1839. In re Chilcote.

and wife," 101. each per annum more than he had given them by the will:" the annuity to the wife is not given by the fourth codicil, in the same way in which the annuity was given by the second codicil, or independently of her husband, and is not a substitute for it. The case is not free from doubt; but my impression is, that the testator has not used words of [*421] *substitution, and that all the bequests take effect. The 107. a year given to the wife by the second codicil must be paid to her separate

A bill of costs having been incurred by A. and B. jointly, and an action having been brought against them for the recovery of the amount, the court refused to direct a taxation and to stay the proceedings at law, on the undertaking of A. alone, to pay what might be found due.

THIS was a special petition, presented by Mr. Pearman, for the taxation, of his solicitor's bill: it stated the retainer by the petitioner, and the delivery

will, and those given by a subsequent instrument, the court has held that the latter were meant to be substitutions for the former. But in this case there is a manifest difference between the legacies given by the testamentary paper, &c." Shadwell, V. C. Strong v. Ingram, 6 Sim. 209.

[1] Whether a gift, in the absence of express direction, is to be deemed cumulative upon, or substitutional for, a previous gift, is necessarily a question of construction. If the two gifts occur in the same instrument ;-if in distinct instruments, as in a will and codicil;—if something is annexed to the subsequent legacy, either by way of enlargement, as in the case in the text, or by "restriction of the power of the donee ;-if the sums given are equal in amount or different ;--these, and innumerable other considerations must often be taken into view in deciding cases of this description. "In cases of this kind," Lord Eldon said, "there is always a degree of doubt and difficulty, greater or less; and it depends entirely upon the judge, before whom the case comes, to say, what he conceives the intention of the testator to have been." Mackenzie v. Mackenzie, 2 Russ. 274. So, in a case in which the legacy in a codicil was held to be cumulative, Lord Brougham said; "In questions of this kind the light to be derived from decided cases is of less importance than in most others. The object being in each instance to ascertain the intention of the testator, and the means to be used for this purpose being the examination of what he has said, and not conjecture and arguments founded on probability, it is clear that almost every thing must depend upon the particular circumstances, that is, upon the very words of the instruments; and that the least variation in these may produce a wide difference in the result. The general resemblance of cases may carry us a little way towards a principle or rule of construction; but, unless the circumstances are the same, or nearly the same, there will arise as much difficulty in applying the former rule, as in making a new one." Guy v. Sharp, 1 Mylne & K. 603. "Decisions upon particular wills are of far less consequence now, than they formerly were supposed to be; unless, indeed, where the leading provisions are almost identical, and the facts substantially alike. They now furnish, not so much authorities, as analogies by which to interpret the words of wills in new cases." Story, J. Blagge v. Miles, 1 Story's Kep. 445. And see further as to the value of authorities in questions of construction, what is said by Walworth, Ch. in Rathbone v. Dyckman, 3 Paige, 26, and by McCoun, V. C. in Kingsland v. Rapelye, 3 Edw. Ch. Rep. 6, quoted 3 Myl. & Cr. 613, n. 1. Vaughan v. The Marquis of Headfort, 10 Sim. 641, and n. 1, ibid. As to gifts, when cumulative or substitutional, see further Fraser v. Byng, 1 Russ. & M. 91, 102, n. 1. Guy v. Sharp, 1 Myl. & K. 589. Mackinnon v. Peach, 2 Keen, 555, 563, n. 1. Radburn v. Jervis, 3 Beav. 450. Strong v. Ingram, 6 Sim. 107. 2 Russ. 274, n. 2. 3 Russ. 157, n. 1. Tweedale v. Tweedale, 10 Sim. 453.

1839. In re Chilcote.

by the solicitor of his bill, amounting to 8061. The petition also stated, that the solicitor had received money on account of his bill, amounting to 3771., and retained the papers, &c., of the petitioner, and that the costs were unreasonable.

The petition prayed for the taxation of the bill, the petitioner submitting to pay what might be found to be due, and that all proceedings might be stayed in the meantime.

