Bridge v. Yates.

the words: “equally amongst them, if more than one, share and share alike," apply both to the children and to issue of a deceased child. Then the testator directs the trustees, after his wife's death, to stand possessed of her share of his estate, in trust for and to be equally divided amongst all and every his children who should be then living, and the issue of such of them as should be then dead, such issue taking only the part or share which his, her or their deceased parent or parents would have been entitled to if living: the issue, therefore, would have taken their deceased parent's share, as tenants in common with the surviving children. But the testator speaks of no division amongst the issue themselves: and, therefore, my opinion is that they take their parent's share as joint-tenants with each other.

Lord Coke, in his Commentary on Littleton, (c) says: "If lands be demised for life, the remainder to the right heirs of J. S. and of J. N.; J. S. hath issue and dieth, and, after, J. N. hath issue and dieth, the issues are not joint-tenants; because the one moiety vested at one time, and the other moiety vested at another time, &c." But, I apprehend that the learned author means that the issue of J. S. do not take as joint-tenants with [*649] the issue of J. N.; and not that the issue of either *J. S. or J. N. do not take as joint-tenants as between them

selves.

Besides, it seems to me that the point now under consideration, has been decided by the case of Oates v. Jackson, (b) and, therefore, I shall declare that the surviving child of the testator's deceased daughter is entitled to a third part of that share of the testator's estate which his widow was entitled to for her life.

(a) 188 a.

(b) 2 Strange, 1172.

Cooke v. Turner.

1844: 23d May.

COOKE v. TURNER.

Costs.-Fees to Counsel.

The plaintiff's solicitor employed a Queen's Counsel and a junior to oppose a motion for further time to answer. The Court held that he was justified in so

doing; and ordered the Taxing-master, who had disallowed the fees of the junior counsel, to review his taxation.

Two of the defendants, after they had made an application to the Master which was unsuccessful, moved the court for further time to answer the bill. Affidavits were made both in support of and in opposition to the motion; and it was supported by Mr. Bethell and Mr. Willcock, and opposed by Mr. Stuart and Mr. Freeling.

The Vice-Chancellor allowed the defendants six weeks' further time to answer, and ordered them to pay the costs of the motion. The Taxing-master, when the plaintiffs' costs of the motion were taken before him, considered that the application was not of sufficient importance to justify the employing of two counsel to oppose it; and, therefore, disallowed the fees paid to Mr. Freeling and his clerk with the brief and for settling an affidavit, and also the solicitor's charges for attendances on Mr. Freeling. The sums disallowed amounted to 51. 8s. The plaintiffs thereupon presented a petition praying that the petitioners might be allowed the several sums before-mentioned, and that it might be referred back to the Taxing-master to review his taxation.

*Mr. Stuart appeared in support of the petition.

Mr. Bethell opposed it.

[*650]

THE VICE-CHANCELLOR:-With respect to the fees paid to the junior counsel, my opinion is that there has been a miscarriage: and, though the sums are small, yet the principle is very important.

Cooke v. Turner.

I remember, perfectly well, many years ago, observing Sir Anthony Hart refuse to take a brief merely because there was no junior counsel with him.

[Mr. Bethell:-That is the rule in causes now: no one of us takes a brief in any cause without a junior.]

And I remember that Lord Eldon said in the house of Lords (when there was some objection made to the fact of two counsel appearing) that it was of extreme importance, to the public at large, that there should be a successive body of gentlemen brought up, who should understand their profession by knowing it from the beginning; and, in my opinion, it would be most injurious, not merely to the gentlemen who compose the bar at the particular time, but to the public at large, if the supply of able men were to be cut off by preventing the younger branches from learning their profession. The consequence of which would be that it would be a matter of chance, whether, when the gen tlemen who are within the bar, drop off, their places would be supplied by persons of sufficient learning and ability. I shall, therefore, refer it back to the Master to review his taxation: and the costs of the petition must be costs in the cause.

AN

INDEX

TO THE

PRINCIPAL MATTERS.

The paging has reference to the side paging in the Text.

