Tyson v Jackson
| Jurisdiction | England & Wales |
| Judgment Date | 22 November 1861 |
| Date | 22 November 1861 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 937
ROLLS COURT
[384] tyson v. jackson. (1) Nov. 22, 1861. An executor, in his residuary account, stated that he had retained in trust the amount of A. B.'s legacy. He afterwards paid over the residue. Held, that the executor had constituted himself a trustee for A. B., and that his remedy for recovery was not barred by the Statute of Limitations or the lapse of time. Held, also, that the legal personal representatives of the testator was not a necessary party to a suit to recover the legacy against the assets of the executor. A legatee, too poor to sue, assigned the legacy for less than it was worth to the Plaintiff, who bought it for the purpose of enforcing payment by suit. Held, that this did not amount to champerty or maintenance. John William Cornell, by his will, bequeathed to the five eldest children of his daughter Jease King, then living, the sum of 200 apiece, to be paid within six months after the death of the testator's wife Mary Cornell. And he directed that (1) dates. 1832. Death of testator. 1835. Residuary account. Nov. 1840. Interest paid to death of executor. Mar. 1860. Bill filed. E. vil.-30* 938 TYSON V. JACKSON 30 BEAV. 385. in case any of the five children'of Jesse King and William King should die before they should attain the age of twenty-one years, the legacy of him, her or them so dying should sink into the residue of his personal estate. The testator died in 1832, and his will was proved by his executor Timothy Richard Holmes. The testator's widow died in 1834. Mira Ella King, one of the five children of the testator's daughter, was entitled to one of the legacies of 200. She was an infant at the testator's death; she married Clark in 1844, and afterwards attained twenty-one in 1848. In June 1835 Mr. Holmes, the executor, signed and passed his residuary account, in which he stated that he had retained in trust, on the 23d of June 1835, the sum of 1000 for the five legatees (mentioning them), [385] out of the personal estate above mentioned. He then paid over the residue to the residuary legatee. Mr. Holmes, the executor, died in November 1840, having down to his death paid the interest on Mira Ella Clark's legacy. In 1858 Mira Ella Clark and her husband assigned their legacy of 200 to the Plaintiff, who, in March 1860, instituted this suit against the executor of Holmes, praying a declaration that Holmes was a trustee of the legacy of 200 for Mira Ella Clark, and for...
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