1

Re Skinner (deceased)

COMPANY; Sale of business: TRUSTS: SUCCESSION;

Administration of Estates
PROBATE, DIVORCE AND ADMIRALTY DIVISION
SACHS J
31 JULY 1958

Company – Scheme of arrangement – Transfer of business of acting as

personal representative – Probate action pending at date of transfer –
Validity of provisions of scheme in relation to probate action – Whether
transferor company should continue as plaintiff in probate action –
Companies Act, 1948 (11 & 12 Geo 6 c 38), s 206, s 208.
Executor and Administrator – Office of personal representative – Company
named as executor in will appointed administrator pending suit in probate
action – Scheme of amalgamation of company with a bank – Transfer by
company of its business of acting as personal representative to bank –
Whether transferor company can continue as plaintiff in probate action.
Trust and Trustee – Trust corporation – Share capital of trust corporation
acquired by another company on amalgamation – Transfer of business of
acting as personal representative – Whether corporation continues to be a
trust corporation within the definition in Supreme Court of Judicature
(Consolidation) Act, 1925 (15 & 16 Geo 5 c 49), s 175(1) – Public Trustee
Rules, 1912 (SR & O 1912 No 348), r 30(1), as substituted by SR & O 1926
No 1423.

Grindlays Bank Ltd, who were appointed executors under two wills of a
testator who died in April, 1954, brought a probate action to prove one will
in solemn form. On 18 April 1956, Grindlays were appointed administrators
pending suit. Before that date they had so acted in the estate as to disentitle
them to renounce their executorship under the will, if it were proved. On 8
July 1957, an order was made in the Chancery Division (Companies Court)
under the Companies Act, 1948, s 206 and s 208, sanctioning a scheme of
arrangement and amalgamation between Grindlays and the National Bank of
India, Ltd; by that scheme all assets (including the business of acting as
personal representative) and liabilities of Grindlays were transferred to the
latter bank (herein called “National”) as from the transfer date (31 December
1957), save for property vested in Grindlays as “the personal representative
of a deceased person”. The scheme further provided by cl 7(1), that, after
the transfer date, Grindlays would not take out any grant of representation to
2

the estate of any deceased person; and, by cl 7(2), that, from the transfer date
until the date of dissolution of Grindlays, Grindlays would perform their
duties as the personal representatives of any deceased person whose personal
representatives they were at the transfer date. On 7 November 1957, the
registrar of companies made an order under s 208 providing that all
proceedings pending by or against Grindlays on 1 January 1958, other than
those to which Grindlays were a party as the personal representative of any
deceased person, should be continued by or against National. Grindlays now
applied for directions in the probate action (i) whether Grindlays should
continue as plaintiffs or National should be substituted and (ii) whether
either could or should act as personal representatives of the deceased. The
whole share capital of Grindlays having become vested in National the
further question arose whether Grindlays remained a trust corporation within
the definition in s 175 of the Supreme Court of Judicature (Consolidation)
Act, 1925, which included a corporation authorised by rules under the Public
Trustee Act, 1906, s 4(3), to act as custodian trustee. By the Public Trustee
Rules, 1912, r 30(1) (as substituted in 1926), a corporation in order to be
authorised must be one “having a capital … for the time being issued of not
less than £250,000, of which not less than £100,000 shall have been paid up
in cash.”

Held –

Grindlays should continue to act as plaintiffs in the probate action and

could act as personal representatives of the deceased, if probate or letters
of administration were granted to them, for the following reasons—

(i)

if, on a proper construction of the scheme of amalgamation, some

provision of it prohibited the doing of an act which, in the absence of the
scheme a party thereto could be compelled to do or could not bind itself to
refrain from doing, that provision was a nullity (see p 276, letter i, post).
Nokes v Doncaster Amalgamated Collieries Ltd ([1940] 3 All ER 549) and
Re “L” Hotel Co Ltd & Langham Hotel Co Ltd ([1946] 1 All ER 319)
applied.
3

(ii)

accordingly (a) even if the order of 7 November 1957, ordered that the
probate action should be continued by National (which was a construction
of the order contrary to the court’s view) such a provision of the order
would be void and (b) if cl 7(1) of the scheme purported to prohibit
Grindlays from taking out representation to the deceased’s estate the
prohibition would be of no effect, for both these provisions would prohibit
something that Grindlays could be compelled to do or could not, under the
general law, bind themselves to refrain from doing.

(iii)

Grindlays remained a trust corporation within s 175 of the Supreme Court

of Judicature (Consolidation) Act, 1925, since they still remained a legal
entity and had an issued capital that complied with r 30(1) of the Public
Trustee Rules, 1912, as substituted in 1926.

Notes
As to acts of executor before probate, see 16 Halsbury’s Laws (3rd Edn)
133, para 201, note (i); and for cases on the subject, see 23 Digest (Repl)
52–56, 404–450.
As to non-assignability of office of executor, see 16 Halsbury’s Laws (3rd
Edn) 142, para 223, note (u); and for cases on the subject, see i3 Digest
(Repl) 43, 302.
As to transfer of property or liabilities on amalgamation of companies, see 6
Halsbury’s Laws (3rd Edn) 773, para 1559, notes (a)(b); and for cases on the
subject, see 10 Digest (Repl) 1136, 1137, 7911, 7912.
For the Companies Act, 1948, s 206, s 208, see 3 Halsbury’s Statutes (2nd
Edn) 624, 627.
For the Supreme Court of Judicature (Consolidation) Act, 1925, s 163(1), s
175, see 9 Halsbury’s Statutes (2nd Edn) 779, 787; and for the
Administration of Estates Act, 1925, s 9, see ibid, 727.
For the Public Trustee Rules, 1912, r 30, as amended, see 22 Halsbury’s
Statutory Instruments 299 and Supplement.
Cases referred to in judgment
Nokes v Doncaster Amalgamated Collieries Ltd [1940] 3 All ER 549,
[1940] AC 1014, 109 LJKB 865, 163 LT 343, 10 Digest (Repl) 1136, 7911.
Re “L” Hotel Co Ltd & Langham Hotel Co Ltd [1946] 1 All ER 319, 115
LJCh 129, 174 LT 302, 10 Digest (Repl) 1137, 7912.
4

Everitt v Everitt [1948] 2 All ER 545, 27 Digest (Repl) 593, 5547.

Probate Summons adjourned into court
In this probate action Grindlays Bank Ltd (hereinafter called “Grindlays”),
one Hedy Steiner and one Moyra Ratigan, claimed as the executors named in
the last will dated 27 March 1954, of James Richard Rennell Skinner who
died on 2 April 1954, to have that will established. The first two defendants,
Norman Kent and Enid Kent, sought by way of conterclaim to set up an
earlier will dated 8 December 1948, wherein they were named as legatees.
The third defendant, Julia Carole Skinner, the person entitled to the whole of
the deceased’s estate in the event of an intestacy (an infant appearing by her
guardian) alleged by way of counterclaim that there was an intestacy, and
alternatively sought to set up the will of 8 December 1948. In the 1948 will,
Grindlays were appointed sole executors.
On 18 April 1956, Karminski J made an order appointing Grindlays to 274
be administrators pending suit. On 8 July 1957, Roxburgh J made an order
under s 206 and s 208 of the Companies Act, 1948, sanctioning a scheme of
arrangement and amalgamation between Grindlays and National Bank of
India Ltd and on 7 November 1957, Mr Registrar Berkeley made a further
order in relation thereto under s 208. On 1 January 1958, National Bank of
India Ltd changed its name to National and Overseas Grindlays Bank Ltd
(hereinafter called “National”).
By the present summons Grindlays applied for directions as to the following
matters:

“(1) Whether Grindlays do continue to act as first plaintiff in the [probate]

action.
“(2) Whether National be substituted for Grindlays as a plaintiff in the
[probate] action.
“(3) Whether if the will of Mar. 27, 1954, is proved probate or alternatively
a grant of administration of the deceased’s estate with the said will annexed
could be granted to Grindlays or to National or to some other, and if so what
persons.
“(4) Whether if the will of Dec. 8, 1948, is proved probate thereof or
alternatively a grant of administration of the deceased’s estate with the will
annexed could be granted to Grindlays or to National or to some other, and if
so, what persons … ”

D Tolstoy for Grindlays.

A R Ellis for the first two defendants, Norman Kent and Enid Kent.
R L Bayne-Powell for the third defendant.
5

O R Smith for National.

Cur adv vult
31 July 1958. The following judgment was delivered.
SACHS J. This is a summons is an action commenced in August, 1955, by
Grindlays Bank Ltd and two other plaintiffs, by which they seek to
propound a will of the testator of March, 1954—“the 1954 will.” In that will
they and their two co-plaintiffs are named as executors. All three defendants
contest the will. The first two seek to establish a will of December, 1948
(“the 1948 will”), of which Grindlays are the sole executor. The third
defendant alleges an intestacy. On 18 April 1956, Grindlays were appointed
administrator pending suit, and on 4 April 1957, the pleadings were closed
by a reply and defence to counterclaims delivered on that date.
By an order of 8 July 1957, sanction was given by Roxburgh J to a scheme
of arrangement and amalgamation under s 206 and s 208 of the Companies
Act, 1948, in the course of proceedings between Grindlays Bank, Ltd
—“Grindlays“—the members of Grindlays Bank Ltd and the National Bank
of India Ltd—“National.” At that last named date the whole of the £500,000
paid up capital of Grindlays was beneficially owned by National and the
scheme transferred to National, subject to certain exceptions, the whole of
Grindlays’ assets and liabilities as from 31 December 1957, which was
called the transfer date. Grindlays, to whom National gave certain very full
indemnities, continue their existence but will at some future date be
dissolved without being wound up. The date in question will be one after
they have ceased to hold any property either as the trustee of any instrument
or as the personal representative of any deceased person.
On 7 November 1957, an order in furtherance of the above scheme was
made by Mr Registrar Berkeley, and one of its provisions, to the terms of
which I will later refer, related to proceedings then pending by or against
Grindlays.
The purpose of the present summons is to determine what is the position of
Grindlays and National respectively in relation to the present proceedings.
In particular, having regard to the terms of the scheme and of the order of 7
November decisions are sought, first, whether either of them can or should
continue the 275 present action; secondly, whether either of them can or
should act as personal representative of the deceased if either the 1954 or the
1948 will is proved. The answers to the questions put to the court depend
partly on the view taken of the general law as to the position of executors
and the effect of s 206 and s 208 of the Companies Act, 1948, and partly on
the construction of the particular scheme in this case. A wide range of
points has been helpfully discussed by counsel in argument on the basis of
6

