COUNSEL: Leonard Stone for the executors of Caroline Wilson.

A. G. Coulson for the executors of Mrs. Edith Bigsby adopted this argument.

J. V. Nesbitt for the personal representatives of Alexander Hemsley.

 

SOLICITORS: Walter O. Freeman; Samuel Price & Sons; Halsey, Lightly & Hemsley.

 

JUDGE: SIMONDS J.

 

DATE: 1938 Nov. 1.

 

[*235]

 

SIMONDS J. This somewhat important point has been referred to me under Order LV., r. 69. In May, 1937, a petition was presented to this Court by which the petitioners asked for [*236] payment out to them of part of a fund in Court, assenting to part of it remaining in Court for an indemnity to executors against certain liabilities. On the matter coming before me I ordered that an inquiry should be made as to what sum was needed to provide the indemnity required.

 

But on the matter going back to chambers the point was taken that, having regard to lapse of time, no provision was now needed for any indemnity, and this is the question which has been argued before me.

 

The matter stands thus: the fund was paid into Court in 1891 in the administration of the estate of one Mrs. Jemima Lewis under an order by which it was by consent ordered that the defendant Alexander Hemsley, the executor of the testatrix, should be at liberty out of the assets of the testatrix remaining in his hands to raise the sum of 5000£. and the costs thereinafter directed to be paid into Court, the plaintiffs by their solicitor admitting that the defendant was entitled to be indemnified out of the assets of the testatrix against liability in respect of the leasehold hereditaments at Stratford and West Ham, bequeathed by the will of the testatrix to the plaintiff Caroline Wilson. On that it was ordered that the executors should be at liberty to distribute the estate of the testatrix.

 

It further appeared from the order that all parties by their solicitors admitted that all the debts and legacies of the testatrix had been paid and that her estate had been fully and properly administered with the exception of the payment of the further costs therein directed to be paid, and that the accounts delivered by the defendant, including his costs, charges and expenses down to May 25, 1891, were correct. The sum of 5000£. was accordingly paid into Court and the income thereof has since then been regularly paid to the beneficiaries entitled under the will.

 

Now it is urged that the time has come when the representatives of the testator’s estate no longer need any protection or indemnity. In my judgment that proposition is correct. It is established by a line of authorities of which I need cite only In re Nixon (1) and In re King (2) that if a fund

 

(1) [1904] 1 Ch. 638.

 

(2) [1907] 1 Ch. 72. [*237]

 

be paid into Court in such circumstances as those in which this fund was paid, that is done not for the benefit of the lessors, but solely for the indemnity of the executors or trustees so paying it in. The lessor as a possible future creditor has no right to require that such a fund shall be provided. The only question then is whether in 1938 the legal personal representatives of Mrs. Jemima Lewis, who are the executors of her executor the original defendant Alexander Hemsley, need any protection from any possible liability under the leases which formed part of her estate. They have, as was shown by In re Blow (1), a complete answer to any claim that may be made against them in this respect. A distinction has been drawn in some earlier authorities referred to in In re King (2) between cases where there has been privity of estate between the executors and the lessor, and cases where there has not been such privity. But if there is such a distinction, I do not appreciate its importance except that it may be that where there has been privity of estate the executor may have to rely on some other Statute of Limitations than the Statute of James I. and that a longer period may have to elapse before his liability is brought to an end.

 

But whether that be so or not, it is now nearly fifty years since the leaseholds were assigned by the executors and the fund was paid into Court, and therefore the answer to the question whether any and what fund is now needed for the protection of the legal personal representatives of the testatrix is that no fund is now needed.

 

In view of the importance of the matter there should be a pro forma summons taken out raising the question now answered, upon which I will make the declaration that I have indicated; the order for inquiry will be discharged and the petition must be amended and restored.

 

(1) [1914] 1 Ch. 233.

 

(2) [1907] 1 Ch. 72.