Philips v Philips
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 1844 |
| Date | 23 May 1844 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 388
HIGH COURT OF CHANCERY
S. C. 13 L. J. Ch. 445. See Stevens v. King [1904], 2 Ch. 33.
[281] philips v, philips. Jan. 19, 20, 26, May 6, 23, 1844. [S. C. 13 L. J. Ch. 445. See Stevens v. King [1904], 2 Ch. 33.] '. The testator gave the residue of his estate to trustees, upon trust, to divide the same amongst the several persons who were his creditors at the time he executed a certain conveyance for their benefit, their executors and administrators; such payment and provision to be made to and amongst such persons respectively, their respective executors or administrators, rateably and in proportion to the quantum or amount of the original debt or debts due from him to such person or persons respectively : and, if any person or persons claiming under such bequest should not give notice of such claim to the trustees within two years of the testator's decease, such share or shares of the residue to go to certain residuary legatees. Held, that the residue was to be divided into parts corresponding in number and proportion with the original debts. That the shares attributed to the debts of creditors who died in the lifetime of the testator did not lapse by their death. That the surviving partners were the persons to receive and give receipts for the share of the residue attributed to a joint debt, and that it was not necessary, before carrying over the shares in this suit, to inquire into the state of the accounts as between the surviving and. the representatives of the deceased partners. That a claim made by the representatives of a partner beneficially interested in a joint debt was a sufficient claim, although such partner was not the last survivor of the partners in the firm to which the debt was owing. That the share of the residue attributed to a debt, in respect of which no claim was made, belonged to the residuary legatees. That the amount of the residue, whether as exceeding or falling short of the amount of the unpaid debts, did not affect the construction of the will. Semble, that the trust must be considered as proceeding upon a mixed principle of the bounty and obligation ; and that the will must be read as, to some extent, directing payment of debts. Qucere, as to the construction of such a bequest, if the debts had all been paid in full before the date of the will. Nathaniel Philips, by his will, dated in March 1828, disposed of the residue of his estate as follows :-" I give and bequeath all my personal estate whatsoever, not 3 HARE, 282. PHILIPS V. PHILIPS 389 hereinbefore specifically disposed of, unto John Burton Philips, Nathaniel Philips, Robert Philips and Mark Philips, their heirs and -assigns, upon trust,'with all convenient speed after my decease, to convert the same into money, or such part thereof as shall not -consist -ef money-; and -I--deelare -aad~4iTect that the- said -John Burton Philips, Nathaniel Philips, Robert Philips and Mark Philips, their executors and administrators, shall stand possessed and interested of and in the monies which shall [282] arise from my said residuary personal estate, upon trust, to pay and divide the ultimate residue or surplus of the said trust monies unto and amongst the several persons who were my creditors at the time I made and executed a conveyance of my estate and effects for their general benefit, in or about the month of October 1802, their respective executors and administrators, such payment and provision to be made to and amongst such persons respectively, their respective executors or administrators, rateably and in proportion to the quantum or amount of the original debt or debts which was or were, at the time I made and executed such conveyance and assignment as aforesaid, due and owing from me to such person or persons respectively, excepting out of such calculation, payment,. and division the debt due to my late brother William Philips, or his administrators. Provided nevertheless, and I do hereby declare and direct that, if any person or persons claiming to be entitled to any share or shares of the said residuary trust monies, under and by virtue of this my will, shall not cause notice in writing of such claim to be given to the trustee or trustees for the time being of this my will, or to some or one of such trustees, within two years next after my decease, then and in such case my will is, that such last-mentioned share or shares of the said residuary trust monies shall go to and be in trust for the said John Burton Philips, Nathaniel Philips, Robert Philips and Mark Philips, in equal shares and proportions, their respective executors, administrators and assigns." And the testator declared that the acts of any one or two of the trustees for the time being should be as valid and effectual in the execution of the trusts as if all the trustees had joined or concurred in such acts ; and he recommended his trustees to consult certain persons therein