George Attenborough & Son v Solomon

VISCOUNT HALDANE L.C. My Lords, the facts out of which this litigation has arisen lie in a short compass. The question is whether certain articles of silver plate, which were pledged by one A. A. Solomon to the appellants under a contract of pawn, were validly pledged. A. A. Solomon was one of the executors of the will of Moses Solomon, which was made in 1878. The testator appointed A. A. Solomon and J. D. Solomon to be the executors and trustees; and after giving certain pecuniary legacies the testator devised and bequeathed the residue of his real and personal estate of every kind to his trustees upon trust for sale, payment of expenses, and division of the residue into four equal parts, two of which were settled. The will was duly proved, and very shortly after, in the next year, J. D. Solomon, the other executor, put in a residuary account. In so doing, as one of two executors has authority to act for both, he bound his co-executor. The account shewed the particulars of the estate of the testator and that the debts had been paid. It concluded with a declaration in which the executor stated that the account was a true account and that he offered to pay duty upon a balance of residue mentioned "to which I am entitled and intended [ sic ] to retain to my own use and for the use of Alfred Abraham Solomon, Harriet Wolff and Sarah Levy," being the beneficiaries under the will. My Lords, the only other point I need mention is that in Mr. J. D. Solomon's evidence given at the trial he said that the debts were all paid very shortly after the testator's death.

Now, my Lords, the meaning of a residuary account must of course be construed with reference to its purpose. It is not a document which is intended to have the operation of a declaration of trust; but it may be looked at as against the executor as evidence of what he regarded as being the position of the estate. I think it is plain from that document that Mr. J. D. Solomon regarded the debts as having been all paid and the estate as ready to be held upon the trusts of the will which affected it in the hands of the trustees.

My Lords, having said so much, I will conclude the history of the case. The chattels which form the subject of the appeal were articles of silver plate which belonged to the testator, and they appear to have been left in the custody of A. A. Solomon. A. A. Solomon held them as custodian for the executors and trustees, and he retained possession of them till the year 1892, when he improperly pawned them with the appellants. The latter had no knowledge of his position and dealt with him as an ordinary customer. He died afterwards, and it was subsequently discovered that the plate was pawned, and the respondents,…