It appeared by an affidavit, filed in opposition to the petition, that from 1832 to 1834, the solicitor had been employed by the petitioner Pearman alone, during which time bills of costs, amounting to 1047., had been incurred; and that from September, 1835, to October, 1838, the petitioner Pearman, and a Mr. Jay jointly employed the solicitor, during which period bills of costs, amounted to 7021., had been incurred on their joint retainer; and that during such employment, the solicitor had received from Mr. Jay 3771. on

account.

That the solicitor, in order to enforce the payment of the bills due to him from Jay and Pearman, on their *joint retainer, brought an [*422] action at law against them, in which they had appeared separately and pleaded to the action.

The affidavit further stated, that Jay was the only responsible party to whom the plaintiff could look for payment of the costs due jointly from Jay and Pearman.

Mr. K. Parker, in support of the petition, cited In re Murray(a) to show that the possession by the solicitor, of deeds was a sufficient ground for the taxation of his bill.

Mr. Flather objected, that the bills incurred on the joint retainer could not be taxed on the undertaking to pay of one client only, and in the absence of the other; the solicitor would thus be deprived of the benefit of the undertaking of the only responsible party.

Mr. K. Parker, in reply, contended that it was not necessary that there should be a joint undertaking, for in that case, one party might lose the benefit of a taxation, because the other refused to join in the application.

THE MASTER OF THE ROLLS said, that no such case had been alleged: that this was an application to tax a joint bill of costs in the absence of one of the parties and that the order for taxation must, therefore, be confined to the bill incurred by the petitioner solely, and as to which no action was pending.

1839. Lippiat v. Holley.

[*423] *JOHN LIPPIAT v. WALTER HOLLEY, by JOHN BUPB,

1839; February 12.

his Guardian.

A proposed compromise of a suit appearing to be for the benefit of an infant defendant, the court sanctioned it, without a reference to the Master.

By a decree of the 23d of February, 1833, it was referred to the Master, to take an account of what was due to the defendant for principal and interest on an indenture of the 5th of January, 1797, and to take an account of all sums laid out by the defendant, or by those under whom he claimed, in obtaining a renewal of a lease and necessary repairs and lasting improvements on the premises, with interest; and also to take an account of rents and profits received by the defendant and the several persons under whom he claimed, and the defendant was to be charged with an occupation rent.

The Master, by his report, dated the 2d of March, 1837, found the sum of 12547. to be due from the plaintiff to the defendant, and the sum of 14277. due from the defendant to the plaintiff, and on the whole, that 1731. was due from the defendant to the plaintiff.

The defendant took exceptions to the report, which were overruled without costs, and the deposit was ordered to be returned.

At the hearing a compromise was agreed upon; but the registrar objected to draw up the order, on the ground that there ought previously to be a reference to the Master, to inquire whether the intended compromise would be benefical to the infant.

[*424]

*Mr. Kindersley and Mr. Bethell now applied that the order might be drawn up without incurring the expense of a reference. They urged that all the facts being now before the court in the same way as if the matter were before the Master, and the court having the means of seeing that the arrangement was manifestly for the infant's benefit, it was unnecessary to send the matter before the Master.

THE MASTER OF THE ROLLS said he was disposed to make the order without a reference, as it clearly appeared for the benefit of the infant. The decree should contain a recital to that effect.[1]

"Declare that it is for the benefit of the defendant that such order should be made as follows, the plaintiff, by his counsel, consenting thereto. And the court doth therefore order, that the defendant do assign the lease of the premises in the pleadings in this cause mentioned to the plaintiff: and do deliver up to the plaintiff all deeds, papers and writings relating to the premises, in his custody or power; and it is ordered that the defendant do attorn. tenant to the plaintiff of the mill and premises, with the machinery, &c. ;

[1] For analogous cases, in which an order has been made, without reference to a Master, see Ex parte Farrow, 1 Russ. & M. 112, and n. 2, ibid. See further Parker v. Burney, post 492.

