Thomas v Montgomery
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1829 |
| Date | 01 January 1829 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 279
HIGH COURT OF CHANCERY
[729] thomah v. montgomery. Dec. 1829; Jan., August 5, 1830. Where the existence and amount of a testator's debts are contingent, and depend upon the result of legal proceedings before a foreign tribunal, which are not likely to be speedily settled, the Court in administering his assets will not be induced by that circumstance to direct an appropriation of the fund in Court to answer pecuniary legacies, subject to such demands as creditors may eventually establish. If in a suit to administer a testator's assets, it clearly appears that a surplus will remain after discharging all his debts and liabilities, although the exact amount of the surplus cannot be ascertained for a considerable time, the Court will by anticipation direct proportional payments to be made to pecuniary legatees, as far as that can be done with safety to the creditors. Principles on which such anticipated payments are to be applied in reduction of the claims of the legatees, The late Duke of Queensberry died in the month of December 1810, possessed of a very large personal estate, which consisted principally of money in the public funds. By his will he bequeathed pecuniary legacies and annuities to a great number of 280 THOMAS V. MONTGOMERY 1 RUSS. & M. 730. persons, and he gave the residue of his estate and effects to be equally divided between two of the children of the present Marchioness of Hertford. Shortly after his decease, a hill was filed by some of the pecuniary legatees against the executors, for the administration of his personal estate, and, in May 1811, a decree directing the usual accounts was pronounced in that suit. Upon going into the Master's Office it was discovered that, although the English debts of the testator, when compared with his assets, were extremely inconsiderable, and might be paid oft' without delay, yet in order to have the fund clear, so as to be distributable among the legatees, it would be necessary to await the result of certain legal proceedings then pending in the Scotch Courts. These were proceedings instituted by persons interested as remainder-men in the entailed estates of the Duke of Queensberry in Scotland, for the purpose of setting aside a great number of leases granted by the Duke in contravention, as it was alleged, of his powers under the entail; and as the tenants who had purchased, [730] and who held under the leases in question would, in case of eviction, have claims for compensation to a large amount against the Duke's personal estate, and, as the adjustment of those claims themselves could only be effected after a long course of litigation, it became obvious that the distribution of the assets among the legatees must be postponed to an indefinite, and probably a remote period. Under these circumstances, the particular legatees, in the month of June 1814, presented a petition to Lord Eldon, wherein they submitted that, in consideration of the peculiarity of the case and the magnitude of the fund in Court, the legacies and annuities ought to be set apart separately in stock, subject to the claims against the estate, so that the legatees might get their legacies and the interest tine upon them, in stock at its then price, and have the benefit of further accumulations : they therefore prayed that so much of the fund in Court as would be sufficient to answer the legacies, and interest, and arrears of annuities, might be set apart and apportioned amongst the legatees and annuitants, subject nevertheless to the claims mentioned in the Master's report, as being then depending in Scotland. Upon this petition his Lordship ordered that the Master should proceed upon the inquiries directed by the previous orders, and that the rest of the petition should stand over. Various other proceedings were afterwards had in the cause. The suits upon which the extent and validity of the debts in Scotland depended, were brought to...
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