[succession, heir’s liability for ancestor’s debts – reception of English law, statute law]

[Creditor] v. Fletcher

Supreme Court of Van Diemen’s Land, In Banco

Pedder C.J. Montagu J., 2 and 4 March 1842

Source: Hobart Town Advertsier, 4 and 8 March 1842

March 2, 1842 – Sittings in Banco.

            Two or three motions were made, when Mr. Stephen rose to move for an order for the payment of certain monies due to a creditor, viz, Fletcher, heir at law, out of a real estate. The learned counsel contended that by the British statute, which extended to this colony, real property was liable, as in England to pay the ancestor’s debts. If it descended to the heir, the heir was bound to pay - if it was otherwise devised, the devisees were liable. The heir was liable for his ancestor’s debts without being specially bound to pay them. By the statute lst Wm. IC, cap. 47, it was clearly inferred by creating a distinction where the debts to which the heir was specially liable were to be paid first, and the others afterwards.

Mr. Justice Montagu enquired why, if the creditors stood in the same position, any distinction should be made.

Mr. Stephen said the object of the statute was to give the certain parties priority, and at the same time to give creditors by simple contract the benefit of payment.

The Court enquired whether any cases could be cited it favor of the point.

Mr. Stephen replied that he recollected a case at Sydney in 1828, that of Terry v Mehan, in which real had been converted into personal property - and in which the action was against the executors. In which case the court held that the estate was liable to a claim for simple contract debt. It was arranged that the arguments should stand over till Friday (this day) to allow Mr. Stephen time to search for authorities.

March 4, 1842 – Sittings in Banco.

            Mr. Stephen, in the case of ------- v Fletcher, an infant, cited several authorities in support of his motion for an order to pay a certain debt out of the real estate of the debt. But Mr. Justice Montagu refused to give any opinion until he had properly considered the matter. The case, His Honor said, was novel and important, and he was not prepared with an opinion satisfactory to himself, as he had no doubt the decision of the court, if favourable to the motion, would be extensively acted upon. A judge was bound to give his reasons for an opinion, that they might be canvassed by the public. The delay arose from not bringing the matter before the Court at an earlier period of the term. Had it been the case, it would have been his duty to consider the matter and give his opinion, as it was, the motion must stand over until next term.