The testator had in 1830 backed a bill for his son Henry. It was dishonoured, and after the testator’s death in 1832 his executors met the liability. Henry had a one-sixth interest, subject to his mother’s life interest, in the residuary trust fund. Henry mortgaged this interest and the mortgage was transferred to Willes. The issue of priority in the distribution of Henry’s share arose on the widow’s death in 1849.
Held: The executors’ right to make an adjustment to indemnify themselves took priority to the rights of the mortgagee.
Judges:
Sir John Romilly MR
Citations:
[1860] EngR 1148, (1860) 29 Beav 376, (1860) 54 ER 673
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 07 October 2022; Ref: scu.285987