The case of Byrn versus Godfrey

1798. BYRN v. GODFREY (3).

JOHN CREE, being possessed of a considerable estate, by his will, dated the 20th of October, 1795, but which was not executed as is by law required to pass real estates, directed that all his estates real and personal should be converted into money, and be placed out upon landed security; and that the issues and profits thereof should be disposed of, &c.; and amongst other bequests the testator gave to John Byrn the sum of 100l. per annum for his life in half-yearly payments at Christmas and Midsummer, with remainder to his daughter Caroline Byrn for her life after John Byrn's decease.

The testator died in November, 1795. Upon the bill of David Godfrey and James Archdekin, the acting executors of the testator, a decree was made in Michaelmas Term, 1796, directing the usual accounts. In May, 1697 [sic, but obviously 1797], John Byrn on behalf of himself and his infant daughter filed this bill against the executors; praying an account of what was due to the Plaintiff John Byrn in respect of the annuity bequeathed to him, and that the Defendants may be decreed to pay what shall appear to be due; and that the future payments may be secured; that an account may be taken of the personal estate of the testator; and that the Defendants may be decreed to deliver up to the Plaintiff John Byrn the promisory note, mentioned in the bill, to be cancelled, and be restrained from commencing any action upon the same.

The promisory note, as to which the relief was sought, was given by the Plaintiff to the testator, dated the 8th of November, 1793, for 200l.; which the testator had lent to the Plaintiff; and the bill charged, that the testator in his life-time acqitted and discharged the Plaintiff from the payment of the said note; and never received or demanded any interest on it; never demanded or intended to receive the principal; and a few months before his death, he told the Plaintiff, who then offered to pay the note, that he should never call either for the principal or interest due on it; and that it should be considered as satisfied; and that he could not then give it up, because it was in London at his banker's.

The bill also charged, that the testator the day before his death prepared instructions for his will at the house of the Defendant Archdekin; and then stated to the said Defendant an account of his property; and in making memorandums of the amount he mentioned the said note; and informed the said Defendant, that the said note was not to be accounted part of his property; as he never meant to demand it; and that the said debt should never appear against the Plaintiff; or to that effect; and the testator frequently upon other occasions declared in the hearing of the said Defendants, who were also executors of his former will, and of divers other persons, that he never meant to demand payment of the said note; and that the same should never be enforced against the Plaintiff, or to that effect.

The Plaintiff however having no evidence in support of these charges, the cause was heard on bill and answer.

The Defendants by their answer stated, that they knew nothing of the conversation between the Plaintiff and the testator, as stated by the bill; and that they believed, the assets of the testator would be by no means sufficient for the payment of the legacies and annuities given by the will. The Defendant Godfrey stated, that he never had any conversation with the testator, nor ever heard him make any declaration concerning the said debt so due from the Plaintiff.

The Defendant Archdekin admitted, that the testator frequently declared to the Defendant, and in his presence and hearing, that he never meant to call upon the Plaintiff for the 200 l. he had lent him on his note; and the Defendant stated, that he particularly remembered, that on the day before the death of the testator, while he was writing down instructions for a new will at the house of the Defendant, that the said John Byrn was his particular friend; and as he had a large family, he the said testator would not on any account distress him by calling on him for the money, he had lent him; or to that effect.

By a farther answer the Defendant Archdekin stated, that the testator was on the day preceding his death at the Defendant's house; and on being questioned by the Defendant what he was so attentively committing to paper the testator answered, that he was making out a statement of the amount of his fortune, as a preparatory step towards enabling him to give proper directions to Mr. Claridge for a new will; as he had altered his former testament; of which this Defendant had been also appointed one of the executors; that at such, time, as aforesaid, and on several previous occasions the testator declared, that he never meant to call on the Plaintiff for the sum of 200 l., which he owed him on his note of hand; as a very long and most intimate friendship had subsisted between the Plaintiff and the testator; and moreover as the Plaintiff had a large family, and was in circumstances proportionably narrow: but the Defendant does not remember or believe, that the testator did ever inform him, that the said note was not to be accounted part of his property; or that he intended to cancel it; or that the said debt should never appear against the Plaintiff: yet the Defendant from what he had heard the testator say, as well on the day preceding his death as on other days, (the particulars of which the Defendant has hereinbefore set forth,) inferred, that the testator did not at the time of such conversations mean, that the said note should be considered as any part of his property,

Mr. Mansfield and Mr. Romilly. for the Plaintiff.

Wekett v. Raby, 3 Bro. P. C. 16, is a stronger case than this. The Defendant admits language in the strongest terms expressing the sense of the testator, that the Plaintiff should not be called upon for payment of the note; as a very long and intimate friendship had subsisted between them: and the Plaintiff had a large family, and was in narrow circumstances. The Defendant Archdekin also admits, that he understood, the testator did not mean, that this note should be considered as any part of his property. Richards v. Syms, 2 Eq. Ca. Ab, 618. Barnard, C. C, 90, and also reported in 2 Atk. 319 upon a motion for a new trial, is a direct authority. That was a release without consideration; which probably will be the ground of opposition in this instance. Lord Hardwicke there relies upon the circumstance, that the mortgagee said, the mortgagor might keep the deeds; which he considered as equivalent to delivering them up.

1798
June 22nd.
Notwithstanding declarations of the testator to his executor, that he never meant to call for payment of a promisory note, it was held part of the assets; which were insufficient for the legacies; a charge on the real estate failing for want of a proper attestation of the will.

