will annexed, were, in the year 1829, granted to Thomas Reup Dixon and Emily Bond, then the wife of John Bond. In the month of December, 1831, John Bond died, and the appellants are his widow and personal representatives. In October, 1832, and in the following month, Thomas Reup Dixon drew out from Messrs. Child & Co. a sum of money, part of Ann Dixon's estate, which has not been recovered from him, and is lost to the estate; and the question is, whether the estate of John Bond is liable to make good the loss by replacing that sum. His personal representatives, by their answer, admit the joint possession of the property by Thomas Reup Dixon and John Bond, with the consent of Emily Bond, and that the balance was paid into Child's, in the joint names of Thomas Reup Dixon and John Bond; and that it was agreed between them that all drafts should be signed by them both. Some attempt was made in the answer and by the evidence to set up a settlement with Dixon; but the attempt did not succeed in showing any settlement of the demand in question. The ground upon which the plaintiffs support the claim against the estate of Mr. Bond leaves his character for integrity unimpeached; and, if successful, will certainly prove a hard case against those interested in his estate. It is this; that the payment of the money into Child's, in the names of himself and of Mr. Dixon, *was not a correct discharge of the duty which he owed to the estate; and that, as the effect of such payment has been to give Mr. Dixon the control over the fund by which the loss has arisen, his estate is responsible. It will be found to be the result of all the best authorities upon the subject, that, although a personal representative, acting strictly within the line of his duty, and exercising reasonable care and diligence, will not be responsible for the failure or depreciation of the fund in which any part of the estate may be invested, or for the insolvency or misconduct of any person who may have possessed it, yet, if that line of duty be not strictly pursued, and any part of the property be invested by such personal representative in funds or upon securities not authorised, or be put within the control of persons who ought not to be intrusted with it, and a loss be thereby eventually sustained, such personal CLOUGH v. BOND. [ *496 ] CLOUGH 2. BOND. [ *497 ] representative will be liable to make it good, however unexpected the result, however little likely to arise from the course adopted, and however free such conduct may have been from any improper motive. Thus, if he omit to sell property when it ought to be sold, and it be afterwards lost without any fault of his, he is liable: Phillips v. Phillips (1); or if he leave money due upon personal security, which, though good at the time, afterwards fails: Powell v. Evans (2), Tebbs v. Carpenter (3). And the case is stronger if he be himself the author of the improper investment, as upon personal security, or an unauthorised fund. Thus, he is not liable, upon a proper investment in the 3 per cents., for loss occasioned by the fluctuations of that fund: Peat v. Crane (4) ; but he is for the fluctuations of any unauthorised *fund: Hancom v. Allen (5), Howe v. Earl of Dartmouth (6). So, when the loss arises from the dishonesty or failure of any one to whom the possession of part of the estate has been entrusted. Necessity, which includes the regular course of business in administering the property, will, in equity, exonerate the personal representative. But if, without such necessity, he be instrumental in giving to the person failing possession of any part of the property, he will be liable, although the person possessing it be a co-executor or co-administrator: Langford v. Gascoyne (7), Lord Shipbrook v. Lord Hinchinbrook (8), Underwood v. Stevens (1 Mer. 712) (9). Applying these principles to the present case, the inquiry is necessarily confined to two points; first, was the payment into Child's of the money in question, in the joint names of Mr. Bond and Mr. Dixon, a proper mode of deposit; and, if not, secondly, was the loss occasioned by such mode of deposit? Bond had nothing to do with the estate, except as husband of the administratrix. During the coverture he was entitled to interfere in her right; but that authority was determinable with the determination of the coverture. (1) Freem. Ch. Ca. 11. (2) See 14 R. R., pref., p. ix. (5 Ves. 839). (3) 16 R. R. 224 (1 Madd. 290). (5) 2 Dick. 498, In the event, therefore, (6) 6 R. R. 96 (7 Ves. 137). (7) 8 R. R. 170 (11 Ves. 333). (8) 8 R. R. 138 (11 Ves. 252; 16 Ves. 477). (9) And see Hanbury v. Kirkland, 30 R. R. 165 (3 Sim. 265). which happened, of his death before his wife, her authority would remain to be exercised by herself alone, and so she would be enabled to control her co-administrator--a security to the estate of which he had no right to deprive it. By depositing the money in his own name and that of the co-administrator Dixon, he did exclude the administratrix from ever possessing this control, so far as affects the funds in question, and in the event of Dixon's death before him, gave to himself the absolute power over it; and in the event, which has happened, of his dying first, enabled Dixon to appropriate it to himself without the control of his co-administratrix. This mode of deposit, therefore, was an act by which, without necessity, one of the personal representatives was excluded, who had at one time possession, and by which exclusive possession was likely to vest in a person not entitled to it; and that event having happened, and such person having, by virtue of such possession, appropriated the fund to himself, there can be