COSTEKER

v.

HORROX.

[ *533 ]

12,500l., being part of the effects which would have been computed in the before-mentioned stock or balance-sheet, for which they had given security to him and to Samuel Woodcock as his trustee, thereby further willed, ordered, and directed that the said Samuel Woodcock should specially stand possessed of such security, and the money thereby secured, together with interest thereon, after the rate of 51. per cent., upon the trusts and purposes mentioned in his said will concerning the same. And the testator further directed, that when and as such instalments should be received by his said wife, and the said Samuel Woodcock, or his executors or administrators, the same should be placed out at interest on good Government or mortgage security or securities, in the names of the said James Horrox, Richard Horrox, and Samuel Woodcock. And the testator thereby also gave and bequeathed unto the said James Horrox, Richard Horrox, and Samuel Woodcock two policies of insurance, which he had effected upon his own life, to the amount of 7,000l., upon trust to receive and place the same out at interest, upon such security or securities as in the will mentioned, and to stand possessed thereof upon the trusts thereinafter mentioned. And the testator thereby gave, devised, and bequeathed all and singular his freehold and leasehold estate, and all the rest, residue, and remainder of his real and personal estate and effects, unto the said James Horrox, Richard Horrox, and Samuel Woodcock, their heirs, executors, administrators, and assigns, according to the several natures and qualities thereof respectively, upon certain trusts for the benefit of his children, James Horrox, Richard Horrox, Elizabeth the wife of John Anderton, and Sarah Horrox, and their issue, in four parts; the life-interest of Elizabeth Anderton and Sarah Horrox being settled to their separate use, and the reversionary interest in Sarah Horrox's share being subject to her separate power of appointment. And the testator further declared, that in case the said James Horrox, Richard Horrox, and John Anderton, or such other person or persons as might at the time be engaged in partnership with them, should have occasion for the said sum of 7,000l. for which the said insurances had been effected, or any part thereof; and if they should be of opinion, that they could employ the same beneficially in extending their business, or carrying on the same to advantage, then the said testator thereby authorized and empowered them, with the concurrence of his said wife, if she should be then living, and his widow, and if she should be then dead, then of their own proper authority, to use and

employ the same, or so much thereof as they should require for that purpose, upon their giving such security for the same, by warrant of attorney, to the said testator's said wife and to the said Samuel Woodcock jointly, or, if she should be dead, then to the said Samuel Woodcock alone, payable by such instalments, with such rate of interest, and in such way and manner, and to be applied for the same purposes as were therein before expressed respecting the bulk of his real and personal estates. And the testator appointed James Horrox and Richard Horrox the executors of his will.

The testator died on the 11th, and his wife on the 22nd of August, 1833. James Horrox proved the will and paid the testator's debts and funeral expenses.

In February, 1836, the testator's daughter, Sarah Horrox, married John Costeker, upon which occasion part only of Mrs. Costeker's separate property under the will of her father was settled upon her husband.

The bill was filed in February, 1838, by Mrs. Costeker, *against James and Richard Horrox, John Anderton and his wife, Samuel Woodcock, John Costeker, and other parties, charging that the sum of 12,500l. secured by the warrant of attorney was the ascertained balance due from the partnership to Squire Horrox at the time of his retirement, but that the defendants, James and Richard Horrox, and Woodcock, though they had entered into possession of the trust property under the will, had not paid or secured that sum to the parties entitled to it; that Woodcock had declined to sue on the warrant of attorney, and had otherwise refused to act in the trusts; that the defendants, James and Richard Horrox, and Anderton, had neglected to take the accounts and valuation of the testator's estate directed by the will, and that they had applied the produce of the policies of insurance, partly in discharge of a mortgage due from the partnership, and partly in carrying on the trade, without giving any security for the same to the testator's wife or Woodcock, as directed by the will.

The bill prayed that the will might be established; that the usual accounts might be taken of the testator's debts and assets; that the sum of 12,500l. secured by the warrant of attorney might be paid into Court; and for a receiver, and an injunction to restrain the collecting of the outstanding personal estate of the testator.

The defendants, James and Richard Horrox, by their answer,

stated, that although Squire Horrox retired from the partnership in March, 1832, no statement or settlement of accounts then took place; and that he continued to be interested and was always consulted as to the business of the firm. That, upon the occasion of his making his will in September, 1832, he applied to the continuing partners for some security for his interest in the concern, and that, the amount of such share not being ascertained, they agreed to give him a warrant of attorney for 12,500l. That this was accordingly done on the express understanding, that it was thereby only intended to facilitate the *making of the will, and that the warrant of attorney, though it mentioned the sum of 12,500l., was only intended to secure what should ultimately be found due to Squire Horrox; and that in fact his share, so far from amounting to that sum, was, as the defendants believed, of a much less amount by several thousands of pounds.