alternative views as to the general law, but I do not propose to deal with any
of them except those which arise on the footing that the position is as below
stated.
First, it has been axiomatic since before the days of Blackstone’s
Commentaries that at common law there can be no assignment of the office
of executor as it is an office of personal trust. Leaving out of consideration
certain specific statutory provisions (such as those of the Public Trustee Act,
1906a), which do not apply to the present circumstances, it follows that the
rights, powers and duties of an executor cannot be assigned by him; nor can
an executor properly assign property he holds by virtue of his office, save in
the course of carrying out his duties under that office. It is to be noted that
not only is the office of executor one of personal trust but that third parties
(such as those who may take under the will) have an interest in seeing that
no such assignment by an executor takes place.
________________________________________
a See Public Trustee Act, 1906, ss 5, 6, 15 (26 Halsbury’s Statutes, 2nd
Edn 36–38, 45): see also s 1(2) of the Judicial Trustees Act, 1896 (26
Halsbury’s Statutes, 2nd Edn 24)
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Secondly, it has during the hearing of this summons become common
ground that already before 18 April 1956, when they were appointed as
administrators pending suit, Grindlays had so acted as executors as to
disentitle them to renounce that position under the 1954 will, and also so as
to entitle the court to compel them, if thought fit, to continue to act as
executors under that will if proved. Further, by virtue of the above order of
18 April 1956, the property of the deceased vested in Grindlays by virtue of
s 163 of the Supreme Court of Judicature (Consolidation) Act, 1925;
remained vested in them on the transfer date, that is to say, 31 December
1957; and will continue to remain vested in them unless and until some
order of this court provides otherwise. It is convenient, moreover, to note
that if either of the two wills is proved then the property will be shown to be
vested in them as personal representatives of the deceased at the date of his
death, whilst if it is found that there is an intestacy, the property will at that
date have vested in the President of this Division by virtue of s 9 of the
Administration of Estates Act, 1925. In no event can it be held to have
vested or be today vested in National.
Thirdly, it has been made clear by the speeches in Nokes v Doncaster
Amalgamated Collieries Ltd ([1940] 3 All ER 549) that schemes and orders
made by virtue of s 206 and s 208 of the Companies Act, 1948, can only
transfer such rights, powers, duties and property as are capable of being
7

lawfully transferred by a party to the scheme if no such sections of the

Companies Act existed. It is not necessary in a scheme to exclude
specifically from its operation things incapable of such transfer as general
words in the scheme and any order in furtherance therefore must be taken to
operate in a manner not repugnant to the general law of England (Re “L”
Hotel Co Ltd & Langham Hotel Co Ltd, [1946] 1 All ER 319). If, however,
on a proper construction of the terms of a scheme some part of it happens by
inadvertence expressly to order an act which, had there been no scheme, the
parties could not, either in relation to the interests of third parties or
otherwise, bind themselves to do, then that part of the scheme would, in my
view, have to be treated as a nullity in so far as it purported so to order. To
my mind, this latter principle equally applies where a scheme expressly
prohibits an act which the parties could not, under the general law of this
country, bind themselves to refrain from doing.
The general law being as above stated, I now turn to the terms of the scheme
276 and of the order of 7 November. The scheme recites that Grindlays
“carries on … the business of … acting as … personal representative.” It
transfers that business and its assets to National, but by virtue of its
definition clause excludes from that transfer “property vested in Grindlays as
… the personal representative of a deceased person”. It is accordingly clear
that no property of the deceased purports to have become vested in National
by virtue of the scheme. Next to be noted is that part of the order of 7
November which provides that

“all proceedings pending by or against the transferor company on Jan. 1,

1958, other than those to which the transferor company is a party as the
personal representative of any deceased person, be continued by or against
the transferee company.”

On a normal construction of these words the present action is not one

ordered to be continued by National. If, contrary to my view, the above
words “personal representative” had in the context of the scheme as a whole
to be construed as meaning “personal representative who had been granted
probate,” then the order would purport to cause a right or duty of Grindlays
as an executor to be carried out by some third party, would contain a
provision repugnant to the general law of this country and would to that
extent have had to be treated as of no effect. There is no other provision in
the scheme or order that can lay on National any of the rights, duties, or
powers of an executor of the deceased, and accordingly it follows that
National is neither entitled to be nor can be substituted as a plaintiff in this
8

action, nor can there be granted to National probate of the 1954 or of the
1948 will.
There remains the question whether Grindlays are entitled to and should
continue to act as plaintiffs in the action; and if so, whether probate can be
granted to them if either the 1954 or the 1948 will is proved. Any difficulty
on this point derives from the provisions of sub-clauses of cl 7 of the
scheme. The following are the portions of sub-cl (1) and sub-cl (2) that are
relevant:

“(1) After the transfer date Grindlays shall not take out or cause to be taken
out any grant of representation to the estate of any deceased person …
“(2) During the period from the transfer date to the date on which Grindlays
is dissolved, in accordance with the provisions of this scheme, Grindlays
shall duly perform (i) its duties as the personal representative of any
deceased person whose personal representative it was at the transfer date …
(iii) its duties as the trustee of any instrument of which it was the trustee at
the transfer date.”

Clause 7(1) either purports to prohibit Grindlays continuing to proceed with

this action or it does not. If it does not so prohibit Grindlays, then clearly
they can continue to proceed herein because nothing else in the scheme
prevents them from so doing. If, on the other hand, it does purport so to
prohibit them, then to that extent it purports to stop Grindlays from doing
something which the law empowers them to do, and also from performing a
duty which the court can compel them to perform and one in which third
parties are interested. Accordingly, if cl 7(1) does prohibit Grindlays from
taking out a grant of representation in the present case it is to that extent to
be disregarded and treated as of no effect, as the prohibition would be one
which cannot properly be embodied in a scheme under s 206 and s 208.
Thus, whichever I adopt of the rival interpretations of cl 7(1) put forward by
counsel for Grindlays and counsel for National respectively, whether or not
on its proper construction cl 7(1) purports to prohibit the continuance of the
present action, Grindlays in law can and indeed should continue to act as
first plaintiffs in it.
It has been submitted by counsel for National that the vital words in sub-cl
(1) on a natural construction mean exactly what they say and constitute a
relevant prohibition. Counsel for Grindlays has put forward a more intricate
argument to the contrary—an argument which included a submission that
there 277 has been an unusual use of the words “take out” in relation to
probate. For the purposes of the summons now before me it has, however,
9

been agreed by both counsel that if it is my view that on either interpretation

of cl 7(1) Grindlays are not in law effectually prohibited from continuing
with the present action, then it is not necessary for me to express a final view
on the construction of that sub-clause. Indeed, any such expression might
well be considered in the circumstances to be obiter (cf Everitt v Everitt,
[1948] 2 All ER 545 at p 549). Accordingly, I do not propose to go further
than to state that on the facts of the present case I would have found some
difficulty in escaping from the prima facie impression that the words in sub-
cl (1) have the natural and plain meaning attributed to them by counsel for
National.
The only other point which needs to be dealt with is the submission that
Grindlays have since the transfer date ceased to be a trust corporation within
the definition of those words in s 175 of the Supreme Court of Judicature
(Consolidation) Act, 1925. If they are no longer such a trust corporation,
then difficulties would arise whether and in what form probate could or
should be granted to them or their syndic or nominee in the event of one of
the wills being proved. Reference has been made to r 30 of the Public
Trustee Rules, 1912, which provides (by sub-r (1)(b)b) that such a
corporation must, inter alia, be one.
________________________________________
b As substituted by the Public Trustee (Custodian Trustee) Rules, 1926
(SR & O 1926 No 1423)
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“… having a capital (in stock or shares) for the time being issued of not less
than £250,000, of which not less than £100,000 shall have been paid up in
cash … ”

It has been submitted by counsel for National that as the whole of Grindlays’
£500,000 capital is now vested in National, and as since the transfer date all
the beneficially owned assets of Grindlays have been vested in or are held in
trust for National, the position of Grindlays is equivalent to that which
would obtain if Grindlays had returned all its capital to its shareholders. It
has further been submitted that in those circumstances Grindlays have
ceased to be a trust corporation. The Public Trustee Rules, 1912, however,
have chosen to make the qualification for a trust corporation a matter of
capital and not a matter of assets. Grindlays still exist as a legal entity, their
capital still complies with the test laid down in the Public Trustee Rules, and
in my view they thus remain a trust corporation. Accordingly, there is no
obstacle to their being granted probate as such.
10

My answers to the questionsc as set out in the summons are accordingly as

follows: (1) Yes. (2) No. (3) and (4) Probate of either will, if proved, can
be granted to Grindlays. As regards costs, National have very property
stated that they are prepared to bear all the costs of all parties to this
summons, and I make the order accordingly, to include certificates for
counsel.
________________________________________
c The questions are printed at p 275 letters b to d, ante
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Order accordingly.
Solicitors: Henry S L Polak & Co (for the first, second and third plaintiffs);
Ellis, Peirs & Co (for the first and second defendants); O L Blyth (for the
third defendant); Sanderson, Lee, Morgan, Price & Co (for National and
Overseas Grindlays Bank Ltd).
A T Hoolahan Esq Barrister.
278
[1958] 3 All ER 279
11

Ministry of Health v Simpson and Others

CIVIL PROCEDURE: SUCCESSION; Wills

HOUSE OF LORDS
LORD SIMONDS, LORD NORMAND, LORD OAKSEY, LORD
MORTON OF HENRYTON AND LORD MACDERMOTT
9, 10, 11, 12, 16, 17, 18, 19 OCTOBER, 23 NOVEMBER 1950

Mistake – Money paid under mistake – Recovery – Claim in equity –

Residue of testator’s estate paid to charitable institutions by executors –
Directions in will void for uncertainty – Rights of those entitled under
intestacy to recover from institutions sums paid.
Limitation of Action – Recovery of sum paid under invalid residuary bequest
– Action by next of kin – Limitation Act, 1939 (c 21), s 20.

