Portlock v Gardner
| Jurisdiction | England & Wales |
| Judgment Date | 29 June 1842 |
| Date | 29 June 1842 |
| Court | High Court of Chancery |
English Reports Citation: 66 E.R. 1168
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 313; 6 Jur. 795.
[594] portlock v. gardner. June 22, 24, 25, 29, 1842. [S. C. 11 L. J. Ch. 313; 6 Jur. 795.] The transfer by an executor of the trade of his testator and of the premises in which it was carried on (which were of small value) to a third party, who afterwards continued the trade for his own berfefit: Held, under the circumstances, not to be necessarily a breach of trust. Where upwards of twenty years had elapsed after an executor had settled the accounts of his testator's estate with the residuary legatee, and had given up all interference in the trust, it was held that the onus was on the residuary legatee to prove that the conduct of the executor, which might have been a breach of trust, was so in fact; and tha.t the onus was not shifted by an omission that the account was settled on a misunderstanding of the rights of the parties, by which the residuary legatee was prejudiced. A Court of Equity will not after a great lapse of time (as of more than twenty years), and where no actual fraud is proved, enter into inquiries for the purpose of raising an implied trust against a Defendant, although the same lapse of time would be no bar to a claim founded upon an express trust. It being admitted by the Defendants that an account had been settled between the residuary legatee, the executor and another Defendant, upon an erroneous footing, by which the other Defendant was benefited, and the residuary legatee was prejudiced, the Court, on dismissing the bill of the residuary legatee, did so without costs. The testator, T. Portlock, by his will, in 1810, directed his household goods to be sold, and his debts paid, and, after giving several legacies, proceeded thus : " If there should be any deficiency of cash to pay the legacies, each legatee shall take a proportionate share. And in case of any overplus, I give it to Thomas Port-lock, who resides in my house, to enable him to carry on and for the use of my trade," "and furthermore, I give and bequeath unto my worthy friend Thomas Davis, schoolmaster, in trust, all my stock-in-trade, tools and implements thereto belonging, for the under-mentioned purposes, that he give the trade to my nephew Thomas Portlock and Joseph Turton, the profits of which shall be divided between them, share and share alike, so long as the said Joseph Turton shall think proper to work and continue as co-partner with the said Thomas Portlock, and no longer. And I give the said Thomas Portlock all my stock-in-trade, and implements thereto belonging, to enable them to carry on the said trade, which shall be valued ; and if the said Joseph Turton wishes to take half of the said stock and tools, he must pay to the said Thomas Portlock in money, or allow it out of his share [595] of profits, according to the said valuation; and I leave this to his discretion. The said Thomas Portlock's legacy, nevertheless, is and shall be upon condition that he behave himself in a steady, orderly and upright manner, and always abide by the direction of my friend T. Davis ; and if he does not, then it is my desire that the said T. Davis do divide all his said legacy, and all and every interest in this my last will and testament among my relations" [naming them]. " The said trade to be carried on under the firm of Thomas Portlock and Joseph Turton; and the said trade, for their joint interest, shall be conducted and managed by the said Thomas Davis, who shall collect all debts due to me at the time of my decease, to enable them to pay the said legacies." The testator appointed Davis and the Defendant, W. Gardner, executors of his will, and added therein the following direction :-" The said Thomas Davis shall, immediately 1 HARE, 596. PORTLOCK V. GARDNER 1169 after my decease, take possession of my house and premises, which are held on lease, and also my garden, for the purpose of carrying on the said trade for the said Thomas Portlock and Joseph Turton, but the garden may be sold, if necessary." The testator died in April 1810, the said Thomas Portlock, the Plaintiff, being then an infant. Davis renounced probate of the will, which was proved by Gardner alone. The testator carried on the business of a gun-barrel maker up to the time of his death, at which time some contracts which he entered into with the Board of Ordnance were uncompleted. Gardner did not act personally in the trusts of the will, but executed a power of attorney, whereby he appointed Turton to get in and manage the estate and the trade, and discharge the debts and legacies. Under this power Turton entered into possession of the premises, stock-in-[596]-trade and effects of the testator, and paid or discharged the debts and legacies. He also completed the contracts which were left unfinished at the testator's death, and carried the monies received in respect thereof to the account of the estate. Turton thenceforward continued the trade on his own account, and except the proceeds of the said unfinished contracts, it did not appear that the testator's estate received credit for any profits made after the testator's death. Turton afterwards, in partnership with another person, entered into some further contracts with the Board of Ordnance. The Plaintiff from the time of the death of the testator lived with Turton as an apprentice or workman on the same premises until after he was...
To continue reading
Request your trial
-
Attorney General, at the relation, & v Magdalen College, Oxford
...Townsend (1 Br. C. C. 551; 1 Cox, 28); Beckfonl v. Wade (17 Ves. 90); Hovenden v. Lord Annesley (2 Sch. & Lef. 639); Portlock v. Gardner (1 Hare, 594); Lackey v. Locket/ (Prec. Ch. 518); SaUceld v. Johnston (1 Macn.1& G. 242; I H. & Tvv. 329); Bromley v. Smith (1 Sim. 8); De Beauvoir v. Owe......
-
Allfrey v Allfrey
...V. ALLFEEY 619 March 1840), Gregory v. Gregory (Sir G. Cooper, 201), Rowley v. Adams (7 Beavan, -395, 548), and see Portlock v. Gardner (1 Hare, 594). the master of the rolls reserved his judgment. May 28. the master of the rolls [Lord Langdale]. This bill is filed by William Allfrey, one o......
-
Bright v Legerton
...105), and that lapse of time is as much a bar as between cestui que trust and trustee as in other cases as to laches; Partlock v. Gardner (1 Hare, 594); Phillipo v. Munnings (2 Myl. & Cr. 309). There is in this case no evidence of wilful default on the part of the trustees, and there has be......
-
Parker v Bloxam
...settled and closed. In cases of constructive trusts time does create a bar; Beckford v. Wade (17 Ves. 97; and see Portlock v. Gardner, 1 Hare, 594). That distinction is pointed out by Lord Cottenham in the case cited of Wedderburn v. Wedderburn (4 Mylne & Craig, 53). The Plaintiff and her h......