Twyford v Trail
| Jurisdiction | England & Wales |
| Judgment Date | 20 August 1834 |
| Date | 20 August 1834 |
| Court | High Court of Chancery |
English Reports Citation: 58 E.R. 771
HIGH COURT OF CHANCERY
See In the Goods of Gaynor, 1869, L. R. 1 P. & D. 726. For subsequent proceedings, see 3 My. & Cr. 645; 40 E. R. 1075.
Representation. Breach of Trust. Partners.
[92] twyford v. trail. July 15, 16, 18, August 7, 20, 1834. See In the Goods of Gaynor, 1869, L. R. 1 P. & D. 726. For subsequent proceedings, see 3 My. & Or. 645 40 E. R. 1075.] Representation. Breach of Trust. Partners. A. died in India. B., one of his executors, proved his will in India. B. died, and C., his executor, proved his will in England. C. is not the personal representative of A. A., a partner in a house of agency in India, died, having by his will directed his estate to be called in, and invested ou certain trusts, and appointed two of his co-partners his executors. They, however, suffered his share in the partnership to remain in the house. After A.'s death B. and C. were admitted as partners, and they knew that A.'s share waa remaining in the house, and that it was subject to the trusts of his will. They afterwards retired, and other partners were admitted. "The house ultimately failed. Held, that B. and C. were not responsible for the 'breach of trust committed by their co-partners, the executors. By an indenture, dated the 1st of May 1809, John Palmer, William Logan, Patrick Maitland, George Augustus Simpson and William Hall agreed to become partners, as agents or factors, at Calcutta, for three years from the date of the deed, under the .style or firm of Palmer & Co.; and it was agreed that the profits of the partnership should be divided into 24 parts, and that George Augustus Simpson should be entitled to five of such parts, and that the remainder should be divided amongst the other partners as therein mentioned ; and it was also agreed that the accounts of the partnership should be made out on the 1st of May in every year; and that, if any of the partners should die before the end of the partnership term, the survivors should, in full of his share of the capital, stock, and profits of the partnership, pay to his executors, within six months after the accounts of the year in which he should die .should have been made up, so much money as would have been due to the deceased if he had been living at the last settlement of accounts. [93] Not long after the formation of the partnership William Logan died, and, 772 TWYFOED V. TRAIL 7 SIM. M. after his death, the surviving partners, under a proviso for that purpose contained in the deed, carried on the business, under the firm of Palmer & Co., upon the same terms as before. In March 1811 George Augustus Simpson died, leaving his wife (who afterwards married John Maitland), and three children, the eldest of whom was only five years old, him surviving. George Augustus Simpson, by his will, appointed Patrick Maitland, William Hall, and his brother, James Archibald Simpson, his executors ; and he gave to them all his personal property, in trust, as soon as conveniently might be after his decease, to convert the same into money and invest it, either in Government securities in India, or in the public funds in England, and to pay 800 a year to his wife, during the minority of his children, and, on their attaining 21, to divide his property, in certain proportions, between his wife and children. In March 1811 William Hall and James Archibald Simpson proved George Augustus Simpson's will in Calcutta. Shortly after George Augustus Simpson's death his widow and children returned to England ; and the widow opened an account with the house of Cockerell, Trail & Co. of London, as her bankers ; and Trail, who was connected with her by marriage, acted as her friend or agent in respect of her late husband's property irv India. The house of Cockerell & Co. were also the agents, consignees and correspondents of Palmer & Co. After George Augustus Simpson's death the business of the Calcutta house was carried on as before by the surviving partners; and, by an account made out by them on the 1st of May 1811, it appeared that a balance of [94] 280,526 rupees was due to the estate of George Augustus Simpson, in respect of his share of the capital, stock and profits of the partnership. This balance was not paid to the executors; but they suffered it to be retained by Palmer & Co., who opened an account in their books, which was headed: "Estate of George Augustus Simpson, in account with Palmer & Co. ;" and Palmer & Co. from time to time received further sums of money on account of the estate, and from time to time sent to Cockerell & Co. accounts of the monies in their hands belonging to the estate, and made remittances to them on account of the interest of such monies: and they debited themselves with and gave credit to the estate for the sums which they received and took credit for, and debited the estate with the sums which they pair) on account of it. Soon after George Augustus Simpson's death his surviving partners signed a memorandum, by which they agreed that his executors should, from the 1st of May 1811 to the 30th of April 1812, receive three-tvveuty-fourths of the profits of the house of Palmer & Co., for the purpose of enabling them to improve the widow's income, and, generally, for the benefit of her late husband's estate as the firm might thereafter direct. In the year 1814 Patrick Maitland returned to England : and, in November of that year, he proved George Augustus Simpson's will in the Prerogative Court of Canterbury. In 1818 William Hall died, having appointed Henry Trail his executor in England, and John Palmer, Patrick Maitland, Francis Tipping [95] Hall and two other persons his executors in India ; and Francis Tipping Hall alone proved his will in India. About the year 1820 Francis Tipping Hall and John Browiirigg...
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