By his will, dated 3 November 1919, a testator, who died on 23 March 1936,
directed his executors to apply his residuary estate “for such charitable
institution or institutions or other charitable or benevolent object or objects
in England” as they in their absolute discretion should select. On 4 June
1936, the deputy chairman of the Westminster Hospital applied to the
executors for a contribution towards the fund for the erection of new
buildings for the hospital. On 20 March 1937, a cheque for £4,000 was sent
to the treasurer of the hospital by the executors, and on 23 March 1937, the
cheque was paid into the “Westminster Hospital Re-building Fund Current
Account” at a bank which showed at the close of business on that day a
credit balance of £15,268. In 1939 certain of the testator’s next of kin
challenged the validity of the direction in the will, and on 18 October 1939,
the executors’ solicitors wrote to the Westminster Hospital informing it of
the challenge and asking that the sum paid should not be dealt with until
further communication was received from the executors, but already by that
date all moneys in the account in question had been applied in payments
relating to the erection of new hospital buildings, and the account showed a
debit balance of £9,508. In 1944 the House of Lords held that the residuary
bequest was void for uncertainty. The next of kin, who had exhausted their
remedy against the executors, did not assert any right to follow the £4,000
into assets held by the hospital, but they claimed that the hospital was under
an equitable liability to refund to the estate the money wrongfully paid.

Held –
12

(i)

even if in the Spiritual Courts (where the jurisdiction to administer the

assets of a deceased person originally lay) the right of executors to require
a legatee who was paid a legacy to give security was limited to the purpose
of providing for the contingencies of further creditors appearing or there
being a deficiency of assets to pay all legacies of equal rank pari passu,
there was no reason why the remedy given by the Court of Chancery
should be limited similarly.

(ii)

there was no basis for the view that the equitable doctrine by which an
unpaid legatee or creditor could recover from a person wrongfully paid by
executors was only available to an unpaid legatee or creditor if the estate
had been administered by the court, although it might be that where the
executors had distributed the estate under an order of the court the unpaid
person would not be required to bring a further action against them before
proceeding against persons wrongfully paid, and there was no difference
in the application of the doctrine whether the claimant beneficiary
claimed as a residuary legatee or as next of kin, or whether or not the
person paid was a “stranger” to the estate having no title to the money
paid to him.
David v Frowd (1833) (1 My & K 200), applied.

(iii)

it was irrelevant to the application of the doctrine whether the executors

paid wrongfully under a mistake of law or under a mistake of fact, and it
was no answer to its application that the defendant had received 1137 the
payment in good faith and had spent it without knowledge of any flaw in
its title.
Rogers v Ingham (1876) (3 ChD 351), and Re Robinson ([1911] 1 Ch
502), distinguished.
Dictum of Romer J in Re Mason ([1928] 1 Ch 391), criticised.

(iv)
13

the action was in respect of a claim to personal estate within the

Limitation Act, 1939, s 20, and, therefore, the limitation period applicable
was twelve years, and the claim was not barred.
Decision of the Court of Appeal (sub nom Re Diplock’s Estate) ([1948] 2
All ER 318, 429), affirmed.

Note
As To Mistake of Law, see Halsbury, Hailsham Edn, Vol 23, pp 131, 132,
paras 181, 182; and for Cases, see Digest, Vol 35, pp 91–95, Nos 9–44.
Cases referred to in judgments
Harrison v Kirk [1904] AC 1, 73 LJPC 35, 89 LT 566, 24 Digest 791, 8222.
Noel v Robinson (1682), 1 Vern 90, 23 ER 334, 23 Digest 428, 4988.
Orr v Kaines (1750), 2 Ves Sen 194, 28 ER 125, 23 Digest 430, 5013.
David v Frowd (1833), 1 My & K 200, 2 LJCh 68, 39 ER 657, 24 Digest
793, 8240.
Peterson v Peterson (1866), LR 3 Eq 111, 36 LJCh 101, 23 Digest 431,
5025.
Re Rivers [1920] 1 Ch 320, 88 LJCh 462, 121 LT 57, 24 Digest 596, 6298.
Farmer v Arundel (1772), 2 Wm Bl 824, 96 ER 485, 35 Digest 158, 543.
Bize v Dickason (1786), 1 Term Rep 285, 99 ER 1097, 35 Digest 147, 460.
Bribane v Dacres (1813), 5 Taunt 143, 128 ER 641, 35 Digest 159, 545.
Bilbie v Lumbley (1802), 2 East 469, 102 ER 448, 35 Digest 158, 544.
Baylis v London (Bp) [1913] 1 Ch 127, 82 LJCh 61, 107 LT 730, 35 Digest
156, 526.
Rogers v Ingham (1876), 3 ChD 351, 35 LT 677, 35 Digest 93, 25.
Re Robinson [1911] 1 Ch 502, 80 LJCh 381, 104 LT 331, 43 Digest 960,
4002.
Hodges v Waddington (1683), 2 Vent 360, 86 ER 485, 23 Digest 430, 5011.
Harris v Harris (No 2) (1861), 29 Beav 110, 54 ER 568, 32 Digest 506,
1665.
Re Mason [1928] 1 Ch 385, 97 LJCh 321, 139 LT 477, affd, [1929] 1 Ch 1,
Digest Supp.
Moses v Macferlan (1760), 2 Burr 1005, 97 ER 676, 35 Digest 154, 511.
Sinclair v Brougham [1914] AC 398, 83 LJCh 465, 111 LT 1, 35 Digest
167, 8.
Re Blake [1932] 1 Ch 54, 100 LJCh 251, 145 LT 42., Digest Supp.
Hilliard v Fulford (1876), 4 ChD 389, 46 LJCh 43, 35 LT 750, 23 Digest
431, 5020.
Re Hatch [1919] 1 Ch 351, 88 LJCh 147, 120 LT 694, 35 Digest 95, 36.
Appeal
14

Appeal by the Ministry of Health against an order of the Court of Appeal

dated 9 July 1948.
The decision is reported sub nom Re Diplock’s Estate, Diplock and Other v
Wintle and Others at [1948] 2 All ER 318, and the supplementary judgment
of the Court of Appeal in an associated action is reported sub nom Re
Diplock’s 1138 Estate, Simpson and Others v Lilburn, at ibid, 429. The
Court of Appeal thereby reversed an order of Wynn-Parry J dated 11 March
1947, and report at [1947] 1 All ER 522. The decisions of the Court of
Appeal and Wynn-Parry J related to a number of associated actions brought
by persons entitled to share in such part of an estate as to which the testator
died intestate to recover certain sums of money paid to the defendants,
charitable institutions, by the executors of the testator’s will under a
direction which was subsequently declared by the House of Lords to be void
for uncertainty: Chichester Diocesan Fund v Simpson ([1944] 2 All ER 60).
Wynn-Parry J held, inter alia, that the rule that money paid under a mistake
of law was irrecoverable was of general application, and that the plaintiffs
could not maintain a claim for the return of the money as money had an
received. The Court of Appeal allowed the appeals on the general grounds:
(i) that the plaintiffs had a right in personam in equity against the recipients
which was not liable to be defeated by the fact that the payment to them had
been made under a mistake of law by the executors, and (ii) that the
plaintiffs had a right in rem to the money recognised by equity which would
enable them to trace the money, providing only that it was possible to
identify or disentangle it where it had been mixed with assets of the
recipients.
Upjohn KC, Denys B Buckley and Dunbar for the appellant, the Ministry of
Health.
Pascoe Hayward KC and J L Arnold for the respondents.
Their Lordships took time for consideration
23 November 1950. The following judgments were delivered.
LORD SIMONDS read the following opinion. My Lords, on 23 March
1936, Caleb Diplock died intestate as to his residuary estate, which
amounted to over £250,000. He had, by his will dated 3 November 1919,
purported to dispose of it by directing his executors to apply it “for such
charitable institution or institutions or other charitable or benevolent object
or objects in England” as his acting executors or executor might in their or
his absolute discretion select. The invalidity of this disposition was finally
established by this House in 1944. The proceedings in which this decision
was given had been commenced on 10 June 1940, by the testator’s executors
by way of originating summons issued in the Chancery Division of the High
15

Court of Justice, but in the meantime, on 3 January 1940, an action had been
commenced in the same division by the first three respondents to the present
appeal together with another person, claiming to be four of the next of kin of
the testator, against the executors or their personal representatives, certain
selected charitable institutions which had received donations from the
executors, and the Attorney General, claiming administration of the
testator’s estate. In this action—and it is for this purpose only that I think it
necessary to mention it to your Lordships—an order was made on 5 April
1944, by which the court approved a compromise of the claims of the
plaintiffs against the executors and directed that such compromise should be
binding on all persons beneficially entitled to the property of the testator.
Under this order (inter alia) a sum of £15,000 was to be paid by the
executors to the fourth respondent to this appeal, who had been appointed
judicial trustee of the testator’s estate. This order is relevant to the present
appeal because its admitted effect is that by it the first three respondents and
all other next of kin must be deemed to have exhausted whatever remedy
they had against the executors in respect of the wrongful distribution of the
estate. On 28 July 1945, the respondents issued the writ in the action in
which this appeal arises. The original defendants were the president, vice-
presidents, treasurer and governors of Westminster Hospital, a corporation
incorporated by private Act of Parliament. This corporation was dissolved
under the provisions of the National Health Service Act, 1946, and replaced
by a new corporation created under that Act. It is, however, common
ground between the parties that the appellant, the Ministry of Health, which
was added as a defendant to the action by an order 1139 of the Court of
Appeal, is, under s 6(1) of the same Act, liable to pay any sum due in respect
of the respondents’ claim. By their action the respondents claimed a
declaration of the liability of the defendants to refund to the estate of the
testator the sum of £4,000 which they had received out of that estate from
the executors, with interest thereon, and an order for payment accordingly.
The relevant facts are not in dispute. On 4 June 1936, the deputy chairman
of the hospital applied to the executors for a contribution towards the fund
for the erection of new buildings for the hospital. On 20 March 1937, a
cheque for £4,000 was sent to one of the treasurers of the hospital by or on
behalf of the executors under cover of a letter which, as is now admitted, did
not affect the recipient with notice of the invalidity or possible invalidity of
the residuary bequest in the will. On 23 March 1937, the cheque was paid
into the “Westminster Hospital Re-building Fund Current Account” at a
branch of Barclays Bank Ltd which at the close of business on that day
showed a credit balance of £15,268 1s 10d. It was not until 18 October
16