Lord Chancellor.

The case of Aston v. Pye (1) before Lord Kenyon at the Rolls upon Sir Thomas Pye's will was exactly like this. Sir Thomas Pye had made an entry in his book, that he had taken a note; that he never intended, it should be made use of against the debtor, unless he himself should want it. In that situation he died, having disposed of his personal property. Lord Kenyon sent it to the Court of Common Pleas to see, whether we could make a release of it. That failed. An idea was thrown out, that they might prove it in the Ecclesiastical Court. I believe, that also failed. The difficulty is, what you can make of it unless you can make it a release. I do not see, how I can consider it as otherwise than as part of his assets.

Attorney General and Mr. Leach, for the Defendant.

In the case in Bro. P. C. the reasoning goes upon this; that it would be a fraud in the residuary legatee to disappoint the intention of the testator. From the express direction to the residuary legatee, her promise, and the acknowledgment of it, it was a breach of trust to put the bond in suit; and the Court interfered on that ground. This executor is not standing for himself. He takes nothing under the will. In the other case cited the mortgagor had some way or other got back possession of the deeds; and he went to return them to the mortgagee: who then desired him to keep them; which Lord Hardwicke thought equal to delivery of the deeds: but the jury did not think the account of the transaction founded. It is very dangerous to admit evidence of these conversations. This must be considered as a release, if any thing. There is not the least colour for it as donatio mortis causa. According to Heathcote v. Crookshanks, 2 Term Rep. B. R. 24, a creditor may recover the debt even against his own promise; and therefore his executor may.

Reply.

There can be no distinction between declarations of the testator to a residuary legatee and to an executor. A creditor surely may forgive a simple-contract debt. This amounts to a release. In Aston v. Pye it was not an absolute release, but in case he should not himself want it. Lord Kenyan thought, evidence ought to have been given, that he was in circumstances not to want it. In this case there is a positive declaration of the testator, that he did not mean, the debt should be called in.

(1) See that case stated, post, Vpl. V, 350, 4, in Eden v. Smith; *l the note, ante, 11I,530.

Lord Chancellor.

This case goes a great deal farther than either of the cases quoted. In the case before Lord Macclesfield the ground, upon which he determined, was very strong; for according to the admission in the answer the testator, at the time he was giving directions, parol directions, about his funeral, held a conversation with his residuary legatee; telling her, Raby had been a particular friend to him, and would be to her; that he had kept the bond, because he might want it himself as much is Raby; but that he did not intend, Raby should pay it. There were other circumstances. Immediately after the death of the testator, when upon examining his papers the bond was found, Raby desired, it should be given up to him. The residuary legatee said, it should not be put in suit. He objected, that it might not always be in her own power; and suggested, that she might marry; and she promised, that in case of her marriage she would give it up the night before her marriage. She did not admit all this: but she admitted the conversation with the testator; and only qualified it thus; that he did not order her to deliver up the bond: but she admitted the declaration of his intention. She did not deny the conversation after the death of the testator; but gave this turn to it; that Raby asked her to give up the bond as a favour; and she stated it as an option in her. From all this the Court had a fair ground to conclude, the case stood exactly according to the representation of the Plaintiff; and being so, the testator talking to a residuary legatee, and that being admitted, so that the Court has sufficient evidence, the residuary legatee will not be permitted to benefit herself of that, which was not given to her. It is very near an undertaking by her to do something, if the will is not changed (2). Therefore the silence is assent on the part of the residuary legatee, and an engagement, which in point of conscience ought not to be broken by her.

(2) Berrow v. Greenough, ante, Vol. III, 152. Other cases of the same sort are collected in the note, pages 38, 39.

The case before Lord Hardwicke is very strong; and I take it he considered it equivalent to a delivery of the mortgage-deed with an intention, that it should never be used. The deeds coming into the possession of the mortgagor, he represents himself as having very honestly offered to deliver them to the mortgagee; who said, "No: keep them: I do not intend to demand the debt." It is very near a delivery of the deed; and if that had been the fact, there is no doubt, the representatives would not be entitled to call it back to put it in suit.

I am afraid of this case; for it really amounts to this: it is setting up the parol declarations of the testator to defeat the will. If it was the case of a residuary legatee, there would be much less difficulty: but here is a will giving particular legacies; and this 200 l. is wanted as assets. According to the account of the Defendant Archdekin, which is, I dare say, a very fair one, at the time, the testator was about to make a will according to the state of his property, which unfortunately he did not execute, he had it in his intention. It is not an actual release at any one given time; so that I can state, that the debt was gone by the act of the person, to whom it was due; nor is it a legacy. If instead of making a new will, they had only attested the existing will, there would have been no deficiency. I wish, I could have decided the other way; for it is clear what the intention was: but the great danger of the case makes it impossible.

Dismiss so much of the bill, as prays, that the note may be delivered up, without costs: as to the residue of the prayer, proceed under the decree in the former cause.

The order of the House of Lords as to the costs in that case before Lord Macclesfield is very singular. It is the only order of the kind, I ever saw. If the principle of Lord Macclesfield's decree is fully adopted, no doubt, his direction as to the costs is perfectly right.

(3) Reports of cases argued and determined in the High Court of Chancery from the year 1789 to 1817, Volume 4, Francis Vesey Jr, London, (2nd ed.) 1827, page 5.