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Decisions of the Superior Courts of New South Wales, 1788-1899

Hosking v. Rosetta Terry and others (1840) NSW Sel Cas (Dowling) 985; [1840] NSWSupC 50

succession, Terry, Samuel, estate of

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, in Banco, 19 September 1840

Source: Sydney Herald, 21 September 1840

J. Hosking and others v. Rosetta Terry and others. - This was a bill filed by legatees against the executors of the will of Samuel Terry, deceased, praying for a discovery of the assets of the testator, and for general relief.  The defendants pleaded, in bar of the whole bill a release under seal executed by the plaintiffs touching and concerning the administration of the estate of the testator.  On the 21st of August, 1840, the cause came on for hearing before Mr. Justice Willis, sitting alone in equity, when His Honor ordered the plea of the defendants to stand for an answer, with liberty to the defendants to except thereto.  Whereupon the defendants being dissatisfied with this order, applied under the twenty-eighth rule of practice, in the equity branch of the Court's jurisdiction, by petition in vacation to the Judges to have the case argued by counsel before the whole Court in term.  An order for that purpose was made by two of the Judges on the petition, without requiring the grounds for impugning the decision of the single Judge to be set forth.  The defendants then served a notice on the plaintiffs that on the first day of this term they would argue against the order of the single Judge, that the plea pleaded was a good and valid bar both to the relief and discovery prayed, and ought to be allowed by the Court as such bar; and that the Courts would accordingly be moved to allow the same, or to make such order as would enable the Court to pronounce final judgment thereon.  When the motion came on a preliminary objection was made to the petition, on which the order for hearing the case before the full Court was made, for not setting forth the grounds of dissatisfaction with the decision of the single Judge; but a majority of the Judges held that as the petitioners had complied with the very terms of the first branch of the twenty-eighth rule, the grounds of dissatisfaction need not be stated to entitle a party to have his case heard before the full Court.  The case was accordingly heard before the full Court, and now came on for judgment.