1939, that the defendants had notice of the claim of the next of kin and
already by that date all moneys to the credit of the account in question had
been applied in payments relating to the erection of the new hospital
buildings, and the account showed a debit balance of £9,508 3s 9d. In these
circumstances it is not contended that the respondents can assert any right at
law or in equity to follow or trace the sum of £4,000 into assets held by the
appellant. The single question to be determined in this appeal is whether the
original defendants were, and the appellant is, under a personal liability to
refund to the estate of the testator the money wrongfully paid to them. This
question has been answered in the negative by Wynn-Parry J and in the
affirmative by the Court of Appeal (Lord Greene MR and Evershed and
Wrottesley LJJ).
My Lords, I think that the reasoning and conclusion of the Court of Appeal
are unimpeachable, and it is right to add that, if Wynn-Parry J had had the
advantage of the citation of authorities and of the argument based on them
which the Court of Appeal and you Lordships have had, he might have come
to a different conclusion. The problem for determination can be simply
stated, and it is, perhaps, surprising that the sure answer to it is only to be
found by an examination of authorities which go back nearly three hundred
years. Acting under a mistake the personal representatives of a testator
whose residuary disposition is invalid distribute his residuary estate on the
footing that it is valid. Have the next of kin a direct claim in equity against
the persons to whom it has been wrongfully distributed? I think that the
authorities clearly establish that, subject to certain qualifications which I
shall state, they have such a claim. I think that it is important in the
discussion of this question to remember that the particular branch of the
jurisdiction of the Court of Chancery with which we are concerned relates to
the administration of assets of a deceased person. While in the development
of this jurisdiction certain principles were established which were common
to it and to the comparable jurisdiction in the execution of trusts, I do not
find in history or in logic any justification for an argument which denies the
possibility of an equitable right in the administration of assets because, as it
is alleged, no comparable right existed in the execution of trusts. I prefer to
look solely at the authorities which are strictly germane to the present
question. It is from them alone that the nature and extent of the equity are to
be ascertained.
Before I turn back to the seventeenth century when the Court of Chancery
was gradually wresting from the Spiritual Courts the jurisdiction in
administering the assets of deceased persons and framing apt rules to that
end, I will first refer to a statement made by Lord Davey early in this
17

century, which, as I think, illuminates the position. In Harrison v Kirk Lord

Davey says ([1904] AC 7):

“But the Court of Chancery, in order to do justice and to avoid the evil 1140
of allowing one man to retain what is really and legally applicable to the
payment of another man, devised a remedy by which, where the estate had
been distributed either out of court or in court without regard to the rights of
a creditor, it has allowed the creditor to recover back what has been paid to
the beneficiaries or the next of kin who derive title from the deceased
testator or intestate.”

The importance of this statement is manifold. It explains the basis of the

jurisdiction, the evil to be avoided, and its remedy. Its clear implication is
that no such remedy existed at common law. It does not suggest that it is
relevant whether the wrong payment was made under error of law or of fact.
It is immaterial whether those who have been wrongly paid are beneficiaries
under the will or next of kin. It is sufficient that they derive title from the
deceased. It is true that Lord Davey expressly dealt with the case of a
claimant creditor, not a beneficiary or next of kin. I shall show your
Lordships that what he said of the one might equally well be said of the
other. It would be strange if a court of equity, whose self-sought duty it was
to see that the assets of a deceased person were duly administered and came
into the right hands and not into the wrong hands, devised a remedy for the
protection of the unpaid creditor, but left the unpaid legatee or next of kin
unprotected.
I think, my Lords, that it is not necessary for me to review all the authorites.
This has been done with exhaustive accuracy by the Court of Appeal. I will
refer only to certain cases which appear to me to be landmarks in the history
of the equitable doctrine. In any such history the name of Lord Nottingham
LC must have first place. In Noel v Robinson the Lord Chancellor, after
referring to the practice of the Spiritual Courts under which the executor was
entitled to demand security of the legatee before paying his legacy in case
the amount was required in discharge of debts, said (1 Vern 93, 94):

“… but in this court, though there be no provision made for refunding, yet
the common justice of this court will compel a legatee to refund. It is certain
that a creditor shall compel the legatee to refund, and so shall one legatee
compel the other, where the assets become deficient … ”
18

I pause here for two purposes. First, I point out that already in 1682 a
creditor and a legatee shared the remedy established by the common justice
of the Court of Chancery. Secondly, it is a proper moment at which to deal
with an argument which was put forward by learned counsel for the
appellant. They urged that it was only in a limited class of cases that the
Spiritual Court required a legatee, who was paid his legacy, to give security
—first, to meet the contingency of further creditors appearing, and,
secondly, to meet the case of a deficiency of assets to pay all legacies of
equal rank pari passu—and that the remedy which the Court of Chancery
gave should be similarly circumscribed. The purpose and effect of the
argument, if accepted, would be to deny any remedy against persons
wrongly paid to next of kin rightfully entitled. I cannot accept this
argument. In the first place, I am by no means satisfied that the practice of
the Spiritual Court was so limited. The contention was largely based on the
fact that the only two precedents of bonds which had been discovered did
not cover any other than the contingencies already mentioned. At this
distance of time I do not think that this can be regarded as conclusive
evidence of the practice. But, in the second place, I see no justification for
regarding the equitable doctrine of the Court of Chancery as limited to the
previous practice, if it was the practice, of the Spiritual Court. That it was
not so regarded will appear from a later case to which I will shortly refer.
I pass over numerous cases in which the equitable remedy was refined and
elaborated. Their effect is stated in the judgment of the Court of Appeal and
summarised in the passage from Roper on Legacies, 4th ed, which is cited in
that judgment ([1948] 2 All ER 327), but I should in passing mention Orr v
1141 Kaines in which it was clearly established that the right of an
underpaid legatee to claim directly against the overpaid legatee is subject to
this qualification, that he must first exhaust his remedy against the executor
who has made the wrongful payment. It was for this reason that I mentioned
at an earlier stage of this opinion that the next of kin must be deemed to have
recovered from the executors all that they could recover. They had then no
other way to recover the balance that was due to them than by proceeding
directly against the appellant and other institutions among which the
executors had distributed the estate. It must at this point be said that a
distinction on which Wynn-Parry J relied has no validity. Not having had
his attention called to the earlier authorities, the learned judge was disposed
to think that the equitable remedy, even where it existed, was only available
to an unpaid creditor or legatee if the estate had been administered by the
court. There is no ground for this broad distinction, though it may well be
that a distinction exists, viz, that, where the executor has distributed the
19

estate under an order of the court the unpaid creditor would not be required
to bring a further action against him before proceeding against persons
wrongfully paid.
I go forward nearly a century, during which the equitable doctrine had been
recognised by successive Lord Chancellors and Masters of the Rolls, and
come to David v Frowd, a case on which the respondents rely as most nearly
resembling the present case. The resemblance lies in the fact that, there too,
the plaintiff was next of kin of an intestate who claimed against the
defendants that the estate of the intestate should have been paid to her, but
had been wrongfully paid to them. The distinction, if it is a material one, is
that there the payment had been due to a mistaken view (whether of fact or
law) that the defendants were the true next of kin, while here it was due to a
mistaken view as to the validity of the residuary bequest. My Lords, I think
that, subject always to one point to which I shall presently refer, David v
Frowd is an authority strongly in favour of the respondents. It is fatal to the
appellant’s argument, which I have already mentioned, that the equitable
remedy was confined to the cases of unpaid creditor or legatee, and is
consistent only with the view that the remedy was one (to adapt Lord
Davey’s words) devised by the Court of Chancery in the administration of
assets of a deceased person to avoid the evil of allowing one man to retain
money legally payable to another and was applicable wherever it could
appropriately be applied. Two other cases on which the respondents relied I
will mention before I examine those which the appellant cited as supporting
his contention—the first Peterson v Peterson in which Lord Romilly MR
once more asserted the equity, making no distinction between claimant
residuary legatees and next of kin, and, the second, Re Rivers, where Eve J
recognised and applied it.
Here then, my Lords, is a long line of authority extending over more than
250 years, resting on decisions of judges of the highest authority and broken
by no dissentient voice. Why should it not cover the present case? Three
arguments put forward by the appellant I have already mentioned and
disposed of, the first founded on a supposed relation between the assumed
practice of the Spiritual Court and the scope of the remedy provided by the
Court of Chancery, the second based on a distinction between wrongful
payments made when there has and when there has not been administration
by the court, and the third (which is bound up with the first) that there is a
distinction between claimant residuary legatees and next of kin. It remains
to deal with two other arguments. It was said that the equity was not
applicable against a “stranger,” and that the appellant (or the hospital
through whom it claimed), having been paid money to which it was not
20

lawfully entitled, since the disposition under which it took was invalid, was
to be regarded as a stranger. This argument is wholly without substance.
The hospital received £4,000 for no other reason than that the executors
thought that it was a proper object for the testator’s bounty. It was 1142
treated as a beneficiary under the testator’s will, and, to use Lord Davey’s
words, derived title under it. It does not appear to me that a person so
receiving money from the estate of a testator is in a different position from
any other person to whom money is paid on the footing that under the
testator’s will money can be lawfully paid to him though, in fact, the
payment is wrongful.
I come, finally, to the argument on which counsel for the appellant laid the
greatest stress, relying not only on the judgment of Wynn-Parry J but on the
other cases which have yet to be examined. It was that the equitable remedy
was subject at least to this qualification—that it was not applicable where
the wrongful payment was made in error of law. It was said that in every
case where it had been applied the wrongful payment had been made under a
mistake of fact, and that, wherever the principle had been stated without any
such qualification, it must be read, nevertheless, as subject to it. I think, my
Lords, that this argument, which found favour with the learned judge, is
misconceived. In the first place, though in almost all the reported cases the
probability is that the wrongful payment was made under a mistake of fact,
that is not true of all of them, and in many of them, while the probability is
in one direction, there can be no certainty without further information which
is not now available. This leads directly to the second reason. In not one of
the many cases where the equity was applied was any suggestion made in
argument or judgment that the issue depended on the nature of the mistake
under which the wrongful payment had been made. It is not credible that, if
the distinction between mistake of fact and law was relevant, it would never
have been mentioned, particularly at a time when in the courts of common
law it was being established. And here it may be observed that the equitable
doctrine was well settled before that event took place, for such cases as
Farmer v Arundel, Bize v Dickason, Brisbane v Dacres, Bilbie v Lumley,
show that up to the end of the eighteenth century there were in high places
doubts as to the validity of the distinction in the common law. In the third
place, the most satisfactory reason for the distinction rests in the maxim,
itself probably taken from the criminal law, ignorantia juris neminem
excusat: see Baylis v London (Bp). The man who makes a wrong payment
because he has mistaken the law may not plead his own ignorance of the law
and so cannot recover what he has wrongfully paid. It is difficult to see
what relevance this distinction can have where a legatee does not plead his
21

own mistake or his own ignorance, but, having exhausted his remedy against
the executor who has made the wrongful payment, seeks to recover money
from him who has been wrongfully paid. To such a suit the executor was
not a necessary party and there was no means by which the plaintiff could
find out whether his mistake was of law or of fact or even whether his
wrongful act was mistaken or deliberate. He could guess and ask the court
to guess, but he could prove nothing. I reject, therefore, the suggestion that
the equitable remedy in such circumstances was thus restricted, and repeat
that it would be a strange thing if the Court of Chancery, having taken on
itself to see that the assets of a deceased person were duly administered, was
deterred from doing justice to creditor, legatee, or next of kin because the
executor had done him wrong under a mistake of law. If, in truth, this were
so, I think that the Father of Equity would not recognise his child.
I turn now to the cases on which the appellant relies. The first of these is
Rogers v Ingham, and, as it is placed in the forefront of the appellant’s
argument (as it was in the judgment of the learned judge), it is worth
examining in some detail. The headnote reads as follows (3 ChD 351):