With respect to the application of the 7,000l. secured by the policies of assurance, the defendants made this statement: that previous to the retirement of Squire Horrox, and for some time afterwards, Messrs. Jones, Lloyd, & Co. were the bankers of the firm, and that it being necessary to close the account with that bank, and pay the balance, amounting to 9,000l., due to the bankers, that sum was discharged by monies borrowed by Squire Horrox in the following manner-namely, 4,000l. of William Kay, and the remainder of the Birmingham and Liverpool District Bank. That the money advanced by Kay was in June, 1832, secured by a mortgage made by Squire Horrox of a leasehold estate, his separate property, the policies of assurance for 7,000l., and certain other life policies, the money advanced by the Birmingham and Liverpool Bank being secured by a second mortgage of the same date of all the before-mentioned securities. That, shortly after the death of Squire Horrox, the amount due on the policies was, by an arrangement between the mortgagees and the defendants, received by the defendants as the executors of Squire Horrox, by means of a bill of exchange drawn by the agent of the Insurance Company in favour of the defendants, which bill was indorsed by the defendants to the firm of Horrox and Anderton, and by them indorsed to the Birmingham and Liverpool District Bank. That thereupon the bank advanced the sum of 4,1181. to William Kay, in discharge of the principal and interest due on his mortgage, and retained the residue in satisfaction, as far as it would extend, of the mortgage so made to them. And the defendants *stated, that in this manner,

and no otherwise, the produce of the policies was employed in carrying on the trade pursuant to the clause contained in the testator's will.

The defendants further stated, that they had set forth, in the schedule of their answer, the sums belonging to the testator which they had withdrawn from the trade, and the sums which they had expended in the trade; which latter, considering that the warrant of attorney was to a far larger amount than the money actually due to Squire Horrox's estate, they submitted they had a right to expend under the provisions of the will without giving further security. They likewise made a statement of the monies paid on account of the testator's debts, and they admitted the balance of these sums in favour of the testator's estate to amount to 9891. They alleged it to be impracticable, there having been no account then taken of the partnership effects, to take the account and valuation of the testator's estate within three calendar months, as directed by the will.

A motion was now made, that the defendants might pay the sum of 9891., and likewise the sum of 7,000l. secured by the policies, into Court; and for a receiver.

Mr. G. Richards, for the motion.

Mr. Girdlestone (with whom was Mr. Bacon) contrà.

THE LORD CHIEF BARON (1):

On the death of the testator, it became the duty of the executors to take an account of all his personal estate, and to get it in; and when it was ascertained that Woodcock and the wife were authorized to allow the defendants to take the money on the policies, on the same terms and security as in the former instance, that is, by giving a security and repaying the money by instalments-when one of them died, and the other refused to act, some special provision, in conformity with the will, ought to have been made by the defendants themselves in respect of the repayment of this money. It is true that they might turn round, as they have done here, and say that Mr. Woodcock, having refused to act in the trusts, and the wife having died, they were not to be deprived of the use of this money, as given them by the will; but it does not appear that they have given any security beyond that given to the

(1) Ex relatione Mr. Burgess.

COSTEKER

v.

HORROX.

[ 538 ]

[ 539 ]

COSTEKER

v.

HORROX.

[ *540 ]

testator at the dissolution of the partnership, to the amount of 12,500l., which they contend was sufficient to cover both. But I am of opinion, that some further security ought to have been given; for, although they had a right, under the will, to use the 7,000l. in the policy, by giving security, yet that security ought to have been given in 1833, and in *the terms of the will. It is argued for the defendants, that, though the plaintiffs state by their bill, that the value of the personal estate, due to the testator on the dissolution of the partnership, amounted to 12,500l., yet, because the defendant, by his answer, states it to have been very considerably less, the security given for 12,500l. was a security sufficient for both purposes. I am, however, of opinion, that they have applied money in a manner not sanctioned by authority under the will; and that being the case, I do not see how I can refuse the present application. The money must, therefore, be paid into Court; but I think, under the circumstances, it must be by instalments-onehalf to be paid by the first day of Michaelmas Term, and the other half by Hilary Term; and a receiver must be appointed, subject to an arrangement between the parties.

Order accordingly.

1839.

July 1.

[ 586 ]

LIGHTFOOT v. HERON.

(3 Y. & C. 586-591.)

Specific performance decreed in favour of a purchaser, though no solicitor acted for the vendor; and though the contract was executed under circumstances which might easily have led to fraud; no fraud being proved in the purchaser or his agent.

The fact that a party was considerably in liquor when he entered into an agreement is no reason for the Court refusing a decree for specific performance, if there was no fraud.

ONE Heron, who owned and kept a public-house at Cockfield, was desirous, in 1836, of selling that property, and the plaintiff, amongst other persons, wishing to become the purchaser, went over to Cockfield in November of that year, and attempted to make a bargain with Heron. They however differed about the price, Heron wanting three hundred guineas, and the plaintiff offering only as many pounds; and no agreement was then made. Afterwards, however, the plaintiff sent Calvert, an attorney, to Cockfield, with instructions to buy the premises at Heron's price if he could do no better. Accordingly, on the 6th of December, Calvert went to Cockfield and put up at Heron's house. After some haggling,