Cowper v Earl Cowper PDF

Preview

Summary

Case for Cowper v Earl Cowper for Equitable Remedies . This focuses on the Maxim Equity follow the law...

Description

All ER Reprints*/[1558-1774] All ER Rep/Cowper and others v Earl Cowper and others - [1558-1774] All ER Rep 216

[1558-1774] All ER Rep 216

Cowper and others v Earl Cowper and others Also reported 2 P Wms 720; 24 ER 930 ROLLS COURT Sir Joseph Jekyll MR

MICHAELMAS TERM, 1734 Evidence – Document – Presumption against person destroying or defacing. Executor – Debt owed to executor – Duty to claim without delay. Will – Construction – Intention of testator – Prevalence over legal operation of words. Administration of Estates – Equitable discretion – Effect of rules of law.

A presumption will arise against a person who is proved to have destroyed or defaced documents and other articles sought to be put in evidence: post p 227.

Per SIR JOSEPH JEKYLL, MR: If there be a decree for an account to which an executor is party and the executor has a debt which be does not claim, but lies by and the account is taken, he shall not bring a new bill for his debt and so put the estate to unnecessary expense: post p 221.

Per SIR JOSEPH JEKYLL, MR: Where, in a will, the intention of the testator is plain his intent shall govern the matter and not the legal operation of the words in the will: post p 224.

Per SIR JOSEPH JEKYLL, MR: Where the law is clear courts of equity ought to follow it in their judgments concerning titles to equitable estates. Otherwise great uncertainty and confusion would ensue, and, though proceedings in equity are said to be secundum discretionem boni viri, yet when it is asked: Vir bonus est quis? the answer is, qui consulta patrum qui leges juraq; servat. The discretion is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to, the other: post p 229.

Notes

Considered: Burgess v Wheate, A-G v Wheate (1759) 1 Eden, 177; Buchanan v Harrison (1861) 1 John & H 662; Bull v Bull, [1955] 1 All ER 253 Referred to: Bagshaw v Spencer (1743) 2 Atk 570; Farr v Newman (1792) 4 Term Rep 621; Craufurd v Hunter (1798) 8 Term Rep 13.

Cases referred to:

(1) Collingwood v Pace (1664) 1 Vent 413; OBridg 410; 1 Sid 193; 1 Lev 59; 86 ER 262; 2 Digest (Repl) 175, 53.

(2) Chudleigh's Case, Dillon v Freine (1594) 1 Co Rep 113 b; Poph 70; 1 And 309; 76 ER 261, Ex Ch; 38 Digest (Repl) 849, 643.

(3) Brown's Case (1581) 4 Co Rep 21 a; 76 ER 911; sub nom Anon, Moore KB 125.

(4) Brudnel's Case (1592) 5 Co Rep 9 a; 77 ER 61; 38 Digest (Repl) 797, 131. (5) Auditor Curle's Case (1610) 11 Co Rep 2 b; 77 ER 1147; 11 Digest (Repl) 662, 859.

(6) Farington's Case [1549], 1 Dyer, 67 a; 73 ER 141; 31 Digest (Repl) 465, 5918.

(7) R and Lord Hunsdon v Countess of Arundel and Lord Howard (1616) Hob 109; 80 ER 258; 20 Digest (Repl) 307, 483.

(8) Gartside v Ratcliff (1676) 1 Cas in Ch 292; 22 ER 807, LC; 20 Digest (Repl) 307, 419.

(9) Hunt v Matthews (1686) 1 Vern 408.

(10) Wardour v Berisford (1687) 1 Vern 452; 23 ER 579, LC; 22 Digest (Repl) 176, 1604.

(11) Countess of Plymouth v Bladon (1687) 2 Vern 32; 23 ER 630; 20 Digest (Repl) 287, 297.

(12) Rooke's Case (1598) 5 Co Rep 99 b; 77 ER 209; 41 Digest (Repl) 65, 417.

(13) Burgess v Wheate, A-G v Wheate, (1759) 1 Eden, 177; 1 Wm Bl 123: 28 ER 652; 47 Digest (Repl) 93, 665. Bill for administration of an estate under a will.

