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Title

Re Vickery, Vickery v Stephens [1931] 1 Ch 572.

Judge

Maugham J

Facts of the case

An executor of a will employed a solicitor to obtain payment of sums of money due to the estate and furnished him with signed authority to collect money on deposit with the Post Office. Six month later, a beneficiary under the will informed the executor that the solicitor had previously been suspended from practice and objected to his being employed in connection with the estate. The executor pressed the solicitor for settlement, finally placing the matter with another solicitor but by this time the solicitor made away with the money and it was said that having regard to what the executor had learnt of the reputation of the solicitor in question he ought to have cancelled the authority given him before the money got into his hands.

Ratio

1. Section 23 of the Trustee Act 1925 empowered the executor to employ the solicitor for the purpose in question in the first instance and Section 30(1) of the Act provided, inter alia, that a trustee should not be liable for the defaults of any person with whom any trust money or securities might be deposited unless the resulting lost happens through his own wilful default.

2. The meaning of ‘wilful default’ within Section 30(1) of the Act is relied upon the construction reached in Re City Equitable Fire Insurance Co. Ltd where in that case a person guilty of wilful default ‘knows that he is committing and intends to commit a breach of his duty, or is recklessly careless in the sense of not caring whether his act or omission is a breach of duty.’

Held

The executor not liable, finding that the appointment had been made validly and in good faith.

Note (Suggested hints)

Section 23 of the UK Trustee Act 1925 is identical with Section 28 of ours and so does their Section 30(1) with Section 35 of ours.