“The court will not in all cases relied against a payment of money under
mistake of law. An executor, acting on the advice of counsel on the
construction of a will, proposed to divide in certain proportions a fund
between two legatees. One of the legatees being dissatisfied took the
opinion of counsel, which agreed with the former opinion. The executor
then divided 1143 and paid over the fund in accordance with the opinions.
Two years afterwards the dissatisfied legatee filed a bill agains the executor
and the other legatee, alleging that the will had been wrongly construed, and
claiming repayment from the other legatee: Held (affirming the decision of
HALL, V.-C.), that the suit could not be maintained.”

As appears from the headnote, the case came first before Hall V-C, and,
though there is no note of the argument before him, it is clear from his
judgment how he regarded the issue. He said (ibid, 353):

“It seems to me that the fund was divided as a matter of arrangement

between the parties, and that having taken place more than two years before
the bill was filed, I ought not to give the assistance of this court for the
purpose of recalling that fund from the defendant, who received it upon the
faith and footing of what took place on that occasion.”
22

From his judgment the plaintiff appealed, and again it is clear how the issue
was regarded both by counsel and by the court.

“Payment by my trustee is payment by me, and I ought to recover the

money. A court of equity can relieve against the consequences of a mistake
of law; moreover this is hardly a pure question of law.”

Thus argued counsel for the appellant (ibid, 354). He made no reference to
the long line of authority which confirmed the equitable right that arises in
an administration of assets, perhaps because the act of wrongful distribution
was done by Ingham, the surviving executor and trustee, not in his capacity
of executor (in this respect the headnote is misleading), but in his capacity of
trustee distributing a trust fund. He may have thought, and he may have
rightly thought (I do not think it necessary to decide it), that the cases had no
relevance to an alleged breach of trust. Nor, on the other hand, did counsel
for the respondent legatee point out that according to the established rule the
plaintiff could not recover from him until she had exhausted her remedy
against Ingham or his estate. Ingham had, in fact, died and his executor was
a party to the suit, but he seems to have taken no part in the proceedings, and
there was no evidence that Ingham’s estate was insolvent. It was in these
circumstances that James LJ almost in the opening words of his judgment
said (ibid, 355):

“When a trustee, by the direction or with the authority of his cestui que trust,
pays money to a third person, no matter under what claim of right or under
what circumstances, it is exactly the same as if the cestui que trust and
received the money from the trustee, and had herself paid it to that person. It
is simply a question of money paid by the lady, or the lady’s direction, out
of money of hers which the trustee had in hand to a person who said that he
had a claim to the money.”

Already it is sufficiently clear what are the facts to which the relevant law
must be applied, but I will cite a few lines more which are a clue to the
whole judgment. The lord justice goes on (ibid):

“That being so, it is reduced, as it appears to me, to a mere action for money
had and received, and it is the same as if A through a third person had paid
money to B, thinking that B was entitled to it, B thinking also that he was
entitled to it; there having been, as it is now said, a mistake of law which
was common to both parties.”
23

It is in this context that he later uses the words so much relied on by the
appellant (ibid):

“I have no doubt that there are some cases which have been relied on, in
which this court has not adhered strictly to the rule that a mistake in law is
not always incapable of being remedied in this court; but relief has never
been given in the case of a simple money demand by one person against
1144 another, there being between those two persons no fiduciary relation
whatever, and no equity to supervene by reason of the conduct of either of
the parties.”

It is, I think, clear that the learned lord justice, whose every word on a
question of equitable principle is weighty, was dealing solely with a case
where (in his own language) a trustee by the direction or with the authority
of his cestui que trust pays money to a third person, and was not dealing
with a case where, without his acquiescence or even his knowledge, an
executor wrongs a creditor or beneficiary by paying to another money which
should be paid to him.
The next case to be considered is Re Robinson. Two preliminary
observations may be made—first, that the case was not concerned with a
wrongful distribution of assets in the administration of an estate, and,
secondly, that the sole question was what, if any, statute of limitations was
applicable to the claim. The claim was by a beneficiary under a trust, who
alleged that he had been underpaid, directly against a beneficiary under the
same trust who had been overpaid. The learned judge had first to determine
its nature. It was, he said, a “mere money demand by the plaintiff against
the defendant.” He then states the rival contentions, the defendant saying
that it was in reality a common law action for money had and received, and,
therefore, barred by the lapse of six years under the statute of James I (21
Jac 1, c 16), the plaintiff, on the other hand, saying that, where a trust fund
had by mistake been paid by the trustee to the wrong beneficiary, there was
not in the old Court of Chancery any bar by lapse of time to the recovery of
lost money. He says that the defendant’s contention would prima facie
appear to be right, analysing the position and saying that the party whose
money had been wrongly paid away could, at all events, have maintained a
suit in equity for it—a statement which points the contrast between such a
suit and one by a legatee against a legatee in which the joinder of the
executor as plaintiff was fatal: see Hodges v Waddington, and he concludes
([1911] 1 Ch 508):
24

“But whether the action is treated as a strict claim in law for money had and
received, or whether it is brought as a claim in equity through the medium of
a trustee—in whichever way it is regarded—at first sight, inasmuch as the
court has always acted by analogy to the statute, one can see no reason why
the period fixed by the statute should not bar the right of the plaintiff to
recover.”

The learned judge then deals with certain cases on which the plaintiff had
relied and sums up by a classification of the cases in which mistakes have
been made by trustees in payment of trust funds. I doubt with respect
whether the classification is exhaustive, but in any case it is made for no
other purpose than to show in what cases a court of equity regarded a claim
by a cestui que trust as not barred by any lapse of time. The learned judge
concludes thus (ibid, 513):

“The present case resolves itself into this—that although, owing to the fact
that the plaintiff is not the person who paid the money, the action is one
which could not have been maintained at common law, it is in substance a
mere money demand to which a court of equity, acting by analogy to the
statute, would apply the same period of limitation.”

I have been led to examine this case at some length because of the emphasis
laid on it by the appellant. Having done so, I find in it no support for the
contention that the equity which is the foundation of the present claim is
qualified by the condition that the wrongful payment must not have been
made under a mistake of law. The learned judge was not considering that
question. With great respect I cannot (notwithstanding the subsequent
approval of Romer J in the case to which I next refer) accept his reading of
the decree made by Lord Romilly MR in Harris v Harris (No 2), for it is, I
think, clear that the 1145 defendant in that suit was, in effect, held liable to
repay moneys which he had been wrongly paid, though in form the liability
was declared to be to replace certain annuities of which he had received the
proceeds of sale. Nor, with respect, can I assent to the view first expressed
by the learned judge that the action is prima facie “in reality a common law
action for money had and received,” though I would be inclined to accept
the modified statement already cited with which he concludes his judgment.
I see no reason to doubt that to a claim, whether made by legatee against
legatee, or by cestui que trust against cestui que trust, in respect of a
payment made under a mistake of fact or of law, a court of equity could
25

properly, before the Limitation Act, 1939, came into force, apply by analogy
the statute of James I. Nor do I understand that counsel for the respondents
on this appeal dissents from that proposition.
I am brought now to Re Mason. The judgment of Romer J in that case, so
far as it was in any way relevant to the matter under appeal, was that a
petition of right presented by the next of kin of a lunatic who had died in
1978 was barred by the statute of James I. I do not doubt that the decision
was correct for the same reasons that I have given in regard to the decision
in Re Robinson, but the appellant relies on certain statements by the learned
judge which, in his contention, militate against the view that the equitable
doctrine relied on by the respondents was applicable where the wrongful
payment was made under a mistake of law. The learned judge makes the
assumption that the whole of the estate of the lunatic had come into the
hands of King George III and says ([1928] 1 Ch 391):

“On that assumption the claim of the suppliants is one to recover from the
Crown moneys that in fact belonged to Maria L’Epine’s next of kin, but was
wrongfully paid over by her administrators to King George III. It is, in other
words, a claim by a cestui que trust to recover from a third party money
which his trustee has by mistake paid to that third party. Such a claim is one
for money had and received.”

