Re Dallaway, decd
| Jurisdiction | England & Wales |
| Year | 1982 |
| Date | 1982 |
| Court | Chancery Division |
Executor and Administrator - Executor - Costs - Action by beneficiaries claiming entire estate of deceased - Executor's duty to protect estate against adverse claims - Provision for executor's costs - Court's discretion -
The deceased, by his will dated March 4, 1975, left his entire estate equally between his ten brothers and sisters, apart from a legacy to the wife of one of the brothers. About two or three years before the deceased's death on December 29, 1978, that brother and his wife went to live with the deceased at his farm and continued to live there after his death. They claimed that in 1975 or 1976 the deceased orally agreed to leave them his entire estate including the farm (valued for probate at £28,000) and on November 6, 1979 they issued a writ against the plaintiff bank, the sole executor, to enforce that claim. The nine other brothers and sisters wanted the claim to be resisted and the executor accordingly issued a summons for directions as to whether it should continue to defend in the action and to counterclaim for possession of the farm. The other brothers and sisters and the two claimants were all made defendants to the summons.
On the question how the costs of the action should be borne if the court directed the executor to continue the defence and to counterclaim: —
Held, that in view of the duty of executors to protect a deceased's estate against all adverse claims and the provision in R.S.C., Ord. 62, r. 6 (2) entitling trustees and executors to costs out of the fund held by them in so far as not recoverable elsewhere, there should be a direction for the executor to continue to defend the action and to counterclaim; and that the practice normally applicable to trustees' costs in unsuccessful actions would be applied so as to entitle the executor, subject to any directions of the trial judge and until further order, to be indemnified out of the estate for all the costs for which it might be liable, even though the defence to the action and the counterclaim might prove unsuccessful (post, pp. 759G, 760D–E, 761G–762A).
The following cases are referred to in the judgment:
Beddoe, In re [
Eaton, decd., In re [
Ideal Bedding Co. Ltd. v. Holland [
Kay's Settlement, In re [
Merry v. Pownall [
Moritz, decd., In re [
Turner, In re [
The following additional cases, supplied by courtesy of counsel, were cited in argument:
Bullock v. Lloyds Bank Ltd. [
Coverdale v. Eastwood (
Dent, In re, Ex parte The Trustee [
Foster v. Royal Trust Co. [
Holden, In re, Ex parte official Receiver (
Wakeham v. Mackenzie [
ORIGINATING SUMMONS
By his will dated March 4, 1975, the testator, Charles Thomas Dallaway. left his entire estate, including his farm of 30 acres, equally between his ten brothers and sisters, apart from a legacy to the wife of one of the brothers. The testator died on December 29, 1978, having by his will appointed the plaintiff, Lloyds Bank Ltd., his sole executor. On November 6, 1979, one of the brothers and his wife (who had been left the legacy) brought an action against the estate claiming that in 1975 or 1976 the deceased had orally agreed to leave his entire estate to them. The other brothers and the sisters wanted the executor to resist that claim. Accordingly, by summons dated March 6, 1981, the plaintiff, applied (1) for directions as to whether it should continue to defend and to counterclaim in the action and (2) for an order that the costs of the application be paid by the two claimants. The nine other brothers and sisters were made defendants to the summons. The claimants in the action became the tenth and eleventh defendants to the summons.
The hearing of the plaintiff's application was in chambers, judgment being delivered in open court. The facts are stated in the judgment.
R. J. Simpkiss for the plaintiff.
Malcolm Waters for the first nine defendants.
J. H. Weeks for the tenth and eleventh defendants.
December 17. SIR ROBERT MEGARRY V.-C. read the following judgment. This case raises an unusual point under In re Beddoe [
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