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for a debt.
come to that conclusion independently of the letter as some leasehold property at Alphington, which he held to employing the defendant at a reasonable remunera- | under two leases for lives, and accordingly he wrote tion.
and delivered to the plaintiff an unsigned memoHe next came to the construction of the bond, and randum as follows :the defendant's contention that gas-fitting was not in
“Messrs. S. & Co., will be pleased, as soon as their cluded in the prohibition. On the one hand it was
lien is satisfied, to deliver to Mr. Daw (the plaintif) certain that the defendant had carried on all three the assignment from K to myself of a field and garden businesses, if three they were, and the assignees had in Alphington, and Little Crab Marsh, and Cross Park. done the same; and it was equally clear that, in
“Bartholomew Yard, September 11, 1856." the catalogue of the stock in trade, printed before
At the same time James Terrell delivered to the the sale, the term “gas-fitting” was not used, plaintiff a reversionary lease by which Little Crab though part of the stock belonged to that branch Marsh and Cross Park” were demised to him for the of the business. On the other hand the defendant term of ninety-nine years, if he should so long live, the said that he had always considered them as three
term to commence from the death of the survivor of three distinct businesses, and that he had executed the persons therein-named ; and also a letter from the agent bond under the impression that it did not extend to of the lessor notifying the execution of the lease, the gas-fitting business ; and it also appeared that the and a slip of paper containing a memorandum of the plaintiff and the defendant's son did not at first intend contents of the lands demised. The other documents to carry on the gas-fitting business. Under these cir- relating to the properties agreed to be charged were, at cumstances it wonld have been very difficult to deter- the date of this transaction, in the hands of Messrs. mine whether gas-fitting was or was not included in S. & Co., the bankers of James Terrell, as a security the bond ; and he, therefore, thought it proper to direct an action to be brought against the defendant
James Terrell died intestate in 1859, and letters of (the plaintiff being at liberty to use the son's name on giving a proper indemnity), and the equity would be administration were granted to the defendant Mary
Terrell, his widow. reserved upon the usual terms.
It was admitted that the deeds which were deposited Hobhouse, Q.C., suggested that Mr. Rolt's Act (25& with S. & Co. were handed by them to the intestate 26. Vict. c. 42,) prevented the Court from adopting on their debt being paid off, and that these deeds had this course ; but that it might direct an issue.
ever since remained in the possession of the intestate
or his representative. 18 Dec. 1863. THE MASTER OF THE ROLLS (after some discussion
Southgate, Q.C., and Kekewich, for the plaintiff, as to Mr. Rolt’s Act) held, that it prevented him from contended that the memorandum created a good allowing the cause to stand over with liberty to bring equitable mortgage of the Alphington property, an action. It was not a case for directing an issue,
Dighton v. Withers, 31 Beav. 423 ; and he should, therefore, dismiss the bill, so far as it
Ex parte Arkwright, 3 M. D. & D. 129; prayed an injunction against carrying on the gas
Lacon V. Allen, 3 Drew. 579.
As to the form of the decree, they cited, fitting business, without costs, and without prejudice to any action on the bond.
Hanman v. Riley, 9 Hare, App. xl.
Selwyn, Q.C., and Wickens, for the administratrix. Master of the Rolls.
} Daw v. Terre.L. Swanston, for the heir-at-law, said that as to the 19 DEC. 1863.
Alphington property no security or memorandum of Equitable Mortgage-Deposit.
deposit (except the unsigned one before stated) had
been given : the reversionary lease of Little Crab A gave B an unsigned writing, by which he directed Marsh and Cross Park had been deposited with the C, as soon as his own lien was satisfied, to deliver to plaintiff, but the intestate's interest in this lease had Ban assignment of three leasehold properties, and he ceased with his life, and the deed then became absodelivered to B the original lease to himself of two of lutely worthless ; he contended that there was no the properties. This was a lease of a reversion to A actual deposit of title-deeds such as would create an for life, who died before it took effect in possession :- equitable mortgage,
Held, that the writing and lease together constituted Ec parte Perry, 3 M. D. & D. 252. na equitable mortgage of the third property not comprised in the lease.