I pause to observe that the learned judge, who had had cited to him none of
the long line of cases involving claims for refund in the administration of
assets, treated the claims as if it were a claim by one cestui que trust against
another and then referred to such a claim as one for money had and received,
and it was on that footing that, after referring to Re Robinson, he said that, if
the claim of the trustee would be barred in an action at law by any statute of
limitations, the claim of the cestui que trust, so far as it was for money had
and received, would be equally barred. My Lords, I must with the greatest
deference to the learned judge observe that an action by a legatee or next of
kin to recover money paid to the wrong person in the administration of
assets is not a claim by one cestui que trust against another, and that,
whatever may be said of the latter, it cannot with any formal accuracy be
said that the former is an action for money had and received. Such an action
is an action at common law deriving from indebitatus assumpsit. I will not
embark on the rather arid dispute whether its gist was an implied promise,
but it has, I think, no relation to the equity by which for three hundred years
such a claim as the respondents now make has been supported. It is true that
in Moses v Macferlan Lord Mansfield said (2 Burr 1012):
26

“In one word, the gist of this kind of action is, that the defendant … is
obliged by the ties of natural justice and equity to refund the money,”

but this broad statement contained, perhaps, less the basis on which the
action at common law was founded than an aspiration as to the area over
which it might one day extend. There remained a field over which “this
essentially common law action” (as Lord Sumner in Sinclair v Brougham
called it) did not extend. The plaintiff in David v Frowd, for instance, could
not, I think, have maintained an action for money had and received in a court
of 1146 common law. If this is so, the fact that, as the common law action
developed, it was established that a mistake of law would not support a
claim for repayment, appears to me to afford no justification for saying that
this equitable right was similarly limited. Therefore, while, as I have said, I
do not question the decision, which was, indeed, affirmed by the Court of
Appeal, I do not think that it helps the appellant’s case. In the Court of
Appeal Lawrence LJ [in Re Mason] agreed that the proceedings were “in
effect” proceedings for money had and received. My respectful comment
would be that this is not an inaccurate statement since the effect of the
action, if it succeeds, would be the same.
The appellant next relied on some observations made by Maugham J in Re
Blake, a case not unlike Re Mason in that here, too, it was pleaded by the
Crown that a claim made by petition of right was barred by the statute of
James I. In the course of his judgment, the learned judge said ([1932] 1 Ch
60):

“An action in the Chancery Division brought by the next of kin against a
person to whom the administrator had wrongly paid part of the personal
estate of the intestate under a mistake of fact (not joining the administrator
and seeking administration) would be in the nature of a common law action
for money had and received, and the court acting on the analogy of the
statute of James I (21 Jac. 1, c. 16) would hold the claim to be barred after
the lapse of six years from the date of payment … ”

It would, I think, be hypercritical to quarrel with this statement in which the

learned judge so guardedly refers to such an action as being “in the nature of
a common law action.” In my judgment, it gives no support to the
appellant’s contention. Two other cases I will do no more than mention—
Hilliard v Fulford, and Re Hatch—for I am fully satisfied with the
observations of the Court of Appeal on them.
27

Finally, my Lords, I must say some words on an argument of a more general

character put forward on behalf of the appellant. The Court of Chancery, it
was said, acted on the conscience, and, unless the defendant had behaved in
an unconscientious manner, would make no decree against him. The
appellant, or those through whom he claimed, having received a legacy in
good faith and having spent it without knowledge of any flaw in their title,
ought not in conscience to be ordered to refund. My Lords, I find little help
in such generalities. On the propriety of a legatee refusing to repay to the
true owner the money that he has wrongly received I do not think it
necessary to express any judgment. It is a matter on which opinions may
well differ. The broad fact remains that the Court of Chancery, in order to
mitigate the rigour of the common law or to supply its deficiencies,
established the rule of equity which I have described, and this rule did not
excuse the wrongly paid legatee from repayment because he had spent what
he had been wrongly paid. No doubt, the plaintiff might by his conduct,
and, particularly, by laches, have raised some equity against himself, but, if
he had not done so, he was entitled to be repaid. In the present case the
respondents have done nothing to bar them in equity from asserting their
rights. They can only be defeated if they are barred at law by some statute
of limitation. It is common ground between the parties that the only statute
now applicable is the Limitation Act, 1939, which came into operation on 1
July 1940, and the question is: Which of the sections of this Act is
applicable to the present case? I hope I shall not be thought wanting in
respect to the elaborate argument of counsel for the appellant if I deal with
this question very shortly. I do so because on the main point, viz the
applicability of s 20, which the respondents assert and the appellant denies, I
am in complete agreement with the reasoning and conclusion of the Court of
Appeal and cannot usefully add anything of my own. The present action is
precisely within the language of the section. 1147It is in respect of a claim
to the personal estate of Caleb Diplock, and there is nothing in the ancestry
of the section which justifies, much less requires, a narrower meaning being
given to its words than they ordinarily bear. It is suggested that there is
something awkward or inapposite in the terminus a quo, inasmuch as the
relevant period is to run from the date when the right to receive the share
accrued. I think that this criticism is ill-founded. There is nothing
inappropriate in a legatee or next of kin who has brought no action for
twelve years after the executor’s year has expired being barred from such
action whether against the executor himself or against the person to whom
the executor has made wrongful payment. At the least, there is nothing so
inappropriate in such a result as to deprive the substantive words of the
28

section of their plain meaning. Section 20 applying to this action, and it

being conceded that the relevant period had not expired before it was
brought, the defence under the statute fails. I think it, therefore, unnecessary
to say anything about s 26 by way of approval or disapproval of what fell
from the Court of Appeal. It is a section which presents many problems.
One thing only remains to be said. The action was brought by three only of
the next of kin who are said to be a numerous body and their claim was not
that their share of the £4,000 wrongfully paid away should be paid to them,
but that the whole of that sum should be paid to their co-plaintiff the judicial
trustee to be dealt with by him in due course of administration of the estate.
No objection was taken by the appellant to this course at any stage of the
action, and his counsel has expressly disclaimed any wish to do so now.
Accordingly, this appeal must be dismissed. But he has at the same time
properly said that his present disclaimer should not prejudice any other of
the numerous charitable institutions against whom similar actions are
pending. I agree, and express no opinion whatever whether any such
objection could be sustained. I move, my Lords, that the appeal be
dismissed with costs.
LORD NORMAND. My Lords, I concur.
LORD OAKSEY. My Lords, I agree.
LORD MORTON OF HENRYTON. My Lords, I also agree.
LORD MACDERMOTT. My Lords, I also agree.
Order accordingly.
Solicitors: Trollope & Winckworth (for the appellant); White & Leonard
(for the respondents).
J D Pennington Esq Barrister.
[1950] 2 All ER 1148
29

Williams v Holland and Another

SUCCESSION; Administration of Estates

COURT OF APPEAL
LORD UPJOHN, DAVIES AND SALMON LJJ
8, 9 MARCH 1965

Administration of Estates – Sale for purposes of administration –

Mortgaged house devised to four children of testator in equal shares –
Daughter in occupation of one room – Request to executor to vest house in
beneficiaries subject to mortgage instead of selling it – No assent by
executor – Notice to quit given by executor – Action by executor for
recovery of possession for purposes of sale in course of administration –
Mesne profits – Whether mesne profits recoverable for period from
testator’s death or from expiry of notice to quit – Administration of Estates
Act, 1925(15 Geo 5 c 23), s 36(10).

A testator died on 21 June 1961, having by his will left a house on trusts
under which his four children were entitled to the proceeds of the trust for
sale thereof in equal shares. One room in the house was occupied, when the
testator died, by Mrs H, one of his children, and her husband. The house
was subject to a mortgage and the executor desired to sell the house and use
the money for purposes of administration, the cash in the estate having been
exhausted. Mrs H claimed to remain in the house as a beneficiary entitled
to an undivided fourth share therein, and wished the executor to assent to
the vesting of the house in the children subject to the mortgage, instead of
selling it. No assent had been made. On 31 December 1963, the executor
gave Mrs H and her husband notice to quit the house on 3 February 1964.
On appeal from an order made in an action brought by the executor as such
against H and her husband, ordering possession and payment of mesne
profits from the date of the testator’s death, 21 June 1961,

Held –

(i) the executor was clearly entitled to possession for the purposes of
administration and, as s 36(10)a of the Administration of Estates
30

Act, 1925, merely conferred a power, he was under no obligation to

make an assent subject to the mortgage (see p 159, letter a, post).
________________________________________
a Section 36(10) provides: “A personal representative may, as a
condition of giving an assent or making a conveyance, require
security for the discharge of any such duties, debt, or liability, but
shall not be entitled to postpone the giving of an assent merely by
reason of the subsistence of any such duties, debt or liability if
reasonable arrangements have been made for discharging the same;
and an assent may be given subject to any legal estate or charge by
way of legal mortgage.”
¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯
(ii) until 3 February 1964, Mrs H and her husband were not
trespassers, but were in possession by virtue of Mrs H.’s entitlement
as beneficiary to an undivided quarter share of the proceeds of sale
of the house; accordingly they were not liable for mesne profits for
any period prior to 3 February 1964, but thereafter they were
trespassers and were liable for mesne profits (see p 159, letter g,
post).
Appeal dismissed as regards to possession but allowed in part as
regards mesne profits.

Notes

As to a personal representative’s power to assent to the vesting of property

subject to a mortgage, see 16 Halsbury’s Laws (3rd Edn) 341, 342, para 663.
As to mesne profits, see 23 Halsbury’s Laws (3rd Edn) 561, para 1230.
As to the duty of personal representatives to consult the wishes of
beneficiaries, see 16 Halsbury’s Laws (3rd Edn) 357, para 691, note (d).
For the Administration of Estates Act, 1925, s 36(10), see 9 Halsbury’s
Statutes (2nd Edn) 741.

Appeal

This was an appeal by the defendants, Emile Holland and his wife Emilia
Alake Holland (“Mrs. Holland”) from the judgment of His Honour Judge
Baxter given at West London County Court on 29 July 1964, whereby he
adjudged that Ralph Edwin Alieu Williams, the plaintiff, should recover
against the defendants possession of No 16, Wharfedale Street, London,
SW10, and also the sum of £486 for rent and mesne profits. The grounds of
31

appeal were: 157(i) that (the plaintiff purporting to claim as trustee of a

trust for sale) it ought in law to have been held that the action was not
properly constituted because not all the trustees of the said trust were parties;
(ii) further or alternatively that it ought in law to have been held that the
plaintiff was not entitled to possession of the said property as against the
defendants, the second defendant being a tenant in common under a trust for
sale in respect of the property; (iii) further or alternatively that there was no
evidence on which the learned judge could properly have found in favour of
the plaintiff. The plaintiff was the son, and executor of the will, of Vidal
Solomon Williams who at his death owned the freehold of the premises.
J P Brooks for the appellants.
Paul Curtis-Bennett for the plaintiff executor.
9 March 1965. The following judgments were delivered.
LORD UPJOHN. This is an unhappy case, and this appeal is the latest step
so far in much litigation between the beneficiaries under the will of Vidal
Solomon Williams, who died on 21 June 1961, and whose will, dated 29
September 1960, was proved by the executor, the plaintiff in this action, on
11 April 1962. That will contained some obscure phraseology in relation to
a specific devise of the property, No 16, Wharfedale Street, and a
construction summons was taken out in the Chancery Division; Plowman J
decided that, on the true construction of that will, which I need not read, the
house in Wharfedale Street was held on trust to pay and divide the net
income of the property equally between the four defendants to that
summons, and that the trust was unlimited in duration, and, accordingly,
carried the capital of the property or the proceeds of sale thereof in equal
shares. The property was given to the four children of the testator. The
plaintiff executor is one of them, and the appellant, Mrs Holland, was
another child; she was second defendant in this action, the first defendant
being her husband. Therefore, subject always to the claims of the executor
for the purposes of administration, the appellant, having regard to the
declaration of Plowman J was entitled in equity to an undivided fourth part
of the property, the legal estate after assent by the executor being held on
trust for sale, not by virtue of any direction in the will, but because it was a
gift of undivided shares. The appellants have been in occupation of one
room in the house ever since the death of the testator. They claim to be there
as persons entitled to an undivided fourth share; a strange claim after 1
January 1926. This action was begun in the county court by the plaintiff as
executor, claiming possession and mesne profits.
Very little evidence was given before the county court judge but, in opening
before that court, counsel for the plaintiff stated some facts which apparently
32