            The CHIEF JUSTICE said - I am of opinion that the order made before Mr. Justice Willis directing the plea of the defendants, J. T. Hughes and Esther, his wife to stand for an answer, with liberty for the plaintiff, to except thereto, ought not to be disturbed.  It was broadly admitted by the learned counsel for the defendants that the question for the Court to determine was, whether the bill, as now framed, though it did not directly and in terms charge fraud, entitled the plaintiffs to anything but the naked plea of a release.  This, it must be borne in mind, is a bill filed against executors and trustees, a class of parties who are peculiarly and emphatically liable to the cognizance of a Court of Equity for the due administration of their functions.  The plaintiffs bring themselves legatees and also deriving an interest as representatives of other legatees under the Testator's will, charge by their Bill, that the defendants possessed themselves of the personal estate of the Testator to a very considerable amount, and more than sufficient to discharge his just debts, funeral expenses, and legacies; that they have frequently applied to the defendants, to come to a fair and just account of the personal estate of the Testator, and to apply the same in a course of a administration, and to dispose of the surplus according to the will, but defendants combining &c., and contriving to wrong and injure plaintiffs absolutely refuse to comply with their request, pretending sometimes that the estate was inconsiderable, and not sufficient to pay Testator's just debts and funeral expenses.  Whereas plaintiffs expressly charge the contrary, and so it would appear if defendants would set forth a full account of the estate coming to their hands, and of the manner is which they had applied the same which they had refused to do; that J. T. Hughes was largely indebted to the Testator at the time of his death, in the sum of £4000, and a large arrear of interest in the say of mortgage, and that he had possessed himself, and now retains possession of the mortgage deeds, and refused to give them up to his co-executors, or to render any account thereof, or pay, or render any account of the said sum and interest so due and owing.  That there was also due to the Testator at the time of his death, divers sums (enumerated) by way of mortgage from divers persons named; which the defendant Hughes, has since the Testator's death possessed himself of, and refuses to deliver the same to his co-executor, and pretends that the sums so due on those mortgages have been paid, but in what manner he refuses to discover.  That Hughes amongst other sums due to the estate has received from Mr. S. M. Burrows £610 13s, due on mortgage to the Testator but he (Hughes) has n otpaid[sic] the sum to the account of the estate, or rendered any account thereof to his co-executors; that his co-executors on being applied to by plaintiffs to call him to account, refuse so to do, pretending that they have no power to comply with such request, whereas plaintiffs charge the contrary, and that the several sums, of £4000, £150, £241, £500, £610 13s, and interest due thereon respectively are assets in the hands of the defendants, the executors and that the defendants are accountable, and answerable for the same; that divers large sums were due to the testator upon mortgage securities, at the time of his death, and plaintiffs have applied to defendant to come to an account for said mortgage debts, [but ?] they have refused to comply with such requests, pretending that the mortgaged premises at the time of Testator's death had become part of his real estate, and they were therefore not accountable for the same as personal estate, whereas plaintiffs charge the contrary, and lastly, the Bill charges that the defendants have now or had lately in  their possession &c. divers deeds &c. relating to the personal estate of the Testator, and whereby if produced the truth of the matters charged would appear, but they refuse to discover the same.  The question then is whether the defendants naked plea of release, without any averments negating the matters thus charged in the Bill, or setting forth the consideration of the release is in equity a bar to the discovery prayed.  It cannot be denied that the Bill is sufficiently meagre and defective in those particulars which are especially proved in a Bill of discovery against executors.  Doubtless we are to confine ourselves to such matters only as appear upon the record, but it is singular that the plaintiffs make no allusion to the existence of the release pleaded by the defendants, and if it could be impeached on the ground of direct fraud it is probable that this would have formed a prominent feature in the Bill.  If fraudulent the more correct course would have been to file a Bill to set it aside on that ground, but we are now to deal with the case upon the Bill as it stands.  The facts alledged in the Bill are certainly by no means so strong as those in the case of Roche v. Mo[r]gel, Sch and Lef 728.  In which there was a direct charge of fraud and unfair dealing, but still there is enough shown to entitle the plaintiffs to a discovery; the asked plea of a release will be no bar.  There is in this Bill a direct charge that the defendants have possessed themselves of the personal estate of the Testator, in a very considerable amount, and much more than sufficient to discharge his just debts, funeral expenses and legacies; and that plaintiffs have frequently applied to them to come to a fair and just account of the same, but which they have refused to do; and the plaintiffs charge the defendant Hughes, with the receipt of divers large sums of money since the Testator's death, which he had not paid to the account of the estate, or rendered any account thereof to his co-executors.  Now does the defendants naked plea of a release, without negativing these charges, or setting forth the consideration operate as a bar to the discovery now sought?  It may be that the release is not founded in fraud, but still the defendant is bound to shew the reconsideration, before it will operate as a bar to the discovery.  It is a settled maxim, that in pleading a release the consideration must be set out (Hard. 168 2. Vez. 107. Gilb. For. Rem. 57) or otherwise it will be held to have been made without sufficient consideration for the statement in the Bill being taken fo[r] true, the demand is acknowledged to be just and then a release would not be a good bar, unless the consideration were equivalent.  Another settled maxim in equity pleading is, that if any one of the general averments admits of an intendment unfavourable to the defendant, such intendment must be excluded by a particular averment; a plea requires positive averment negativing the matter charged, and if it does not it must be taken to be an acknowledgement of the ground of impeachment to the bar; in this case the release would be no bar unless the consideration is shown, and if not shown then it must be taken prima facia to be fraudulent then the defendant, instead of grappling with, and negat[i]ving the grounds argued for relief, contents himself with pleading nakedly a release.  It was competent to him if he could, to have set out by negative averments the consideration for the release and then plead the release, if true; he might have averred that the plaintiffs by reason of the intricacy of the testator's accounts, or other causes, it was argued on all hands, that each of the legatees should consent to take a sum certain, without waiting for the delay and trouble of winding up the accounts, and so release the executors from all further liability to accounts.  But here no consideration is shown to bar the plaintiffs from the prima facia irrefragable right to a discovery.  The abstinence of the defendant in not negativing the matters of the bill, or showing under what circumstance the release was executed imports in equity that the release is fraudulent.  The substance of the bill, is that the defendants have not justly and truly administered the testator's effects.  How is this met?  Why, simply by a pleas, that in consideration of the defendants having justly and duly distributed the personal estate of the testator, and paid the legacies bequeathed by him; which they the plaintiffs thereby acknowledged, and which legacies were in fact so paid, but with out any averment, that in fact they had justly and duly distributed the estate.  The plaintiffs released the defendants from all further liability, assuming the release to be good; there is here at all events no averment co-extensive with the consideration, part of which was, that they had justly and duly distributed the estate.  The Bill charges in substance that the estate has not been justly and duly distributed because Hughes had received divers large sums of money of the testator, which he has not accounted for, and refuses so to do.  The consideration for the release not being truly set out, we are bound to intend that it was executed without a sufficient consideration, and consequently it is no bar to the discovery sought; it appears to me therefore that the plea must be treated as an answer with liberty to the plaintiffs exept[sic] thereto.  I have carefully read the cases cited on both sides, but I find the principles, on which this point is to be decided, so well settled, that I do not think it necessary to enter into any elaborate reference to them.  The object of this Bill is to seek a discovery of the consideration of the release, the release may turn out to be good, but still the plaintiffs have at present an indefeasable right to call the executors of the Testator account and shew the circumstances under which they claim to be discharged.

            Judge Stephens having concurred in the opinion of the Chief Justice, the previous order of Judge Willis was affirmed with costs.