no doubt that the deposit was improper, and that it has been the cause of the loss. The principle, therefore, of the cases referred to subjects Bond's estate to the liability of making good this fund; for although the wife was the personal representative, and she survives, yet the devastavit consisted in. the improper deposit, which took place during the coverture; the money lost was part of the estate which came to the hands of the husband, and from which nothing has taken place that can discharge him. He was himself the author of the devastavit, and his estate is liable, as is fully illustrated by Lord Redesdale in Adair v. Shaw (1 Sch. & Lef. 243) (1). I have therefore no difficulty in dismissing the petition of appeal, with costs. I find that the decree adopts the statement of the sums as set out in the answer, with which I presume all parties are satisfied, as none have complained of that part of the decree. I cannot, however, but observe, upon the apparent inconsistency of adopting these sums, and particularly of declaring that the 988l. 68. 8d. *formed the share or part of the share of the plaintiff in the residue of the estate, and at the same time directing the general accounts, and declaring that what shall be found due, including (1) See Soady v. Turnbull (1866) L. R. 1 Ch. 494, CLOUGH ť. BOND. [ *498] [ *499 ] the sums in question, shall be applied in a due course of administration. But as that part of the case has not been brought before me, I only mention it for the purpose of excluding the supposition that, in dismissing the petition of appeal, I intend to express any opinion upon this part of the case. 1838. Jan. 24, 31. Lord COTTENHAM, L.C. STUBBS v. SARGON. (3 My. & Cr. 507-514; S. C. 7 L. J. (N. S.) Ch. 95; 2 Jur. 150.) [A NOTE of this appeal will be found at the end of the report before the Master of the Rolls (2 Keen, 255). See 44 R. R. at p. 250]. 1838. Feb. 8, 10. Lord [516] DESBOROUGH v. RAWLINS (1). (3 My. & Cr. 515–525; S. C. 7 L. J. (N. S.) Ch. 171; 2 Jur. 125.) Confidential communications are made by A. to B. in the presence of B.'s solicitor. The solicitor cannot afterwards refuse to disclose these communications on the ground that his information was acquired as professional adviser of B. THE bill was filed by the plaintiff, as representing the Atlas Insurance Company, against the defendants Sir W. Rawlins and John Richards, as two of the directors of the Eagle Insurance Company, and against the defendant Smith as the actuary, and the defendants the Beethams, as the solicitors, of that company; and prayed that a policy of insurance, effected by the Eagle Company in the names of the defendants, Sir W. Rawlins and Richards, with the Atlas Company, upon the life of one John Cochrane, might be declared fraudulent and void, and be delivered up to be cancelled; and that the Eagle Company, and the defendants Smith and the Beethams, might be ordered to pay the costs of the suit, and that, in the meantime, proceedings on the policy might be restrained. The bill stated, amongst other things, that in the month of September, 1834, and before the time at which the policy in question was effected, a proposal was made by the defendant Smith, on behalf of the Eagle Company, to the Economic (1) Kennedy v. Lyell (1883) 23 Ch. Div. 387, 48 L. T. 455; aff. 9 App. Cas. 81. v RAWLINS. Insurance Company, for an insurance by them upon Cochrane's Desborough life, for the sum of 4,000l., and that, after some negotiation, Mr. Travers, the medical officer of the Economic Company, was desired by them to see Cochrane; which he accordingly did, on the 20th of September, 1834; and that he also had an interview with one Mr. Bennett respecting Cochrane's health and habits; and that, on the same day (viz. the 20th of September, 1834) he wrote and sent to Mr. Knowles, the managing director of the Economic Company, a letter, which was set out in the bill, and which contained a report upon Cochrane which was, in some respects, unfavourable. The bill then alleged that, on Monday, the 22nd of September, 1834, Mr. Downes, the actuary of the Economic Company, called at the office of the Eagle Company, taking with him Mr. Travers's letter, and that he then had an interview with the defendant Smith, and told him that the Economic Company had had an unfavourable report of Cochrane, and would refuse the proposed insurance on his life, and that he (Mr. Downes) thought it right to apprize the Eagle Company of it immediately, and in candour to show them Mr. Travers's letter, which was the reason of the refusal; and that Mr. Downes then handed Mr. Travers's letter to the defendant Smith, by whom it was perused, and returned to Mr. Downes, who thereupon went back to the Economic office, and wrote and sent to the Eagle Company a formal letter, rejecting the proposed insurance on Cochrane's life. The answer of the defendants, the Beethams, stated that, although when the transactions mentioned in the bill took place, they were the solicitors and attorneys of the Eagle Company, yet that they had since ceased to be such solicitors and attorneys, and that they had delivered up to the present solicitors and attorneys of that company all books and papers which they had formerly in their possession, containing entries relating to the matters mentioned in the bill, and had taken a receipt containing a list of the books and papers given up; and it submitted that, even if they could set forth a list of all such books and papers as was required, or could set forth the purport of the entries inquired after, they ought not so to do, inasmuch as the books and papers in question had been in their possession as the R.R.-VOL. XLV. 21 [517] |