were well known to and accepted by all concerned, so that no objection was
taken to its repetition before us. It appears that the administration of this
estate has been far from easy. The property, No 16, Wharfedale Street, is
thought to be worth about £8,000. It is subject to a mortgage in favour of a
building society, for £2,100. The cash in the estate has been exhausted in
paying debts and costs. There is some property in Sierra Leone worth about
£2,000, but apparently it has not yet been realised. There are costs of
administration, being largely the costs of the construction summons that I
have already mentioned, of about £550. There will, of course, be the costs
of this action and this appeal, and apparently there is an Inheritance (Family
Provision) Act, 1938, application pending. The mortgagee has not been paid
any instalment of capital or interest for over a year, but has agreed to stay its
hand rather than to enforce the mortgage until the determination of this
appeal so that the executor may sell the property, and, of course, as one
knows, it may be that he would get a better price than a mortgagee selling
merely to realise his security.
It is in those circumstances that the plaintiff executor comes to the court and
says that he desires possession in order to sell the property for the purposes
of administration. To that application there can, it seems to me, be no
conceivable answer at all. It is said that he ought to have exercised his
powers under s 36(10) 158of the Administration of Estates Act, 1925,
which gives to him power, if he wishes so to do, to make assent of the
property subject to a mortgage; but it is quite plain that that is only a power,
and, if the plaintiff executor prefers to sell the property himself, as well he
may in the circumstances that I have mentioned, no beneficiary can compel
him to make any assent subject to the mortgage. Accordingly, as I have
said, it seems to me that the defence to the action for possession is entirely
misconceived. The plaintiff executor as such is administering the estate.
There has been no assent, the trust for sale has not yet arisen. He is not
shown to have been mal-administering in any way. He says he wants vacant
possession of this property for the purpose of administration, and to that
there is no answer. Accordingly, it seems to me quite clear that the order for
possession must go.
A more difficult question arises with regard to the mesne profits. The
learned county court judge made an order for mesne profits from the date of
death, but, for my part, I have some difficulty in seeing how that can be
right. As I have said, the defendants were not in possession as trespassers;
they were in there as persons who, subject to the claims of administration,
could properly say that, under a trust for sale, they were entitled in equity to
a one-fourth part of the proceeds of sale and the rents and profits until sale.
33

They were in possession at the date of death, and they claim that they are not
trespassers, but that they are entitled to remain in possession until the
property comes to be sold.
On 31 December 1963, the plaintiff executor gave a notice to quit to the
appellants to expire on 3 February 1964. It seems to me quite plain that he
was then exercising his legal rights as owner, and from 3 February the
appellants became trespassers because they were only entitled subject to the
claim of the executor for the purposes of administration, and therefore they
had no further right to remain there, unless, of course by some agreement,
they were prepared to pay rent. So from 3 February 1964, they were
trespassers. Therefore the plaintiff executor is entitled to a claim for £3 a
week—there is no dispute about the propriety of that sum—from that date
until possession; but, before that, it seems to me that the plaintiff executor is
in a difficulty in making any claim as such, for he did not treat them as
trespassers before that time. It may well be that, when the estate has been
realised and the claims of the creditors and others have been satisfied and the
rights of the beneficiaries inter se are being adjusted, it would be proper for
Mrs Holland to give some credit for her beneficial occupation rent free of
this house from the date of death until 3 February 1964. I say nothing more
about that; that is not a matter before the court. The plaintiff executor has
not put his claim on the basis that Mrs Holland has enjoyed an unfair share
of her interest in the house; he has treated the appellants solely as
trespassers, and he wants possession for the purpose of exercising his duty
as executor. So it seems to me clear that the plaintiff is entitled to an order
for possession and to mesne profits from 3 February 1964. That, of course,
will involve some variation of the order of the learned county court judge,
but, subject to that, I for my part would dismiss the appeal.
DAVIES LJ. I entirely agree and do not wish to add anything.
SALMON LJ. I agree.
Appeal dismissed. Order in court below varied to possession within twenty-
eight days from today, substituting by agreement the sum of £183 for £486
for rent and mesne profits.
Solicitors: Foster, Clare & Pleace (for the appellants); Theodore Goddard &
Co (for the plaintiff executor).
Henry Summerfield Esq Barrister.
159
[1965] 2 All ER 160
34

In the Estate of Holland

SUCCESSION; Administration of Estates

PROBATE DIVORCE AND ADMIRALTY DIVISION
BUCKNILL J
26 AUGUST 1936

Executors and Administrators – Probate – Will – Appointment of executors

– Four general executors and one literary executor – Number to whom
grant may issue – Supreme Court of Judicature (Consolidation) Act 1925 (c
49), s 160(1).

A testatory by his will appointed four persons as executors and trustees of

his will, and after certain bequests appointed a fifth person literary executor
in respect of certain papers. The usual executors’ oath was sworn by the
four general executors for the purpose of a grant to them of the estate save
and except the papers in respect of which the fifth person was appointed
literary executor. The oath was refused by the Registry on the ground that
by reason of the Judicature Act 1925, s 160, one of the five executors must
renounce. The executors applied to the court asking that the oath tendered
by them might be received:—

Held

as the oath asked in effect for grants to five executors it contravened the
Judicature Act 1925, s 160, and ought not to be received.

Notes

This case turns upon the meaning to be given to the word “property” in the
Supreme Court of Judicature (Consolidation) Act 1925, s 160(1), and the
opposing contentions are that it means (i) the particular property of which
probate or administration is granted to any particular personal
representatives or (ii) the whole estate of the deceased. If the first
contention were correct one could have more than four personal
representatives altogether, though not more than four in respect of any one
particular property. Under the second contention, which has here been
35

upheld and approved, it is impossible in any event to have more than four
personal representatives in respect of the deceased’s estate.
As to Number of Executors, see Halsbury (Hailsham Edn), Vol 14, p 167,
para 254; and for the Judicature Act 1925, s 160(1), see Halsbury’s
Complete Statutes of England, Vol 8, p 371.
Ex parte Application
Ex parte Application to the Vacation Court for removal of queries raised on
executor’s oath. The Hon Lionel Raleigh Holland, who died 13 on 25 May
1936, by his will dated 27 April 1936, appointed four persons as executors
and trustees of his will, and, following a special bequest to his cousin,
Francis Caldwell Holland, of “all my letters and papers of every description
(with the exception of the Macaulay papers),” appointed him “my literary
executor. Advising him to destroy my private papers and letters without
troubling to examine them with any care, but bequeathing them to him to
deal with absolutely at his discretion.”
The usual executor’s oath was sworn by the four general executors
appointed by the will for the purpose of a grant to them of the estate save
and except the papers in respect of which Francis Caldwell Holland was
appointed literary executor. The oath was refused in the Registry on the
ground that by reason of the Supreme Court of Judicature (Consolidation)
Act 1925, s 160, one of the five executors must renounce, subject possibly to
power being reserved to apply in the event of a vacancy arising, under
Probate Rules (Non-contentious), r 114. The application was made ex parte
and came before the vacation judge as one of urgency by reason of certain
matters to be done in connection with the estate which should not be delayed
any longer. Interest was being paid on loans and there were a number of
legatees waiting to receive their legacies.
Sir Gerald Hurst KC (William Latey with him), for the executors: The late
Mr Holland owned some valuable literary documents, known as the Holland
manuscripts. By his will four executors of the general estate were appointed
and Mr F C Holland, a cousin of the testator, was appointed literary
executor, and the Holland manuscripts were bequeathed to him. When the
executors tendered the usual oath the Probate Registry refused to accept it on
the ground that the total number of executors was five. It is quite clear that
down to 1926 a testator might appoint more than four executors for general
or limited purposes. There was no limit save that prescribed by reason, and
all the executors named could take a grant or limited grants according to the
powers given them in the will. By the Supreme Court of Judicature
(Consolidation) Act 1925, s 160(1), it is provided that probate shall not be
granted to more than four persons in respect of the same property. The
36

registrar has taken the view that that section makes it illegal for probate to be
granted to four general executors and one literary executor, but that was the
wrong construction of the section. What the section means is that there
cannot be more than four executors of any one piece of property. It does not
mean that there may not be more than four executors in respect of the whole
estate, for it is clear that different executors may be appointed of different
parts of an estate. See Halsbury’s Laws of England (Hailsham Edn), Vol 14,
p 163, para 247. S 103 of the Act saves former procedure which is not
inconsistent with the Act. If the statute had been intended rigidly to limit a
grant 14 of probate to no more than four executors under a will, the words
used in s 160 would not have been in “respect of the same property,” but “in
respect of the same estate.” I therefore ask your Lordship to direct that the
oath of the four executors be accepted without any of the five executors
being called upon to renounce.
26 August 1936. The following judgment was delivered.
BUCKNILL J. In my view the registrar was right in his interpretation of the
section, and an oath asking in effect for grants to five executors contravenes
s 160.
Application refused.
Solicitors: Preston Lane-Claypon & O’Kelly.
J F Compton Miller Esq Barrister.
[1936] 3 All ER 15
37

Lall v Lall

SUCCESSION; Intestacy
CHANCERY DIVISION
BUCKLEY J
6 JULY 1965

Intestacy – Interest in estate – Widow’s right to appropriation of

matrimonial home to her interest in estate – Occupation of matrimonial
home by widow – Registered proprietor sought possession – Application
to have defence struck out – Defendant widow had no interest
recognisable by law in the house – No locus standi to defend action –
Proceedings launched to join Official Solicitor as defendant to defend
rights of estate – Intestates’ Estates Act, 1952(15 & 16 Geo 6 & 1 Eliz 2 c
64), s 5, Sch 2, para 1.

