References: [1891] 3 Ch 212
Coram: Kekewich J
Ratio: The court was asked whether in the division of the testator’s residuary estate three of the testator’s seven children had to bring into account statute-barred debts due to the estate.
Held: They were bound to bring them into account. Kekewich J restated the rule in Cherry v Boultbee: ‘A person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it. Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back. That is expanding what the Lord Chancellor calls in Cherry v Boultbee ‘a right to pay out of the fund in hand,’ rather than a set-off.’
This case cites:
- Restated – Cherry v Boultbee HL ((1839) My Cr 442, Commonlii, [1839] EngR 1099, (1839) 4 My & Cr 442, (1839) 41 ER 171)
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested . .
(This list may be incomplete)
This case is cited by:
- Cited – Brazzill and Others v Willoughby and Others CA (Bailii, [2010] EWCA Civ 561, [2010] WLR (D) 140, WLRD)
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . . - Cited – In re Kaupthing Singer and Friedlander Ltd SC (Bailii, [2011] UKSC 48, Bailii Summary, UKSC 2010/0018, SC Summary, SC)
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
(This list may be incomplete)
Last Update: 05 June 2018
Ref: 416576
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