Major v Aukland
| Jurisdiction | England & Wales |
| Judgment Date | 07 November 1843 |
| Date | 07 November 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 303
HIGH COURT OF CHANCERY
S. C. 8 Jur. 16.
[77] major v. aukland. July 18, 19, 31, Nov. 3, 7, 1843. [S. C. 8 Jur. 16.] An insolvent debtor cannot, on the mere allegation that the assignee in the insolvency colludes with a debtor to the estate, and refuses to sue, sustain a suit for a legacy which passed by the assignment of his estate and effects under the insolvency; although charging that the legacy, if recovered, will afford a balance after satisfying all his debts; and praying that the legacy may be paid either to the assignee or to himself; nor can the suit be sustained, even if the provisional assignee appear, and submit to be bound by the decree ; for the provisional assignee cannot empower another party to sue for the insolvent's estate, except by allowing such other party to sue in his (the assignee's) name. Whether, if the alleged collusion or refusal to sue were proved, the insolvent could sustain such a suit,-qwxre ? W. Major, by his will, dated in 1808, bequeathed the residue of his personal estate to trustees, upon trust for his wife for her life or widowhood, with remainder, 304 MAJOR V. AUKLAND 3 HARE, 78. as to certain parts thereof, for his son William, and as to other parts, after the death of his son John without issue, for his daughter Mary, and he bequeathed the residue in equal third parts to his said children, William, John and Mary, The testator died in 1810, and his widow, the tenant for life, died in 1826. John, the son, being in prison for debt in the year 1829, presented his petition to the Court for the Relief of Insolvent Debtors, and having executed the usual assignment of his estate and effects to Samuel Sturgis, the provisional assignee, obtained his discharge in January 1830. No creditor's assignee was ever chosen. John, the son, died in 1833, leaving a widow and five children. The Plaintiff, his widow and administratrix, filed her bill in 1843, against the executor of the survivor of the executors and trustees appointed by W. Major, the other parties interested under his will, and S. Sturgis, the provisional assignee, claiming interests under the will of the testator, W. Major, partly by the express gift and partly by implication, and stating that all the share and interest of John in such part of the testator's estate as remained undisposed of was vested in S. Sturgis, the provisional assignee; that the debts of John, the deceased insolvent, were much less than the sums of stock thereinbefore claimed to be due in respect of the testator's estate; and that if the Court should be of opinion that the specific [78] sums claimed properly belonged to the estate of the deceased insolvent, there would be a considerable balance coming to the Plaintiff, as his administratrix, after payment of all his debts. The bill also stated that the Plaintiff had frequently by herself and her agents applied to S. Sturgis as such provisional assignee, and requested him to institute a suit for the purpose of establishing the right of the deceased insolvent to the said sums of stock, and to one-third of the residue of the testator's estate (if any) remaining undisposed of, but S. Sturgis had refused so to do; and that under these circumstances, the Plaintiff was advised and submitted that she was entitled to institute this suit as such administratrix: that the Defendant, the executor, also refused to pay or transfer the said sums of stock and the said residue to S. Sturgis or to the Plaintiff. The bill prayed that the estate of the testator, W. Major, might be administered and divided amongst the persons entitled thereto, and the said sums of stock declared to belong to the estate of John, the insolvent, and paid or transferred to the Defendant, S. Sturgis, as provisional assignee, or to the Plaintiff as administratrix. The Defendant, the executor, by his answer, after stating various matters in fact and in law by way of defence, said that all the real and personal estate of John, the son, comprised in the said conveyance and assignment, was then and at the time of the institution of the suit, vested in the provisional assignee ; and that therefore even if all the allegations in the bill were true, the Plaintiff had no right to maintain the suit; and the Defendant claimed the same benefit of the objection thereto as if he had pleaded the insolvency and assignment. [79] The provisional assignee was served with the copy of the bill only. The cause coming on to be heard, and the objection of the insolvency being taken, July 19. the vice-chancellor said that, as the suit was constituted, it would not be possible to make any decree for payment of the legacies to the Plaintiff, the Court not knowing whether the provisional assignee repudiated or adopted the proceeding, or what course he might deem to be for the benefit of the creditors of the insolvent to take. The Plaintiff asked that the case might stand over to afford an opportunity for the provisional assignee to appear. July 31. Mr. Follett appeared for the Defendant, the provisional assignee, who did not admit that he had refused to institute a suit: he said that the interest of the insolvent under the will in question had not been inserted in his schedule: that he could not disclaim such interest, but he would submit that his rights therein should be bound by any decree the Court might make in this suit. Nov. 3. Mr. Willcock and Mr. Craig, for the Defendants, the executor and others, objected that it appeared the title of the Plaintiff to the legacy in question (if any) had accrued prior to his insolvency, and that his interest in it had, therefore, passed 3HAEE, 80. MA JOB V. AUKLAND 305 to the provisional assignee by virtue of the assignment. The allegation of refusal by the assignee to sue did not enable the Plaintiff to sustain the suit, although, if the fact were proved before the Insolvent Court, it might, perhaps, be a ground for the exercise of the jurisdiction of that Court over the assignee to the extent of compelling him to allow ^he [80] Plaintiff to use his name in the suit upon a proper indemnity: Spragg v. Binkes (5 Ves. 583), Hammond v. Attwood (3 Madd. 158), Sazton v. Davis (18 Ves. 72). The relation of an insolvent debtor to his assignee is very different from the relation of a party beneficially interested in the estate of a deceased person to the personal representative. If the personal representative will not proceed against a debtor to the estate the cestui que trust has no alternative but that of coming to this Court; but there is a Court of competent, and for many purposes exclusive, jurisdiction, to which the insolvent debtor may, in a parallel case, resort: Kaye v. Fosbrooke (8 Sim. 28), Bemfield v. Solomons (9 Ves. 77). Mr. Teed and Mr. Faber, for the Plaintiff, submitted that, as representing the insolvent debtor, she might sustain a suit in this Court in respect of matters in which the assignee either improperly dealt with the estate (Borell v. Damn (2 Hare, 440)) or colluded with the debtors to the estate : Lautour v. Holcombe (8 Sim. 76), Sarion v. Jayne (7 Sim. 24). The allegation that the assignee had declined to sue for the legacy due to the insolvent was supported by the apparent fact that fourteen years had elapsed since the insolvency; and in G-edge v. Traill (1 Euss. & Myl. 281, n.) Sir J. Leach held that the consenting to the retention of assets by a stranger was collusion on the part of the person on whom the duty of collecting them devolved. The facts, therefore, amounting to what the Court deems to be collusion, are sufficient to sustain the suit, at least until those facts shall be disproved : Bowser v. Hughes (1 Anstr. 101). They [81] mentioned also two unreported eases: Byne v. lackburn,(l) and Kirlew v. Rayner.() the ViCE-CHANCELLOE [Sir James Wigram]. The Plaintiff in this case is the personal representative of a legatee under the will of W. Major, the testator in the cause. The legatee took the benefit of the Insolvent Debtors Act, and executed the usual conveyance and assignment to the provisional assignee. The bill is filed to enforce payment of the legacy, not to the Plaintiff, but to the provisional assignee. The principal Defendants are Aukland, the personal representative of the testator, and Sturgis, the provisional assignee. The bill suggests that the Plaintiff has frequently applied to Sturgis, and requested him to institute a suit in equity to establish the right of John Major to the property in question; that Sturgis has refused; and that, under these circumstances, the Plaintiff claims the right to institute the present suit for that purpose. The De-[82]-fendant...
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