THE MASTER OF THE ROLLs, without calling for a
reply, said that there was, in his opinion, a good This was a creditor's suit to administer the estate agreement to give an equitable mortgage, and that, of James Terrell deceased. James Terrell, being in. although no deeds were deposited relating to the debted to the plaintiff, proposed to him to secure the Alphington property, the transaction was to be stuins advanced, and interest thereon, by a charge on regarded as one entire transaction, and a good
22 Dec. 1863.
equitable mortgage of the Alphington property was property, shares in companies, or other investments, created.
but that they should retain such hereditaments, shares, Minute.-- Declare the plaintiff entitled to a charge and investments unconverted as long as they in the in the nature of an equitable mortgage on the exercise of their uncontrolled discretion should think Alphington property, and direct such property to be proper, and that in the meantime the rents, dividends, sold, and pay the plaintiff his principal and interest and and proceeds of such hereditaments, shares and investcosts out of the proceeds, so far as they will extend, and ments should, with the proceeds of other parts of her -the mortgaged estate being admitted to be insuffi. trust estate, be applicable to the payment of such cient-usual administration decree; adjourn further annuity, and she declared that her trustees should not
be answerable for any depreciation in the value of such shares or investments, nor for any loss which
might arise in the sale thereof by reason of their not Master of the Rolls, ollse} VICKERY V. EVANS. having sold the same at any particular time, and she
gave her trustees the fullest discretionary power she Trustees — Investment on Real Security-An
was able to confer upon them to sell the shares and
investments or not, and to retain them as long as they nuity-Capital— Remainderman-Residuary
might think it expedient so to do. The testatrix Legatee.
appointed the defendants, John Evans and William A tcstatrix directed the executors and trustecs of her Drury, executors of her will, and her residuary derisces will to invest such a sum of money as, when invested, and legatees in equal shares as tenants in common. would produce the annual sum of 1501., and to pay the
The executors duly proved the will, and got in the annuity to A for life, and after his death to stand pos
real and personal assets of the testatrix, which were sessed of the capital of the annuity for B absolutely; amply sufficient to answer the trusts of the will, and and she appointed her trustees residuary devisecs and they appropriated a sum of 35301. to meet the annuity legatees. The trustees, who had large discretionary of 1501. This sum was secured by a mortgage, dated powers of investment, secured a sum of 35307. to answer
the 22nd of October, 1862, of the ground-rents of ten the annuity, on a mortgage at 41 per cent., of freehola freehold houses, with interest at the rate of 51. per ground-rents, which were valued at 43001.
cent. per annum, reducible, on punctual payment, to Held, that this was a sufficient security, and that the 41. 5s. per cent., with a proviso that if the mortgigor trustees, being also residuary legatees, were not compel. should pay the interest, and keep the covenants, &c., lable to set apart a larger sum as the capital of the the mortgagees would not call in the principal sun annuity.
before the 22nd of October, 1867, and that the mort
gagor should not be at liberty to pay off the same Caroline Vickery, by her will dated in 1856, and a
before that day. codicil thereto, dated in 1858, gave her real estate and
The plaintiff was not consulted on the subject of the her residuary personal estate to the defendants, John investment, and he filed the bill to obtain a declaraEvans and William Drury, their heirs, &c., upon tion that it was not a proper investment; and that a trust, to invest such a sum of money in the public sufficient sum of Consols ought to be purchased to stocks or upon the security of freehold or copyhold answer the annuity. hereditaments in England, as when so invested would produce the annual sum of 1501.
And she authorised amounted annually to a sum of 1761., and each of the
The ground-rents on which the annuity was secured her trustees to alter, vary, and transfer such invest. ten houses was of the annual value of 1001. or upments for or into other stocks, funds, or securities of wards. The average of four valuations of the groundthe like nature as often as they might think proper, rents was 4,3691. At the time when the bill was tiled and she declared that they should stand possessed several of the houses were unlet.' thereof, and of the proceeds thereof, upon trust to pay the annual proceeds of 1501., as the same should become Seluyn, Q.C., and Druce, for the plaintiff, contended, receivable, into the proper hands of her brother for his life, and the testatrix declared that on his decease the could not exercise the discretion given to them at the
1st. That the trustees being also residuary legatet: trustees should stand possessed of the stocks, funds, expense of their cestuis que trustent. This discretion wa and securities in or upon which the said investment not as to what was the proper amount to be invested should have been made upon trust for the plaintiff, to answer the annuity, but as to the investment of for his own absolute use and benefit. The testatrix a proper amount to be previously set apart ; and they also declared that, notwithstanding the directions contended that the amount set apart by the trustees thereinbefore contained for investing sufficient portions was not sufficient. of her trust estate to produce the annual sum of 1501., 2nd. The average of four valuations of the property it should not be obligatory upon the trustees to make taken as security was 43697. ; the property
, such investments specifically, unless they were was clearly insufficient to secure 35301, within the able to do so without selling freehold or leasehold rule laid down in
Stickney v. Sewell, 1 Myl. & Cr. 8; Vorris v. Wright, 14 Beav. 291 ;
} BRANDON V. BRANDON. Stretion v. Ashmall, 3 Drew. 9.
