J. If there had been nothing in the will postponing the time for payment of the 2401., no doubt it would have been assets in the hands of the executors immediately upon Charles's entering. But, as the matter stands, the question is whether it becomes assets until the end of the twelve months.] It is submitted that it would be assets in the hands of Charles from the moment of the testator's death. Having taken possession of the subject of the devise, the debt upon the promissory note was in law extinguished. [Williams, J. Suppose, instead of a promissory note, it had been a bond, of which Charles was the obligee, could he immediately after the death of the testator have sued the heir 1] In that case, the same person would not have been both plaintiff and defendant. [Jervis, C. J. You must say he could not, because he had the money's worth in his hands at the time.] Rejecting as surplusage the allegation in the plea that Charles had assets in his hands at the time of the 856 LOWE V. PESKETT 16 C. B. 503. indorsement of the note to the plaintiff, enough remains to make the plea a good defence. The cause of action was at an end, and could not be transferred. Lush and J. Brown now shewed cause. The rule was moved upon two grounds, -first, that there was evidence of the executor Charles Peskett having...
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