1839-Low v. Carter.

took place the day before his death, said "that the said property in the Bank of England being in their joint names, he considered it belonged to his wife solely at his decease, and, therefore, he had no occasion to leave it to her by will."

The only other property of the testator was the 3007. due from Messrs. Hyland, the furniture, &c., valued at 197. 17s., and about 201.

*This bill was filed by Thomas Low and Sarah his wife and James [*428] Hensley, against Sarah Carter the widow and the other persons interested. The bill claimed the 3157. bank annuities as part of the testator's estate, and also insisted that the widow was entitled to the furniture for life only, and prayed the usual accounts.

Mr. Kindersley, and Mr. Hull, for the plaintiff, contended, that the widow. took a life interest only in the furniture; that the stock passed under the will, as being in the testator's "possession" at his death, and, consequently, that the widow was entitled thereto for life only.

Mr. Pemberton and Mr. L. Wigram, for defendants in the same interest with the plaintiff, contended, that even if the testator had transferred the funds into the joint names of himself and wife for the purpose of making a provision for her, yet the extent of the interest she was to take being undefined, the testator must have intended her to take a life interest only.

Mr. Tinney and Mr. Schomberg, contra, for the widow, contended, that she was entitled to the furniture absolutely, and that the testator had no power to bequeath the 3157. stock, which survived to his widow: Dummer v. Pitcher. (a) That the executors having taken upon themselves the duty of administering the estate, were not justified in coming to the court, where no difficulty really existed, and in incurring expenses which would exhaust the whole of this little property.

That the bill had been filed by executors, nominally for the administration of this very small estate, "but in reality for purposes of vexa- [*429] tion and to impeach the title of the defendant to the 3151. stock, to which she was entitled independently of the will, and that the bill ought therefore to be dismissed with costs.

Mr. Kindersley, in reply. The only way in which an executor can be protected is to have his accounts passed in this court: the smallness of the estate is not the fault of and does not alter the liability of the executor: the court cannot refuse to allow an executor to pass his accounts, in the only way which will secure him from future peril.

THE MASTER OF THE ROLLS --There are two questions in this case: first, whether the will passed certain stocks which were standing in the joint names of the testator and his wife at his decease; and, secondly, what interest the wife took in the furniture and other things under the will of her husband. In January, 1834, the testator caused certain stocks to he invested in the

(a) 2 Myl. & K. 262.

1839.-Low v. Carter.

joint names of himself and his wife: this stock was not then in his own possession, though it might be said to be in the possession of himself and wife and was so circumstanced, that he might have transferred it into his own name, and thus have dealt with it as he pleased.

In February, 1834, the testator made his will in which he says, "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 term of her natural life, to receive the yearly interest and profits of all my property that I

am in possession of at my death :" and the question is, whether this [*430] stock, which was standing in the joint names, passed by the descrip

tion of "all my property that I am in possession of at my death,” and I think it did not: the property was transferred into the joint names, for the benefit of the survivor, and although it was stock which the testator could in his lifetime have transferred into his own name alone, yet it was not strictly "in his possession at his death." The will operated only upon the death of the testator, and at that moment the right of the survivor took effect, and there was then no authority or power to defeat it.

As to the other point, I think that the testator meant that his wife should take a life interest only, in the furniture, plate, glass and books; and that at her death, the whole, after payment of the expenses of her funeral, were to be divided between the persons pointed out; she was to have the "possession" of these specific articles, and it appears from the will that the testator intended that she should not take more than a life interest in them.

As to the costs of the suit, I cannot conceive that any thing could be more hard, than that executors who are called on to administer estates where there are doubtful questions arising on the will, and who can be exonerated only by having their accounts passed in a court of equity, should be deterred from coming to this court, by being visited with the costs of the proceeding. Looking at the circumstances of this case, and at the decisions of this court, which show that executors can only obtain complete exoneration by having

their accounts passed in this court,(a) can I say that the executors [*431] are *not justified in seeking the opinion of the court in this case, although it has turned out, that on the principal point, there has been

a decision in favor of Mrs. Carter?

It is to be regretted that the jurisdiction of the court in such cases, cannot be exercised at a less expense; but when we so frequently see suits instituted against executors, after a considerable lapse of time, and find them held personally responsible for acts done by them in mistake, but with the most honest intention, the necessity of giving them every opportunity of exonerating themselves, by passing their accounts in this court, is obvious.[1]

(a) Knatchbull v. Fearnhead, 3 Myl. & Cr. 122.