14, 16 DEC. 1863. 3rd. The security could not be realised for five years, Practice Mortgage pendente lite-15 & 16 and the remainder-man would therefore be kept out of his legacy for that time, if the tenant for life should
Vict. c. 86, s. 52. die in the interval.
Persons who have, pendente lite, taken mortgages on Southgate
, Q.C., and Whitehorne, for the defendants, the shares of purties to a suit may be brought before the said that this was a question of the bona fides of the Court by a supplemental order under 15 & 16 Vict. trustees : the rule laid down in Stickney v. Sewell (loc.
C. 86, s. 52. cil.) was only a general one, and when trustees had This was a suit for administering the real and per: not followed the rule, but had acted honestly, the sonal estate of Samuel Brandon. A decretal order, Court had protected them,
dated the 4th of June, 1825, and several orders of Jones v. Lewis, 3 De. G. & S. 471 ;
revivor and supplement, and other orders, had been and they referred to his Honour's judgment in made in this suit; and the Court had appointed a Aspland v. Watie, 25 L. J. Ch. 53.
receiver to receive the rents of the estate. SubseBut the security here was most ample, for the lessee quently to these orders various parties to the suit had would never allow his houses to be forfeited for non- mortgaged their shares. The plaintiff Parker had payment of the ground rents.
applied to have the mortgagees of these shares made As to the question between the trustees as residuary defendants by a supplemental order under 15 & 16 Vict. legatees and the plaintiff as owner of the reversion of c. 86, s. 52. The mortgagors and the mortgagees were the annuity, the words of the will were express, that acting by the same solicitor, and they all concurred the trustees were to invest "such a sum of money as in the application. The Registrar, however, objected, would produce the annual sum of 1507."
on the ground that it would be sufficient if, without Selwyn, Q.C., in reply,
making the mortgagees parties, the receiver were
ordered to pay the rents, which might be attributable THE MASTER of the Rolls was of opinion that the to any mortgaged share, in discharge of the interest freehold ground-rents were a sufficient security ; the due upon it. He requested that the matter should be value of the houses was really included in it, as the mentioned to the Court. landlord might enter if the ground-rent were not
Hardy, in support of the application, submitted pail . On the second point his Honour said that
under the old practice, these mortgagees be felt some hesitation, and he had no authority might have been brought before the Court by a supin the subject to guide him. The words in the plemental bill, the Court ought, in like circumstances, will were clear, and the Court would not allow under the new practice, to make a supplemental order the investment to be fraudulently or collusively to the same effect.
No expense would be entailed on Arranged so as to diminish the capital of the remainder other parties by these mortgagees being made parties, uan on the death of the tenant for life, but on the and their presence would be very convenient for the ther hand it was not competent for the remainder
purpose of taking the accounts. Similar orders had man to require that the investment should be made at already been made in the present suit. the lowest rate of interest in order to increase his capital
. There was no rule which would interfere KINDERSLEY, V.-C., said that he felt some hesitawith the large discretion given to the trustees ; if they tion on the ground of expense. The mortgagees, if now found a person who would give 417. per cent. interest, made parties, would have to be served on all future and the security was ample, and there was no fraud or occasions. As, however, such orders had already im proper conduct, they were entitled to the benefit of been made under similar circumstances, he would, subwhat the testatrix had given to them as residuary ject to what the Registrar might say, make the order. legatees
. On the third point, if the annuitant died The order was subsequently made. * before the money was payable under the mortgage, the
Note.*_See remainder-man would have a right to have the security sold, and any deficiency made good by the trustees.