Source:  Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464, p. 137

[p.137]

[1840

Sept 19h]

                                                              In Banco - Equity

                                                                      Present.

                                                             Sir J. Dowling C.J.

                                                                      Willis J.

                                                                 A. Stephen J.

                                                                           =

            J. Hosking et ux v. Rosetta Terry & others.

            This was a Bill filed by Legatees against the executors of the will of Samuel Terry deceased, praying a discovery of the administration of the assets & also for general relief of the Testator.  The Defts pleaded in Bar of the whole Bill a release under seal, executed by the Plfs touching & concerning the administration of the estate of the Testator.  On the 21st August 1840 the cause came on for hearing before Mr Justice Willis sitting alone in Equity, when His Honor ordered the plea of the Defts to stand for an answer with liberty to the Plfs to except there to where upon the Defts being dissatisfied with this order applied under the 28th rule of Practice in the Equity Branch of the Courts jurisdiction; by Petition in vacation to the Judges, to have the [p.138] case argued by Counsel before the whole court in Term.   An order for that purpose was made by two of the Judges on the petition requiring the grounds for impugning the decision of the Singe judge to be set forth.  The Defts then served a notice on the Plfs that on the first day of this term they would argue against the order of the singe Judge, that the plea pleaded was a good and valid Bar both to the relief and discovery prayed and ought to be allowed by the Court as such Bar, & that the Court would accordingly be moved to allow the same, or to make such order as would enable the Court to pronounce final judgment thereon.

            When the motion came on, a preliminary objection was made to the Petition on which the order for hearing the case before the full court was made, for not setting for the  the [sic] grounds of dissatisfaction with the decision of the single Judge; but a majority of the Judges held, that as the Petitioners had complied with the very terms of the first Branch of the 28th rule, the [p.139] grounds of dissatisfaction need not be stated to entitle a party to have his case heard before the full Court.  The case was accordingly heard before the Full Court.

            I am of opinion that the order made by Mr Justice Willis, directing the plea of the Defts J.T. Hughes, & Esther his wife, to stand for an answer with liberty for the Plfs to except thereto, ought not to be disturbed.

            It was broadly admitted by the learned Counsel for the Defts that the question for the Court to determine was, whether the Bill as now framed though it did not directly & in terms charge fraud, entitled the Plfs to anything but the naked plea of a release.

            This, it must be borne in mind, is a Bill filed against Executors & Trustees, a class of parties who are peculiarly and emphatically liable to the cognizance [sic] of a Court of Equity for the due administration of their functions.

            The Plfs being themselves legatees and also deriving an interest as representatives of other [p.140] legatees under the Testators will charge by their Bill, that the Defts possessed themselves of the personal estate of the testator to a very considerable amount, & more than sufficient to discharge his just debts, funeral expenses & legacies, - that they have frequently applied to the Defts, to come to a fair & just account of the personal estate of the testator, & to apply the same in a course of administration, & to dispose of the surplus according to the will, but Defts combining &c. & contriving to wrong & injure Plf absolutely refuse to comply with their request, pretending sometimes that the estate was inconsiderable & not sufficient to pay testators just debts & funeral expenses, whereas Plf's expressly charge the contrary & so it would appear if Defts would set forth a full account of the estate coming to their hands & of the manner in which they had applied the same, which they had refused to do.-  That J.T. Hughes was largely indebted to the testator at the time of his death, in the sum [p.141] of 4000£ & a large arrear of interest by way of mortgage, & that he had possessed himself & now retains possession of the mortgage deeds & refused to give them up to his co-executors, or to render any account thereof, or pay or render any account of the said term & interest so due & owing.-  That there was also due to the testator at the time of his death divers sums (enumerated) by way of mortgage from divers persons named, which the Deft Hughes has since the testators death possessed himself of, & refuses to deliver the same to his co-executors, & pretends that the sums so due on those mortgages have been paid, but in what manner he refuses to discover.  That Hughes amongst other sums due to the estate has received from one S.M. Barrows £610.13 due on mortgage to the testator, but he, Hughes has not paid the same to the account of the estate or rendered any account thereof to his co-executors, - that his co-executors upon being applied to by Plf to call him to account refuse so to do pretending that they have no power to comply with [p.142] such request whereas Plf charge the contrary; & that the several sums of 4000£, 150£, 241£, 500£, £610.13. & interest due thereon respectively are assets in the hands of the Defts the executors & that the Defts are accountable & answerable for the same.  That divers large sums were due to the testator upon mortgage securities at the time of his death & plfs have applied to Defts to some to an account for said mortgage debts, but they have refused to comply with such requests, pretending that the mortgaged premises at the time of testator's death, had become part of his real estate countable for the same as personal estate, whereas Plfs charge the contrary, & lastly, the Bill charge that the Defts have now or had lately in their possession &c. divers deed &c relating to the personal estate of the Testator, & whereby [p.143] if produced the truth of the matters charged would appear but they refuse to discover the same. -

            The question whether the Defts naked plea of release without any apt averments negating the matters thus charged in the Bill, or setting forth the consideration for the release is in Equity a Bar to the discovery prayed?

