Vickers v Bell
| Jurisdiction | England & Wales |
| Judgment Date | 01 March 1864 |
| Date | 01 March 1864 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 924
BEFORE THE LORDS JUSTICES.
S. C. 9 L. T. 600; 10 L. T. 77; 3 N. R. 624; 10 Jur. (N. S.), 376; 12 W. R. 589. Followed, Rayner v. Koehler, 1872, L. R. 14 Eq. 266. See Coote v. Whittington, 1873, L. R. 16 Eq. 544. Followed, In re Lovett, 1876, 3 Ch. D. 204.
[274] vickers v. bell. Before the Lords Justices. Feb. 29, March I, 1864. [S. C. 9 L. T. 600; 10 L. T. 77 ; 3 N. E. 624; 10 Jur. (N. S.), 376 ; 12 W. R. 589. Followed, Rayner v. Koehler, 1872, L. R. 14 Eq. 266. See Coote v. IVTiittington, 1873, L. R. 16 Eq. 544. Followed, In re Lovett, 187G, 3 Ch. D. 204.] An executor who has not proved his testator's will may be made a party to a suit, provided he has acted as executor, and it is not necessary, in order to maintain the bill against him, to prove that he has actually received money in the character of an executor. Circumstances under which a person named as an executor in a will was held to have so acted as to render himself liable to account as an executor and pay costs as having joined in a vexatious defence. This was an appeal by the Defendant Robert Smith from so much of a decree of Vice-Chancellor Stuart in a suit, instituted by a creditor, for the administration of the estate of Captain Charles William Bell, the testator in the cause, as in directing the usual accounts, and ordering the Defendants to pay the costs up to the hearing, included the Appellant in the scope of the order. The debt of the Plaintiff, who was a solicitor, was upon a guarantee for costs signed by the testator on behalf of his son-in-law, the Rev. Charles Edmund Fewtrell Wylde, whose affairs were involved in litigation. The Defendants in the suit were the testator's widow Elizabeth Bell, his daughter Cecilia Fewtrell Wylde, the widow of the Rev. Charles Edmund Fewtrell Wylde, who had died, and the Appellant; these three persons having been, by the joint effect of the testator's will and codicil, made respectively in 1852 and 1856, appointed, with the Rev. William Brown, trustees and executors thereof. The will and codicil were proved on the 6th of April 1857, the testator having 4DEO.J. &S.37B. VICKERS V. BELL 925 died in the preceding month, by the Defendants Elizabeth Bell and Cecilia Fewtrell Wylde alone, power being reserved to make a grant of probate to William Brown and the Appellant also when they should apply for it (the Act 20 & 21 Viet. c. 77 (of which see a. 79), did not come into operation till January 1858. [275] The bill, which was filed on the 1st of January 1861, charged that the Appellant had since acted as an executor and as a trustee in the execution of the trusts of the testator's will, and had, by letter written to the Plaintiff's solicitor, admitted that fact; but that William Brown had in no way acted, and sought simply the usual accounts but as against all the Defendants. The Defendants Elizabeth Bell and Cecilia Fewtrell Wylde and the Appellant weru represented by the same solicitor in the suit, but nevertheless severed in their defence, and put in separate answers. The answer of the .Respondents Elizabeth Bell and Cecilia Fewtrell Wylde set up as a defence and at considerable length the invalidity of the guarantee on which the Plaintiff claimed against the testator's estate, arid adverted to the fact that on the 12th of March 1861 they had filed a cross-bill against the Plaintiff in this suit as Defendant to impeach it. They also, to the best of their respective belief, denied that the Appellant had, since the grant of probate in April 1857, acted as executor of the testator or as trustee in the execution of the trusts of his will, or that he had, by letter written to the Plaintiffs solicitor, admitted the fact, or that William Brown had renounced probate or disclaimed. They further stated that, speaking to the best of their respective belief, neither William Brown nor the Appellant had in any manner acted as the testator's executor or in the execution of the trusts of his will, and that they believed that they the answering Defendants had become and were then the sole legal personal representatives of the testator. The Appellant, by his...
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