Freeman v. Pennington, 3 De G. F. & J. 295. His Honour thought that it would not be proper to dismiss the bill, and made an order declaring the investment sufficient, and staying the proceedings with Stuart, V.-C. 1 Re FURNESS RAILWAY
18 DEC. 1863. COMPANY. Re ROMNEY. No order as to costs.
Practice-Lands Clauses Consolidation Act, Note. ---Jones v. Levis (loc. cit.) was reversed on
section 80-Costs. appeal. See Lewin on Trusts, 4th edition, p. 242,
Where two estates, settled upon different trusts, were jointly charged with certain incumbrances, and such
liberty to apply.
incumbrances were, by arrangement between the two Currey, for the company, objected to giving the tenants for life, paid off by them out of their private remaindermen their costs, insisting that they ought moneys in certain proportions, and part of one of such not to have been served, and that the case did not estates was taken by a railway company for the pur- differ in principle from that of an ordinary petition by poses of their Act, and the purchase-money paid into a tenant for life, for the investment of funds in Court, Court :
where it was clearly settled that the remainderman Held, upon petition by the tenant for life of the land was not entitled to the costs of liis appearance. taken by the company, for payment to him out of the fund in Court of the amount of the incumbrance paid
His Honour said he was unable to concur in that off by him, and for the investment of the residue of the view, and ordered the company to pay the costs infund, that the company was liable for the costs of the curred by the remaindermen. appearance of the persons interested in remainder expectant on the life estate of such tenant for life.
} Wilson v. Round. Under the will of John Romney, deceased, certain
19 Dec. 1863. lands in the county of Lancaster were settled upon the Attorneys' and Solicitors' Act, 1860—Priority. petitioner, George Romney, for life, with remainder to his first son in fee, with remainder, if he should have Where a solicitor had obtained a right to charge his no son, to the respondent, John Romney, for life, with costs under 23 & 24 Vict. c. 127, s. 28, upon certain remainder to his first son in fee ; and by the same will real property :certain other lands in the same county were settled Held, that his right was paramount to that of the upon John Romney for life, with remainder to his first creditors of the client (who was dead), under a decree for son in fee, with remainders over in case he should sale made in a suit to administer his real and personal have no son.
estate. The entirety of the estates so settled were liable to Such charging order must, however, be strictly concharges amounting to nearly 40001.
fined to the costs incurred in the suit in which it was By an agreement in writing entered into by George obtained. Romney and the respondent John Romney it was agreed that the lands settled upon George should be considered
This was a petition by the solicitor for the plaintiffs liable for one-fourth of such charges, and that the lands in the suit of Wilson v. Round to obtain an order settled upon John should be considered liable for three charging his costs upon certain real property, under fourths of such charges, the lands settled upon John the following circumstances :being three times as valuable as those settled upon
The original plaintiff in this suit, John Wilson, was George ; and thereupon the charges were paid off in such the mortgagee of the property in question, and the proportions by George and John out of their private petitioner had been employed by him in certain moneys, the proportion so paid off by George amount. actions which had been prosecuted by the plaintiff for ing to 9191. 16s. 9d. ; and George and John at the same
the purpose of enforcing his security, as well as in this time executed a memorandum, declaring that they did suit, whic was one for foreclosure, and in which a not intend that such charges should merge in the in- decree of foreclosure had been made, which had become heritance for the benefit of those entitled in remainder, absolute
. John Wilson had afterwards died, and the but that they intended the same to be kept alive for present plaintiffs were his personal representatives. their own private benefit.
A creditors' suit had been instituted for the purpose Subsequently to the date of such agreement, of administering his real and personal estate, in portions of the lands settled upon George were taken which a decree ordering the sale of his real estate by the Furness Railway Company for the purposes
had been made.
of their undertaking, and the purchase-money amount Eddis, for the petitioner, asked that the costs, ing to 1,4301. was paid into Court.
charges, and expenses incurred in the actions, and the The petition prayed that out of the fund in Court present suit, might, under section 28 of the Attorneys' the sum of 9191. 168. 9d. should be paid to George and Solicitors’ Act, 1860 (23 & 24 Vict. c. 127), be Romney in discharge of the encumbrance paid off declared to be a charge upon the property, and that by him, and that the residue of the fund should be an order might be made for raising and paying the invested in consols, and the dividends thereof paid to amount. him during his life. George Romney was unmarried, and the petition:
De Gex, for the plaintiffs and the other persons enwas served upon John Romney and his first son an
titled to John Wilson's estate, objected, on the grounds infant.