Robert Booth, a freeman of London, seised of a small real and possessed of a large personal estate, had only one child named Judith, who married in her father's lifetime William Cowper, afterwards Earl Cowper, and had issue by him one son named William On 5 July 1690, Mr Booth made his will, whereby, after making provision for his wife in lieu of what she might claim by the custom of London, he recited that he had before given his daughter 5,000 pounds upon her marriage, which he did not intend to be in full of her orphanage part, and, therefore, made a further provision for her in these words:

"I do further give and bequeath 4,500 pounds unto Mr Samuel Powell, upon this special trust and confidence that he shall, with all convenient speed, lay out the 4,500 pounds in the best manner he can in the purchase of lands and tenements of inheritance to be conveyed and settled to him upon the several uses, intents and purposes hereinaftermentioned, that is to say, in trust for and to the use of my son and daughter William Cowper, Esq, and Judith his wife for the term of their lives, and after the decease of my daughter, then to the child or children of her body hereafter to be begotten share and share alike, and for want of such issue, then to my grandson William Cowper and his hairs for ever."

He further by his will charged some annuities upon a leasehold house he had in St Helen's, London, gave several legacies, and devised the small real estate he had to his cousin Thomas Heirdson for life, with remainder over, and then gave all the residue of his estate not before disposed of to his daughter, desiring that what it should amount to over and above the 4,500 pounds might be laid out with the 4,500 pounds to the same end and for the same uses as are in the above recited clause expressed. He made Mr Powell, his wife Mary Booth, and his daughter Judith Cowper, his executors. On 1 November 1690, Mr Booth died, and the three executors joined in the probate of the will, but Mr Cowper (in right of his wife) acted as executor and possessed the personal estate.

On 16 June 1692, Lord Cowper (then William Cowper) executed a declaration of trust whereby, after reciting the will and that he in right of his wife (the heir and residuary legatee of Mr Booth) had received Mr Booth's personal estate (including a mortgage then unpaid on lands in Gloucestershire) assets above all debts and legacies sufficient to answer the 4,500 pounds, and that he had lately purchased an estate at Standon in Hertfordshire for 3,400 pounds, he declared that that estate was bought by him with the money arising out of Mr Booth's personal estate and was to be taken as part of the 4,500 pounds, and that he had taken a conveyance to himself to the intent, that as soon as the whole purchase for the said 4,500 pounds could be completed, he and his heirs would settle and convey the same according to the true intent of the will, or as near as might be at the time of such settlement, and that in the meantime the rents and profits should be received by such persons respectively, as would in right and justice be entitled thereto,

in case such conveyance were made. On 5 July 1697, Lord Cowper executed a declaration of trust. of three-fifths of other lands purchased by him wherein, taking notice that he had deposited the former declaration of trust in the hands of Mr Powell, he declared the trust of the three-fifths of those lands in the same manner as he had declared that of the other lands, and, having sold part of the other lands, he declared that the three-fifths of those lands with the lands unsold of the first purchase, did exceed the value of 4,500 pounds as they did. This declaration was also deposited with Mr Powell, and both were found among his papers, as appears by the answers of his executors. In 1697 or 1698 William Cowper the son died an infant of tender years, and in April 1705, died Judith, the mother.

On 6 November 1722, Lord Cowper made his will, and after subjecting his real and personal estate to divers charges, and to debts and legacies, he devised his real estate to the defendant, the present earl, for life, remainder to his executors as trustees to preserve contingent remainders, remainder to the defendant's first and other sons in tail male successively, and several like remainders to Spencer Cowper his youngest son, and every other son to be begotten, for life, and their first and every other son successively in tail male. He then limited a remainder to his brother Spencer Cowper for life, remainder to the plaintiffs William, John and Ashley Cowper and every after-born son of his brother Spencer Cowper for life, and to their first and every other sons successively in tail male, with proper limitations to trustees to preserve contingent remainders, remainder to the right heirs of the earl. By a codicil of the same date with the will he bequeathed the residue of his personal estate to his executors, in trust to be laid out in the purchase of lands to be settled to the same uses as he before had devised his real estate, and so as they, and all the lands he was then seised of, might go with the honour, and made his brother Spencer Cowper and the defendant Woodford his executors.