ACCOUNT.

prove of in his lifetime; or, if he should
die before such plan should be prepared
In a suit by a priucipal against his stew-and completed, then according to such
ard and agent, the decree, in conformity plan as his trustees, with the consent of
to the prayer of the bill, directed an ac- the person for the time being beneficially
count to be taken of rents, profits and entitled to the immediate freehold of his
timber-money received by the defendant estates, should think proper to adopt:
on the plaintiff's account; and also di- and he gave 20,000l. to the trustees, to
rected the Master, in taking the accounts, be applied in erecting the house, and, in
to make to the parties all just allow the meantime, to be laid out in the funds
ances. The defendant was a solicitor, and the dividends to be accumulated;
and had acted, as such, for the plaintiff, and the accumulations, as well as the
during his stewardship; and bills of costs original fund, to be applied in erecting
were due to him from the plaintiff. The the house, and the surplus (if any) to be
Master, at the plaintiff's request, taxed laid out in the purchase of lands to be
the bills, and, in taking the accounts settled to the same uses as the devised
under the decree, included the reduced
amounts of them amongst the just allow
ances to which the defendant was en-
titled. The plaintiff excepted to the re-
port on that account: and the court al-
lowed the exceptions. Jolliffe v. Hector,
398

estates. Owing to opposition on the
part of the tenant for life, the trustees
did not build the house until more than
21 years after the testator's death; and
they invested the 20,000l. and accumu-
lated the income of it during the whole
of the interval. Held that the direction
for accumulation was not within the Thel-
lusson Act, but that the whole of the ac-
cumulated fund was applicable to the
purposes directed by the will. Lombe v.
Stoughton,
304

ACKNOWLEDGMENT.

In 1835 A. filed a creditor's bill, against
the administrator of his debtor, founded on
a debt due on a promissory note, but in
respect of which no payment of either
principal or interest had been made since
1823. In 1832 the administrator, on the

citation of a third person, signed and ex-child, and immediately after her having
hibited, in the Ecclesiastical Court, an a child, in trust to stand seised and pos-
inventory and account of the late debtor's sessed of his real estates, if not then sold,
assets and debts, in which A.'s debt was
entered. Held that that entry was a
sufficient acknowledgment, within Lord
Tenterden's Act (9 Geo. 4, c. 14,) to take
the debt out of the Statute of Limitations
(21 Jas. 1, c. 16.) Smith v. Poole, 17

See AGENT.

ADMINISTRATION.

and of his personal estate and the rents,
dividends, interest and annual income
thereof, in trust for her children or child
who should attain 21, their heirs, &c.;
and if she should have no such child,
then in trust, after her death, for the
trustees, their heirs, &c. The testator
then directed his trustees to sell the ad-
vowson and his other real estates, with
all convenient speed after his death, and
to stand possessed of the proceeds upon
the trusts before declared of his personal
1. Testator gave all his real, leasehold estate: and he empowered his trustees to
and personal property to trustees, upon apply the rents, dividends, interest and
the trusts after mentioned; and, to effect annual income of the presumptive shares
those trusts, he directed them to sell all of his sister's children, of his real estates
his property, in order to form a fund to (if not then sold,) and, if sold, then of the
pay his debts and legacies, and then to money arising therefrom, and of his per-
dispose of the residue as after directed. sonal estate, for their maintenance during
The testator next gave several legacies, their minorities; and directed that the
and then gave the residue of his property surplus rents, dividends, interest and an-
remaining in the hands of his trustees, to nual income should be invested and ac-
trustees for a charity. The Vice-Chancellor cumulated for the benefit of the children
held that the leasehold and other per- from whose shares the same should be
sonal property were alone liable to the saved. At the testator's death, his sister
payment of the debts and legacies. But (who was his heir) had three infant
the Lord Chancellor, on appeal, differed
from his Honor, and held that the debts
and legacies were payable out of the mixed
fund, composed of the produce of the
real as well as the leasehold and other
personal estates, in proportion to the re-
lative values of those three estates.
Attorney General v. Southgate,

77

children; and his living having become
vacant by his death, the question was
whether the children, their mother or the
trustees were entitled to present to it.
Held that, as the presentation to a living
does not produce rents, dividends, interest
or annual income, the dispositions of the
will were not applicable to that species
of property, and, consequently, that the
testator's sister was entitled, as his heir
at law, to present the living on the ex-
isting vacancy. Martin v. Martin, 579

AFFIDAVIT.

1. Bill by the obligee in a bond, who
had delivered it up, by mistake (as he al-
leged,) to the defendant, the obligor, to
recover the amount due on it. The an
swer admitted the delivery of the bond,
and that the defendant had destroyed it,
but traversed the allegation as to mis-
take. Held, at the hearing, that as the
answer admitted the bond to have been

A testator, who was both patron and destroyed, the court had jurisdiction; not-
incumbent of a living, devised the advow-withstanding there was not annexed to
son and all his other real estates, and the bill an affidavit that the bond was lost
also his personal estate, to trustees in or not in the plaintiff's custody. Crosse
trust to pay the rents, dividends, interest v. Bedingfield,

and annual income of his real estates,

35

until they should be sold as thereinafter 2. On showing cause against dissolving
directed, and also of his personal estate, an injunction, the plaintiff cannot read
to his sister, until she should have a affidavits to prove allegations, in the bill,