Reech v Kennegal
| Jurisdiction | England & Wales |
| Judgment Date | 26 October 1748 |
| Date | 26 October 1748 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 932
HIGH COURT OF CHANCERY
reech v. kennegal, October 26,1748. Executor and residuary legatee undertakes to pay a legacy not in the will; he shall be bound thereto, not personally, but out of the residue of the assets.-[Supplement, 78.] J. Kennegal, having made his will, deposited it in the hands of one of his nephews, whom he made executor and residuary legatee, with a manifest intention of reconsidering it; which he afterward does in the presence of the minister of the parish. Wm. another nephew, being then there, mentions his intending to leave him £100, which the testator allows, and desires the other (his executor) to pay it: who undertakes.it, saying there would be no occasion to alter the will for that purpose, for that he would pay it, and give his bond or note, if insisted upon. But the testator is satisfied without that, and dies the next day ; and three months after the testator's death, the executor upon an occasional conversation with strangers promises to pay. [124] Against him was the present bill brought by the executors of Wm. for that £100, upon the foot of his undertaking to pay it, and by that engagement preventing the alteration of the will by fraud ; for which was cited Thyn v. Thyn, 1 Vern. 296, and Oldham v. Litchfield, 2 Vern. 506, praying an immediate decree against the defendant personally, upon his undertaking and promise after the testator's death ; insisting also that a debt due from the testator should not be deducted out of the £100, by way of implied, satisfaction; for such implication is always liable to be rebutted by evidence, and here it appeared to be intended as a bounty, although not said so. For defendant. This is in substance desiring the court to insert a legacy, which is not in the will, on the foundation of parol evidence only. If it is a fraud indeed, it is to be relieved against; but there is none here : and so, different from Thyn v. Thyn, where there was certainly fraud by misrepresentation of the fact. But here it did not arise originally from the defendant; it amounts at most but to breach of promise, and valeat at law quantum valere potest, and not in a court of equity on the foot of fraud ; as in the case of Whitton v. Russel (on appeal from the Rolls, R. L. 1738, B. fol. 520. 1VES. SEN. 125. REECH V. KENNEGAL 933 as to which see particularly Supplement, p. 78), July 28, 1739, which was a devise of a leasehold interest to three persons...
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