On 10 October 1723, Lord Cowper died, soon after which both the executors proved the will, and on November 16 following, they filed their bill against the new Earl Cowper, the late countess, Lady Sarah, Lady Anne and Spencer Cowper (the late earl's younger children) and against William, John and Ashley Cowper, three of the plaintiffs in this cause, in which, Lord Cowper's will being recited verbatim, it was alleged that the plaintiffs were unwilling to meddle with any of the estate except what was of absolute necessity for the funeral and other immediate occasions, but, it being necessary to take some money for those purposes, the plaintiff Spencer Cowper, on 15 October 1723, in the presence of Mr Woodford and Mr Sydenham (the late earl's steward) took out of an escritoire in the earl's house 1,670 pounds in bank-bills On October 20 the plaintiffs went to Colne Green, the earl's house in the country, and in Mr Sydenham's presence, opened a bureau of the earl's, took thereout 187 pounds 12s 6 1/2d which was paid to the countess All the rest of the earl's personal estate remained in the same condition as it was at his death. It being necessary to prove the will per testes, and the plaintiffs being unwilling to execute the trusts thereof without the direction of the court, the bill prayed that the defendants might set out their claims on the real and personal estates of the earl, that the legatees might be paid, and an allowance settled for the maintenance of the present earl, and his other children, that the surplus rents and profits of the whole estate might be disposed of for the earl's benefit, a receiver appointed, the will and codicil proved and established, and the trusts thereof completely executed. On 21 December 1723, the earl, then an infant, answered this bill, and insisted on his being heir-at-law and entitled to the late earl's real estate in case the will was not well proved. On March 13 following, William, John and Ashley Cowper answered, and admitted the will and codicil, hoping the trusts should be fully executed and that the remainders limited to them would be decreed.

On the same day the earl, by his next friend, filed a cross-bill against Mr Spencer Cowper and Mr Woodford, and against his brother and sisters, praying that the defendants might set forth their several claims and demands of what kind or nature soever upon the real and personal estates of the late earl, and might account for them, and that, if the will was duly executed, an execution of the trusts might be decreed according thereto. Mr Spencer Cowper put in his answer the day the bill was filed, and thereby gave the same account as by the original bill of the taking 187 pounds 12s 6 1/2d out of a bureau at Colne Green on October 20, in the presence of Mr Woodford and Mr Sydenham, and that besides that and 1,670 pounds 5s taken out of the house in George Street, and some other particulars set forth in his answer, he had never received any part of the personal estate or meddled therewith; that he had caused an iron chest to be opened in the presence of Mr Woodford and Mr Sydenham, in which were securities, moneys and other things, which chest was locked again with three keys, whereof each of them kept one, that the chest was deposited with him, and remained in the same condition, ready to be delivered as the court should direct; that he believed there might be some few things in an escritoire or chest at Colne Green, whereof he had the key, but knew not the particulars, and desired it might be brought up and delivered as the court should direct, he not intending to intermeddle therewith; that he had no further or otherwise concerned himself with the personal estate, having determined to act as little as possible without the direction of the court; that he could not set out an account of the late earl's real estate, but referred to Mr Sydenham for that purpose and said he was very desirous the trusts of the will should be fully executed, an account taken of the real and personal estate, and the surplus laid out in a purchase, as the will directed, after funeral charges, debts, legacies, and all just demands thereout deducted and paid, in order to which he set out Mr. Booth's will, and stated his claims under it in the same manner as before mentioned, and as was done by the present bill, insisting that his title to the benefit of the trust in Mr Booth's will accrued from the death of Judith the late earl's first wife; that he believed the late earl possessed the real and personal estates of Mr Booth and that the trust had not been fully executed; and, therefore, he insisted "that he was entitled to the real estate of Mr Booth undevised, and to the sum of 4,500 pounds and interest, or to any estate purchased therewith, and to an account of the surplus of Mr Booth's personal estate, with interest from the death of the said Judith; but that he conceived it might be proper by a bill to be preferred by him against Mr Booth's surviving executors and other proper parties, to establish his demand, though he found it necessary to disclose it by way of answer to this bill, which was to discover what demands the defendants had on the late earl's estate; and, therefore, craved leave to reserve to

himself the liberty of proceeding to establish his demand as he should be advised, and saving to himself such his demand, as far as the same should appear just and reasonable, he submitted to the execution of the trusts of my Lord Cowper's will."