that a decree having been made in the administration Shebbeare appeared for the petitioner.
suit, an order could not now be made interfering with
the order for sale of the property made therein for the Bush, for John Romney and his son, asked for their benefit of the creditors, but that the petitioner ought costs as against the company.
to take the benefit of that suit alone. He also con
tended that the petitioner had no claim at all to ask vecn informed that a petition was presented, and they in this suit for the costs incurred in the actions. persisted in presenting another for the same object, the
costs of the preparation and presentation of the second STUART, V.-C., thought that the petitioner's rights,
petition were disallowed. under the section in question, were paramount to those of the creditors under their suit, but that the costs
The petitions in this matter, reported on the merits which could be made a charge upon tho estate were ante, p. 192, now came on to be heard on the question only those incurred in the present suit. The order
of costs. must be, that the costs, charges, and expenses of the
It appeared that a petition had been preparod on petitioner, of or in reference to the suit, should be behalf of the legatees under the will of the testator R. taxed, and in default of tho plaintiff's paying the Chaplin, other than Mary East, but had not been preamount which should be certified to be due, should be sented when a petition was presented by the next of raised by sale or mortgage of the property the subject kin of the testator raising the same question. The suliof the suit, with liberty for the plaintiffs to make pro-citor of the legatees had, previously to the presentation posals in Chambers in reference to the sale.
of the latter petition, been applied to on behalf of the next of kin, and asked what he meant to do; but he
declined to give any explanation. The solicitor for Wood, V.-C. 1
the next of kin immediately after their petition was HAND 0. STREET, 17 DEC. 1863.
answered, called on the town agent for the solicitor to
the legatees, and asked him to accept service for them, Practice-Motion to Dismiss.
which he refused to do: the former then went down Notice of motion to dismiss for want of prosecution to the country and served the country solicitor the was given in June, 1863 : replication was filed before same evening. The petition of the legatees was prethc mation could be heard. No evidence was sub. sented a few hours before such service was effected on sequently put in, nor any further step taken. their country solicitor : and it was subsequently served second motion to dismiss being made, the Court ordered on the next of kin and other parties interested. the plaintif" to set down the cause for hearing within a week, otherwise the bill to be dismissed with costs.
Kenyon, Q.C., and Woodrofc, for the legatees, now
contended that the costs of preparing the petition Notice of motion dismiss the bill in the suit, for should be allowed to them out of the fund in Court. want of prosecution, was given by the defendant in June, 1863; but before the motion could be heard, Daniel, Q.C., and A. G. Marten, for the next of replication was filed.
kin, urged that the presentation of the second Since the filing of the replication no step had been petition was altogether unnecessary, and that the taken in the suit, nor any evidence filed by the legatees onght to be made to pay all the costs occaplaintiff.
sioned thereby. J. Pearson now moved to dismiss the bill.
C. Hall, Eddis, and E. R. Turner, for various Gill, for the defendant, agreed to pay the costs of respondents to both petitions, asked that their costs the motion, undertaking to proceed to a hearing forth- might be provided for. with.
Woon, V.-C., said that it might well happen that, Pearson insisted that the bill ought now to be dis- where a fund was paid into Court under the Trustee missed.
Relief Acts, two petitions might be bona fide prepared Wood, V.-C., ordered the plaintiff to pay the costs having the same object, and raising the same issues. of the motion, and to set down his cause for hearing Where this happened, it was usual to allow the costs within a week : otherwise, the bill to be dismissed of preparing the second petition. But it was of imwith costs.
portance not to permit a fund to be squandered away in payment of costs. Here the persons who presented
the second petition had been communicated with, and Wood, V.-C.
} Re CHAPLIN'S TRUSTS (2). asked what they intended to do ; but they refused to 19 Dec. 1863.
give any explanation. The petition of the next of kin Practice-Costs—Trustee Relief Act-Two was then presented, and the solicitor for the legatees Petitions.
had been asked to accept service, which they, perhaps,
properly, had declined to do. But, knowing, as they When two petitions are bonâ fide separately prepared must have known, that this petition would raise the for obtaining payment out of Court of a sum paid in same question as that which they had prepared on under the Trustee Relief Acts, and both raise the same behalf of the legatees, they ought then to have stayed issue, the Court will in general allow the costs of the pre- their hands. Under these circumstances, he should paration of the second petition, but where solicitors had not allow the legatees any costs connected with the