The National Assurance Company v Scott

• Jurisdiction: Ireland
• Judgment Date: 21 December 1908
• Date: 21 December 1908
• Docket Number: (1907. No. 781.)
• Court: Chancery Division (Ireland)

The National Assurance Co.

and

Scott.

Barton, J.

(1907. No. 781.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1909.

Company — Administration of shareholders' estate — Action for calls after administration by the Court — Contingent debt — Pecuniary and residuary legatees — Liability — Following assets.

Held, (1) that the Company was not precluded from recovering the amount of the calls from the pecuniary legatees; (2) that as the estate of the deceased shareholder had been distributed by the Court, the claim (being an equitable one) should be granted upon the terms that the residuary estate, being the primary fund for payment, should be resorted to in the first instance, and that the pecuniary legatees should be liable, if and in so far as the residuary estate might be insufficient for the purpose of meeting the plaintiffs' claim.

Gillespie v. Alexander (3 Russ. 130) and Greig v. Somerville (1 R. & M. 338) distinguished.

Trial of Action.

Miss Annie Callwell, late of 25 Herbert Place, Dublin, was at the time of her death (2nd March, 1904) the registered holder of 300 shares of £25 each in the plaintiff Company. A sum of £2 10s. per share had been paid up originally in respect of these 300 shares of £25 each, and a further sum of £2 10s. in respect of 100 of the shares had been voluntarily paid by her in advance of calls in response to a circular from the Board of Directors.

By her will, dated the 17th February, 1898, Miss Callwell, after reciting that she was possessed of (among other property therein mentioned) certain railway stock and bank and other shares, including shares in the plaintiff Company, and after making a number of specific and charitable gifts and bequests, bequeathed to the defendant Edith Lucy Nugent the sum of £1500 (free of legacy duty); to the defendant Elizabeth Sarah Nugent the sum of £1500 (free of legacy duty); and the residue of her personal estate in equal moieties to the defendant Annie Sidney Scott and the defendant Catherine Scott, whom she appointed her residuary legatees. Annie Sidney Scott and William Smith were appointed executrix and executor, respectively, by her will.

Miss Callwell died on the 2nd March, 1904, and probate of her will was granted to William Smith, power being reserved to make a like grant to Annie Sidney Scott, the other executor named in the will. The gross value of the personal estate was sworn for the purposes of estate duty at £6301 15s. 9d.

After probate had been granted, an action for the administration of the estate of Miss Callwell was commenced by originating summons in the Chancery Division (Master of the Rolls) of the High Court of Justice in Ireland, in which the defendant, Catherine Scott, one of the residuary legatees and one of the defendants in the present action, was plaintiff, and William Smith, the executor, was defendant. The primary decree was made on the 6th March, 1905, which directed the taking of the usual accounts, of personal estate, debts, and legacies; an inquiry as to the outstanding personal estate; and that the personal estate should be applied in due course of administration. The defendants Edith Nugent and Elizabeth Nugent entered appearances and attended at Chambers at the taking of accounts and inquiries. The certificate of the Chief Clerk was made up on 3rd June, 1905.

By his certificate the Chief Clerk found that there were no debts remaining unpaid; that the two legacies of £1500, with interest thereon, were payable to the two defendants Edith Lucy Nugent and Elizabeth Sarah Nugent; and that part of the outstanding estate consisted of 100 shares of £25 each, £5 paid, in the National Assurance Company, standing in the name of the testatrix, and 200 shares, £25 each, £2 10s. paid, in the said National Assurance Company, standing in the name of testatrix.

By the order on further consideration, dated the 26th June, 1905, made by the Master of the Rolls, it was ordered and directed (inter alia) as follows:— That the said William Smith should lodge in Court a cash balance of £616 3s. 8d., ascertained to be in his hands, and lodge in Court £3960 19s. 3d. New Consols, standing in his name, and that the legacies bequeathed by the will, which included the pecuniary legacies bequeathed to the defendants Edith Lucy Nugent, Elizabeth Sarah Nugent, and Annie Sidney Scott, should be paid out of the said cash balance and the proceeds of the said New Consols and the dividends thereon, should the same prove sufficient for that purpose. The order then proceeded as follows:— “And it appearing that there is no further claim on the assets of said testatrix, and the two residuary legatees under her will so consenting, It is ordered that the said William Smith shall divide the railway stock, National Assurance Company's shares, and the shares in Hugh Moore & Alexanders, Ltd., equally between the two residuary legatees under the said will; and that the said William Smith do make all such transfers and do all such acts as may be necessary for the carrying out of the aforesaid direction;…and in the event of there being any surplus remaining of such funds in Court, same to be divided equally between the two residuary legatees.”

On 24th July, 1905, an allocation order was made. The solicitor for Edith Lucy Nugent and...