            It cannot be denied that the Bill is sufficiently meagre & defective in those particulars which are usually found in a Bill of discovery against executors.  Doubtless we are to confine ourselves to such matters only as appear upon the record, but it is singular, that the plfs make no allusion to the existence of the release pleaded by the Defts, and if it could be impeached on the ground of direct fraud it is probable that this would have formed a prominent feature in the Bill.  If fraudulent the more correct course [p.144] would have been to file a Bill to set it aside on that ground; but we are now to deal with the case upon the Bill as it stands.  The facts alleged in the Bill are certainly by no means so strong as those in the case of Roche v Morgal, Sch. & Lef. 720 in which there was a direct charge of fraud & unfair dealing, but still if there is enough shewn to entitle the plfs to a discovery the naked plea of a release will be no bar.-

            There is in this Bill a a [sic] direct charge that the Defts possessed themselves of the personal estate of the testator, to a very considerable amount & much more than sufficient to discharge his just debts, funeral expenses & legacies, & that plf's have frequently applied to them to come to a fair & just account of the same, but which they [p.145] have refused to do & the plfs charge the Deft Hughes with the receipt of divers large sums of money since the testators death, which he has not paid to the account of the estate, or rendered any amount thereof to his co-executors.  now does the Defts naked plea of a release, without negativing these charges, or setting forth the consideration operate as a Bar to the discovery now sought?  It may be that the release is not founded in fraud, but still the deft is bound to shew the consideration, before it will operate as a Bar to the discovery.  It is a settled maxim that in pleading a release the consideration must be set out (Hard. 168. 2. Vez. 107 Gilbtor. Rom. 57) or otherwise it will be intended to have been made without a sufficient consideration, for the statement in the Bill being taken true [p.146] the demand is acknowledged to be just; & then a release would not be good bar, unless the consideration were equivalent.  Another settled maxim in Equity pleading is that if any one of the general averments admits of an intendment unfavorable [sic] to the Deft, such intendment must be excluded by a particular averment.  A plea requires positive averments negativing the matter charged & if it does not, it must be taken to be an acknowledgment of the ground of impeachment to the Bar.  In this case the release would be no bar unless the consideration is shewn, & if not shewn, then it must be taken prima facie to be fraudulent.  Here the Deft instead of grappling with & negativing the grounds argued for relief, contents himself with [p.147] pleading nakedly a release.  It was competent to him of he could, to have set out by negative averments the consideration for the release, & then plead the release.  If true he might have averred that the Plf, by reason of the intricacy of the testators accounts or other cause it was agreed on all hands that each of the legatees should consent to take a sum certain, without waiting for the delay & trouble of winding up the accounts, & so released the executors from all further liability to account.  But here no consideration is shewn to bar the Plfs from the prima facie irrefragable right to a discovery.  The abstinence of the Defts in not negativing the matters of the Bill, or shewing under what circumstances the release was executed, imports in Equity that the release is fraudulent.  The substance of the Bill is, that the Defts have not justly & truly [p.148] administered the testators effects.  How is this met? - Why simply by a plea that "in consideration of the Defts having justly & truly distributed the personal estate of the testator, & paid the legacies bequeathed by him, which they the Plfs thereby acknowledged, & which legacies were in fact so paid", - but without any averment, that in fact they had justly & duly distributed the estate, - the Plfs released the Defts from all further liability.  Assuming the release to be good, there is here at all events no averment co-extensive with the consideration, part of which was, that they had justly & duly distributed the estate.  The Bill charges in substance that the estate has not been justly & duly distributed, because Hughes has received large sums of money of the testator which he has [p.149] not accounted for & refused so to so.  The consideration of the release not being truly set out, we are bound to intend that it was executed without a sufficient consideration, & consequently it is no bar to the discovery sought.  It appears to me therefore that the plea must be treated as an answer with liberty to the Plfs to except thereto.  I have carefully read the cases cited on both sides, but I find the principles on which this point is to be decided so well settled, that I do not think it necessary to enter into any elaborate reference to them.  The object of this Bill is to seek a discovery of the consideration for the release.  The release may turn out to be good, but still the Plfs have at present an indefeasible right to call the executors of the testator to account, & shew the circumstances under which they claim to be discharged.-

            Plf entitled to his costs when pleas stands for answer

2 Mad 245 Howland. Butcher in point.

            [p.150] Stephen J. same opinion

            Willis J. S.O.

            Order of Willis J. to stand with costs.

Published by the Division of Law, Macquarie University