The plaintiff was the registered proprietor of a house which was occupied
by the defendant, his mother. He started an action to obtain possession of it.
Her defence was that the plaintiff was a trustee of the house for her husband
who had died intestate. She claimed to be entitled as against the plaintiff to
occupy the house on the ground that it formed an asset of her husband’s
estate in which she had an interest under s 5a of the Intestates’ Estates Act,
1952, and Sch 2, para 1, as the surviving spouse thereby entitled to have the
matrimonial home appropriated to her interest. No grant of administration
had been obtained and she was unable to obtain one herself. As no one else
was interested proceedings had been launched to obtain a grant to the
Official Solicitor. The plaintiff applied by summons to have the defence
struck out on the ground that it disclosed no reasonable 330 cause of
defence and would tend to delay the fair trial of the action. On the question
whether the defendant had a sufficient locus standi to defend the action,
________________________________________
a Section 5 of the Intestates’ Estates Act, 1952, provides: “The Second
Schedule to this Act shall have effect for enabling the surviving husband or
wife of a person dying intestate after the commencement of this Act to
acquire the matrimonial home.”Schedule 2, para 1(1) provides: “Subject to
the provisions of this schedule, where the residuary estate of the intestate
comprises an interest in a dwelling-house in which the surviving husband or
wife was resident at the time of the intestate’s death, the surviving husband
38

or wife may require the personal representative, in exercise of the power

conferred by s 41 of the principal Act (and with due regard to the
requirements of that section as to valuation) to appropriate the said interest
in the dwelling-house in or towards satisfaction of any absolute interest of
the surviving husband or wife in the real and personal estate of the
intestate.”
¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯
Held –

(i) just as a residuary legatee who had an interest in the totality of

assets in an estate had not an equitable interest in a particular asset,
so a surviving spouse, who had in some sense a particular interest
in the matrimonial home under the Act of 1952, had no equitable
interest in it that was recognisable by law; and, as the defendant
could not have a locus standi unless it was based on an interest
recognised by the law in property, she had no locus standi to defend
the action (see p 333, letters a to d, post).

Dictum of Viscount Radcliffe in Comr of Stamp Duties v Livingston

([1964] 3 All ER at p 700) applied.

(ii) as there was no one who could defend the rights of the estate in
respect of the house as against the plaintiff, the court would order
the summons to be stood over until one month after a grant of
administration had been made to the Official Solicitor or
proceedings for it had been disposed of, with liberty to restore the
summons when an application was made to add him as a defendant
(see p 333, letter f, post).

Notes
As to the right of a surviving spouse to acquire the matrimonial home on an
intestacy, see 16 Halsbury’s Laws (3rd Edn) 397, 398, para 767.
For the Intestates’ Estates Act, 1952, s 5 and Sch 2, see 32 Halsbury’s
Statutes (2nd Edn) 122, 132.
Cases referred to in judgment
Barnardo’s Homes v Income Tax Special Comrs [1920] 1 KB 468, affd HL,
[1921] 2 AC 1, 90 LJKB 545, 125 LT 250, 23 Digest (Repl) 398, 4697.
Comr of Stamp Duties v Livingston [1964] 3 All ER 692, [1964] 3 WLR
963.
39

Eastbourne Mutual Building Society v Hastings Corpn [1965] 1 All ER 779,

[1965] 1 WLR 861.
Sudeley (Lord) v A-G, [1897] AC 11, 60 LJQB 21, 75 LT 398, 61 JP 420,
23 Digest (Repl) 474, 5445.
Procedure Summons
In an action begun by writ dated 1 January 1965, the plaintiff, Sydney
Michael Lall, claimed in his statement of claim that he was the owner in fee
simple of, and was, and had at all material times been, registered with
absolute title as owner of a house and land known as 14, Manor Gardens,
Hampton, Middlesex. Since early in the year 1964 the defendant, Joanna
Elizabeth Lall, had occupied the house and premises without lawful title
save in so far as the plaintiff might, prior to the notice to quite, have tacitly
acquiesced in such occupation. By letter dated 10 September 1964, written
by the plaintiff’s solicitors to the defendant’s solicitors, the plaintiff gave
notice to the defendant to vacate the premises not later than 14 October
1964. The defendant refused to vacate the premises and remained in
occupation of them. The plaintiff claimed possession of the premises, and
mesne profits from 14 October 1964, until possession was delivered. By
summons dated 20 May 1965, the plaintiff applied to have the defence in the
action struck out on the grounds that it disclosed no reasonable cause of
defence and that it would tend to embarrass and delay the fair trial of the
action. The facts are set out in the judgment.
J W Brunyate for the plaintiff.
W J C Tonge for the defendant.
6 July 1965. The following judgment was delivered.
BUCKLEY J. This is an action in which the plaintiff seeks to obtain
possession of a certain house, mentioned in the statement of claim, of which
he is the registered proprietor. The defence is that the plaintiff was a trustee
of the property in question for the defendant’s husband, who died intestate in
331 February, 1964, and to whose estate no grant of administration has yet
been obtained.
The defendant claims that she is entitled as against the plaintiff to occupy
the house on the ground that it forms an asset of her husband’s estate in
which she has an interest. She had been unable herself to obtain a grant of
administration apparently because there had been difficulty about her
obtaining a suitable bond. Consequently, since apparently no one else has
been interested to apply for a grant no grant of representation of her
husband’s estate has yet been made, but I am told that proceedings have now
been launched with a view to obtaining a grant of administration to the
Official Solicitor limited to defending this action.
40

The plaintiff seeks on this application to have the defence struck out on the
ground that it discloses no reasonable cause for defence and that it will tend
to delay a fair trial of the action. The submission which has been put
forward by counsel who appears for the plaintiff is that the plaintiff, being
the registered proprietor of the house, is entitled to possession of the house
unless the defendant can show some good cause against him, but that in this
defence the defendant is not setting out any right of her own but is relying on
the title of another, that is to say the title of the personal representative of her
deceased husband if and when constituted. He has referred me to the
decision of Plowman J in Eastbourne Mutual Building Society v Hastings
Corpn in support of the proposition that no person interested either under a
will or on intestacy in the estate of a deceased person has any proprietary
interest in any particular asset of the estate while the estate remains
unadministered.
Counsel who appeared for the defendant has contended that having regard to
the provisions which are to be found in Sch 2 to the Intestates’ Estates Act,
1952, relating to the rights of a surviving spouse in respect of the
matrimonial home, under which a surviving spouse can require the
matrimonial home to be appropriated to her interest in the estate of the
deceased spouse and which provide that until a certain period has elapsed
the personal representative shall not sell or otherwise dispose of the
matrimonial home without the consent of the surviving spouse except in the
course of administration owing to want of other assets—that is to say, if the
sale is necessary in order to discharge the debts and duties that fall on the
personal representative—the defendant in this case has a sufficient locus
standi to defend this action against the plaintiff.
Now, in Eastbourne Mutual Building Society v Hastings Corpn, the question
was whether a surviving husband was entitled to an interest in the house
which was the subject matter of dispute, within the meaning of the Housing
Act, 1957, Sch 2, Pt 2, para 4, where he was entitled to the whole of the
residuary estate of his deceased wife, and it was held by the learned judge
that he had no interest in the house in question. The point which counsel for
the defendant seeks to take in the present case, however, was not taken in
that one; no reference was made to the Intestates’ Estates Act, 1952, perhaps
because the gentleman in question was not a party to those proceedings, but
the learned judge referred at considerable length to the decision of the Privy
Council in Comr of Stamp Duties v Livingston, and the conclusion at which
he arrived is summed up in the last passage of the quotation from Viscount
Radcliffe’s opinion ([1964] 3 All ER at p 700) made by Plowman J ([1965]
1 All ER at p 786) which was in this form:
41

“Therefore, while it may well be said in a general way that a residuary legate
has an interest in the totality of the assets (though that proposition in itself
raises the question what is the local situation of the ‘totality’), it is in their
lordships’ opinion inadmissible to proceed from that to the statement that
such a person has an equitable interest in any particular one of those assets,
for such a statement is in conflict with the authority 332 of both Lord
Sudeley v. A-G and Barnardo’s Homes v. Income Tax Special Comrs and is
excluded by the very premise on which those decisions were based.”

That is a general statement of principle, and if a residuary legatee who has

some sort of interest in the totality of the assets cannot be said to have a
particular interest in a particular asset, it must be equally true that a
surviving spouse who has a particular sort of interest in the matrimonial
home, conferred by the Intestates’ Estates Act, 1952, also, by parity of
reasoning, has no equitable interest in that asset of the deceased’s estate
recognisable by the law. Indeed, I do not think that counsel for the
defendant submits that his client has anything which the law could recognise
as an equitable interest in this house. What he says is that she has a
sufficient locus standi to defend this action. I do not understand what sort of
locus standi she can have unless it is based on some interest which the law
recognises in property and so far as she herself is concerned I think that the
submissions made by the plaintiff on this application are sound that the the
defence does not disclose a sufficient ground of defence of the action. The
case is unusual, however, in this respect, that at present there is no one who
can defend the rights, if there are rights, of the estate of the deceased in
respect of this house as against the claim of the plaintiff—at any rate unless
the court were to appoint someone for the purposes of this action to
represent that estate. Nobody has suggested that course should be taken, but
there is an application on foot with a view to obtaining a grant to the Official
Solicitor limited to defending this action, and if such a grant were made it
would be open to the defendant to apply in these proceedings to have the
Official Solicitor added as a defendant to protect those interests, whatever
their proper nature or description may be, which she has in the property as
the widow of the deceased.
In the circumstances the best course for me to adopt is the one suggested by
counsel for the defendant, namely, that I should make no order on the
present summons at the present time but stand it over until one month after
either a grant of administration has been made to the Official Solicitor or the
42

proceedings with a view to obtaining that grant have been otherwise

disposed of: provided that those proceedings are pursued with due diligence
meanwhile. Accordingly, I propose to stand over the summons which asks
for the defence to be struck out, until that time. Then it will be open, and I
give liberty, to restore this summons if and when any application is made to
add the Official Solicitor as a defendant.
Summons stood over.
Solicitors: Coward, Chance & Co (for the plaintiff); P R Kimber (for the
defendant).
Jenifer Sandell Barrister.
333
[1965] 3 All ER 334