Mr Woodford likewise put in his answer, and said that he came to Colne Green on October 13, the Sunday after the earl's death, and, with the concurrence of the countess, Mr Cowper, the present earl, and Lady Sarah, settled and agreed on the manner and charges of the funeral, but took no other notice of what passed there at that time; that on October 15 he attended Mr Spencer Cowper, his co-executor, at George Street where, finding several papers, writings, letters, and accounts, many of which were cursorily passed over by them in the presence of Mr Sydenham, some few principally concerning the testator personally and of no concern or value to his estate, were, as he believed, taken away by Mr Cowper, and in all other respects gave the same account of this transaction in George Street, as was given in the original bill, and in Mr Cowper's answer, saying that the iron chest was removed to Mr Cowper's chambers; that, among other things at the house at Colne Green, the earl had a bureau or cabinet in which were (as he believed) 187 pounds 12s 6d in money, which being on or about October 20 taken from thence, were delivered to Mr Sydenham, and by him (as he believed) paid on account to the countess. The day before either of these answers put in, Mr. Spencer Cowper filed a bill against the present earl, Mr Woodford, and the surviving executor of Mr Booth, and others, to establish his demand.

In May 1724, the present earl was served with the Lord Chancellor's letter and appeared, but was never called upon for an answer. None of the other defendants was served, nor any other proceedings had upon this bill. In the other two causes replications were filed to all the answers, and on 10 July 1724, both causes were heard together, when the late earl's will and codicil were declared to be well proved, and decreed to be performed, to which end an account of the personal, and of the rents and profits of the real, estate was directed, the Master to take an account of the testator's debts and legacies; whom the creditors should attend to make out their debts; that the surplus of the personal estate should be laid out in purchases according to the earl's will, and the surplus profits of the real estate improved for the present earl's benefit.

In pursuance of this decree, on 18 January 1726, the Master, having been attended by solicitors for the plaintiffs and defendants, made a general report of the personal estate which then stood in the name of the late earl or of his executors, or which had been received by Mr Sydenham, who, before the hearing, had by order of the court been appointed receiver of the rents and profits of the real, and of the produce of the personal, estate, in which report the leasehold estate at St Helen's, and the rent of it due at the earl's death, were accounted for as personal estate, as were also the arrears of rent of the estate in Hertfordshire concerning which the trusts had been declared by the earl. Also a bond and note entered into by Mr Booth, were mentioned as outstanding debts due to the earl and as part of his personal estate. On 28 July 1727, the Master, having been attended by solicitors for the plaintiffs and the defendants, as also by the receiver, made another report of his having passed the receiver's accounts of the rents and profits of the real, and of the interest and produce of the personal estate from the earl's death, to Michaelmas, 1726. These accounts comprised the rents of the estate in Westmorland, of the house in London and of the estate in Hertfordshire, and also the interest of the savings of the late earl's estate which had been from time to time invested in securities for the new earl's benefit according to the decree.

On 10 April 1728, the Master made another report of his having passed the receiver's accounts until Michaelmas, 1727, and the succeeding accounts after Mr Spencer Cowper's death were passed in the same manner until the present earl came to age. None of the reports was confirmed, nor was it usual to confirm reports of receivers' accounts, as all except the first were, and as to that, although it is not confirmed in common form, yet the following orders obtained at the instance of Mr Cowper and Mr Woodford were, as His LORDSHIP considered, an implicit confirmation of it, for on 12 November 1724, an order was made on their motion that several sums, part of the earl's estate, then out upon securities, and expected to be paid in, should be placed out in South Sea annuities in their names. On 22 June 1727, there was an order upon their petition to sell the stocks of which the earl's personal estate then consisted and lay out the moneys arising from such sale in purchases. On 8 March 1727, they preferred another petition, reciting the decree, the report of the receivers' accounts, and that they were desirous to improve the savings of the new earl's estates, and had agreed to place out 10,000 pounds on a mortgage, which sum was to be advanced out of the clear produce of the real and personal estate of the earl; that the receiver had, with their approbation, paid 7,000 pounds in part, and would soon have 3,000 pounds more in hand; and that, the decree having only provided for placing out the surplus profits of the real estate, they apprehended it necessary to have an order for placing out and improving the clear produce of the personal estate in the same manner. They, therefore, prayed that the receiver might pay the 3,000 pounds and that the mortgage might be made to them in trust for the earl, and such further sums as from time to time should be saved for the earl out of the personal as well as real estates be placed out at interest and improved for the benefit of the earl in their names. On 13 March 1727, this petition was heard in the presence of counsel for the petitioners and the earl, when it was referred to the Master to see if the security proposed was a good one, and, if so, the receiver was to pay the 3,000 pounds and the mortgage to be made to the petitione...