named in any matter in which their advice and information might be [283] likely to prove useful or material, and he appointed the said trustees executors of his will. The testator died in America in October 1836. Robert and Mark, two of the executors, proved the will; and the bill was filed by them against John Burton and Nathaniel, the other two residuary legatees, for the administration of the estate under the direction of the Court. At the hearing in May 1838 various inquiries were ordered; and on the hearing for further directions in August 1841, and on a further hearing in December 1842, other inquiries were directed. Upon the several reports of the Master the following facts appeared :-By a deed, dated the 31st of January 1801,(1) made between the testator of the one part, and G. W. Thelluson, C. Marriott, 0. Philips, W. Cramond, James Philips and J. Hanson of the other part, reciting that the testator then was and stood justly indebted to sundry creditors in clivers sums of money which, by reason of losses and other misfortunes, he could not fully pay, and that, being willing to pay the same so far as his stock and effects would extend, he proposed and agreed to make an absolute assignment of the same unto and amongst his said creditors as thereinafter mentioned, and the testator, to the end aforesaid, thereby granted, bargained, sold, assigned and transferred unto the said parties thereto of the second part all the goods, stock-in-trade, debts, monies and effects belonging or owing to him, the testator, upon trust to sell and dispose of the same, and to retain, pay, apply and dispose as well of the monies arising from such sale or sales, as also of all the said thereby assigned debts, when and as the same [284] should be by them got in and received, to and among all the creditors of the said testator in proportion to their respective debts, so far as the same should extend, deducting,in the first place, the necessary expenses attending the execution of the trust. The debts owing by the testator (excepting that to his brother, William Philips^ and the persons to whom the same were due at the time of the execution of the fore'_ (1) This deed the Court declared to be that referred to in the will, as of the date of October 1802. 390 PHILIPS V. PHILIPS 3 HARE, 285. going deed, are stated in the following table, which shews also the persons to whom the Masterffound that the same debts were respectively due at the time of making his report:- to 1 o Amount of Debts. To whom due at the Date of the Deed. To whom due, or by whom Claims made under the Will. 1. £ s. d. 11,893 15 6 Philips, Cramond & Co. . f Sir George Philips and Robert 1 Philips the elder, as the sur-| viving partners of Thomas [ Philips & Co. 2. 1076 1 4 Thomas Philips & Co. (Sir George Philips and Robert -j Philips the elder, as afore-( said. 3. 284 15 6 Berckemeyer & Co. . Dredrick Hinrich Girdirkins, the lawful attorney of Cecilia Berckemeyer, widow, the relict of Bernhard Philipp Berckemeyer, deceased. 4. 26,517 19 5 Thelluson, Brothers & Co. /Notice of claim given by N. \ & G. Hibbert. 5. 2839 17 9 Samuel Philips & Co. [The Plaintiffs and Defen--1 dants, as executors of (_ Samuel Philips, deceased. 6. 3311 13 4 Charles Wood & Co. ,Sir George Philips and Robert Philips the elder, and -j Charles Wood and Richard Wood, as surviving part-^ ners. 7. 133412 0 Peter Neirac . /(No notice given, or claim \ made, under the will.) [285] Notices of claim were given in respect of the first six of the above debts. The fourth debt (Thelluson, Brothers & Co.) was owing to a firm or partnership composed of several members, all of whom died in the lifetime of the testator; the third debt was owing to a nominal partnership, which, in fact, consisted of a single individual who also died in the lifetime of the testator; and the other debts were owing to firms or partnerships, some of whose members were dead at the time of the death of the testator, and some of whom survived him. The claims were made by the surviving partners of the creditors, where there were any such living, and by the representatives of the deceased creditor, in respect of the third debt. It appeared, or was admitted, that some dividends had been paid in the testator's lifetime by the trustees appointed by the deed of 1801 upon the debts in respect of which the above claims were made; but it did not distinctly appear how much had been so paid, nor did it appear that such dividend, had, in any case, exceeded six shillings in the pound in the whole. The Master reported that the usualadvertisements as to debts had been published, but no general creditor of the testator had made any claim. The amount of the residue was found to be about £13,000. 3 HARE, 286. PHlLrlPS V. PHILIPS 391 The cause coming on for further directions, Mr. Roupell and Mr. Eolt, for the Plaintiffs. Mr. Eomilly and Mr. Busk, for the Defendants. Mr. Russell, Mr. Koe, Mr, James Parker, Mr. Wood, Mr. Mylne and Mr. Philips, for the different...
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