1838.-Keys v Keys.

and do execute to the plaintiff a release of the mortgage debt and of the claim in respect thereof; and it is ordered that the plaintiff do execute to the defendant a release of all claims for or in respect of the rents, or otherwise in relation to the matters in question in this suit; and it is ordered that the defendant be at liberty to keep the said premises, as tenant to the plaintiff, at a pepper corn rent, until Lady-day now next; and it is ordered that the defendant do then deliver up possession of the said premises and all the fixtures, &c.; and it is ordered that all further proceedings in this cause be *stayed, but with liberty to any of the parties to apply to this court, [*425] touching the performance of the direction hereby given, as they may be advised." Reg. Lib. B., 1839, p. 358.

A receiver had been appointed of the testator's estate, part of which was in India, and it having become necessary to have it remitted, Held, that the proper course was to refer it to the Master, to inquire what would be the most advantageous course for receiving, and remitting it to England.

PART of the testator's estate consisted of 50,000 sicca rupees, invested by him in the Bengal 6 per cent. remittable loan of 1822-23.

A receiver of the testator's estate had been appointed, and interest on the loan having ceased, the receiver presented a petition to the court, for liberty to execute a power of attorney to Messrs. Forbes & Co., or some other person authorizing them to receive the funds in India, and transmit them to this country.

Mr. J. Moore, for the petition.

THE MASTER OF THE ROLLS said that the practice in such cases had been settled in a case of Wood v. Wood; and that an inquiry must be made, as to what was the usual course in such cases.

On the 19th of December, 1838, it was referred to the Master, to inquire and state to the court, what could be the most advantageous course of receiving and remitting to England the sum of 50,000 sicca rupees; and for realizing, collecting and remitting to England any other part of the testator's personal estate which might be in India; and to approve of a scheme for that purpose.

*By his report, dated the 25th of March, the Master approved of a [*426] power of attorney being sent out to Messrs. Forbes & Co. to receive the sicca rupees and any other part of the testator's personal estate in India; and by an order made the 16th of April, the Master's report was confirmed;

1839.-Low v. Carter.

and it was ordered that the petitioner should be at liberty to send out a power of attorney to Messrs. Forbes & Co. to receive the note of 50,000 sicca rupees and the proceeds thereof and any other moneys or estates belonging to the estate of the testator, and to remit the same to the petitioner; and it was ordered that the petitioner should be at liberty to authorize Messrs. Forbes to do all proper and necessary acts for that purpose.

1839: March 13.

Low v. CARTER.

The only way in which executors can obtain complete exoneration is by passing their accounts in a court of equity, and the court is, consequently, anxious not to deter them from so doing, by visiting them with the costs.

A husband transferred money in the funds into the joint names of himself and wife, for the pur. pose of making a provision for her; and by his will he bequeathed to his wife a life interest in "all his property that he was in possession of:" Held, that the stock did not pass.

A testator directed his widow "to be in possession of all his furniture, plate, glass and books, and for the time of her natural life, to receive the yearly interest and profits of all his property that he was in possession of at his death :" Held, that the widow took a life interest only in the furni ture, &c.

THE testator, John Carter, by his will, dated the 13th of February, 1834, after desiring his executors to pay his funeral and testamentary expenses, proceeded in these words:-"If my wife Elizabeth Carter outlives me, then the said Elizabeth Carter to be in possession of all my furniture, plate, glass

and books, and for the time of her natural life, to receive the yearly [*427] interest and profits of all my property that I am in possession of at *my death; and if the 3007. which is now in the hands of Messrs. David and Joseph Hyland, of Burwash, in Sussex, when I die, I request it to be taken from their hand, and put into the best stock in the Bank of England, but in no sinking fund; to be put in Elizabeth Carter's name, and she to receive the interest during her natural life. And if my wife outlives me, I request my executors will see that she be decently buried, and all expenses paid; then after that, the whole of what remains to be equally divided in four parts." He then gave one-fourth to Thomas Low and Sarah his wife, and the remaining three-fourths to other persons: and he appointed Thomas Low and James Hensley executors. The testator died on the 29th of August, 1834, and his two executors proved his will.

At the time of the death of the testator, there stood, in the joint names of himself and his wife, a sum of 3157. new 37. 10s. per cent. reduced bank annuities, which sum the testator, in the month of January, 1834, had directed his stock broker to purchase in the joint names of himself and wife, for the purpose, as he stated to his stock broker, of making a provision for his wife. There was parol evidence of the testator having, in a conversation which