COUNSEL: G Maddocks for the plaintiffs, the executors.

H Hillaby for the defendant, a pecuniary legatee.

 

SOLICITORS: Billinghurst Wood & Pope (for all parties).

 

JUDGE: UTHWATT J

 

DATE: 26 February 1943

 

 

Background: The testatrix, Annie Elizabeth Bennett, made her will on 9 May 1936, and two codicils on 17 June 1937 and 7 March 1939, respectively. By her will the testatrix appointed the Midland Bank Executor and Trustee Co Ltd and Samuel Walter Gray to be the executors and trustees thereof, and among the dispositions made by her will were a number of pecuniary legacies and a considerable number of specific bequests of leasehold properties, of which the testatrix was in all cases the assignee and not the original lessee. The testatrix died on 25 July 1939, and probate of her will was obtained on 18 October 1939. The residuary estate was insufficient to pay the pecuniary legacies in full. The executors entered into possession of the aforesaid leasehold properties and assented at various dates to the bequest of all these properties with one exception. The executors took out a summons asking whether or not any fund or funds ought to be set aside by them out of the estate and retained for their indemnity in respect of their liability under the lessees' covenants relating to all or any of the leasehold properties. It was contended for the pecuniary legatees that the executors were not entitled to any indemnity in respect of the properties to which they had already assented.

 

26 February 1943. The following judgment was delivered.

 

UTHWATT J. The executors are not entitled to any indemnity out of the estate in respect of the properties as to which they have assented, but following Re Owers, they are entitled to retain a fund for their indemnity in respect of the property as to which there has been no assent, and an inquiry must be made to ascertain the amount of such fund.