[1] Vide Hill v. Gumme, post 540, 550.

The dividends of a sum in court being insufficient for the payment of an annuity charged upon it, a prospective order was made, for the sale, from time to time, of so much of the corpus as would, together with the dividends, be necessary for raising the amount of the annuity.

By an order of the court, dated the 5th of November, 1830, it was declared that the income of the produce of the real and personal estate of the testator, together with the accumulations arising therefrom, were subject to the payment of the defendant's, Eleanor Routh's, jointure or rent charge of 3001. a year for her life, so far as the same would extend to pay; and it was declared, that the defendant was entitled to have any deficiency in the income to answer the arrears and keep down the future payments of the said jointure or rent charge raised, from time to time, by the sale of the capital *produce of the real and personal estate of the testator, as occasion [*432] might require.

The fund in court charged with this sum of 3001. a year amounted to 48821. consols, and in consequence of the dividends being inadequate to keep down the accruing payments of the rent charge, it had fallen into arrear to the amount of 3251.

The committee of Eleanor Routh, who was a lunatic, presented a petition praying a sale of sufficient part of the 48821. to raise the arrears, and for a sale, half yearly, of so much of the capital sum as would be sufficient with the accruing dividends, to answer the annuity of 3001. a year, and for payment thereof accordingly.

Mr. Tinney, in support of the petition.

THE MASTER OF THE ROLLS, on a former day, doubted whether a prospective order could be made for raising the deficiency out of the corpus of the fund, but he now made the order on the authority of, a case of Swallow v. Swallow. (a)

V. C.-1831: March 28.

(a) SWALLOW v. SWALLOW.

A sum of money, in the 5 per cents, set apart to answer an annuity, was reduced to 3 per cents, and the dividends having become insufficient to pay the annuity, the court made a prospective order for the sale, from time to time, of a sufficient part of the capital to meet the accruing payments of the annuity.

THE order in this case stated the petition of Elizabeth Prince Swallow, setting forth that John Stuart by his will bequeathed to the petitioner 4007. a year, payable half yearly, during her life, and charged upon the whole of his personal estate; and that he gave his residuary estate to Henry Stuart and his issue; and further setting forth, that by a codicil the testator gave the petitioner an annuity of 1001. a year to be paid out of the property of John Townsend, to which the testator was entitled ; that in December, 1803, it was ordered that the dividends on the sum of 3333l. 6s. 8d., which had been transferred into the name of the accountant general, should be paid to the petitioner for life, to answer the annuity of 1001. a year; and in March, 1805, it was ordered that 80001. navy 5 per cents should be carried over aud placed to the petitioner's annuity account, and the dividends should be paid to the petitioner for life, to answer the growing payments of the annuity of 4007.; that the annuities were carried over and were converted into 78341. 198. 10d.

1838.-Silvertop v. Ramsay.

The order after directing payment of the arrears, proceeded, " And [*433] on or after the 6th day of January next, *and on or after every succeeding 6th day of July, and the 6th day of January, during the life of the defendant, Eleanor Routh, or until the further order of this court, it is ordered that so much of the residue of the said bank 31. per cent. annuities or any other bank annuities, which may be standing in the name of the said accountant general in trust in this cause, as will be sufficient to [*434] *raise such part of the sum of 150l. as and for one half yearly or two quarterly payments of the jointure or annuity of 3007. a year in the petition mentioned, as the interests which shall have accrued due at the time of such sale on the residue of the said bank annuities, or on such other bank annuities as aforesaid, shall be insufficient to pay (the amount of such deficiency to be from time to time verified by affidavit) be sold."

1838; November 13.

SILVERTOP v. RAMSAY.

In a suit for the admininistration of the estate of a testator, a solicitor carried in a claim for his bills of costs, which, on taxation, were reduced by more than one-sixth: Held, that the solicitor ought to pay the costs of the taxation.

IN July, 1830, it was referred to the Master to take an account of the debts, funeral expenses and legacies of the testator; and the Master having made his report, the cause was heard, on further directions, in July, 1831. In May, 1832, on the petition of Mr. G. D., who had formerly been a solicitor, it was referred to the Master to inquire and state to the court whether the testator was, at the time of his death, indebted to G. D. in any and what sum.

G. D. carried in a claim before the Master for his bills of costs, amounting to 28711.; on taxation they were reduced to 21417., and which sum, after deducting 3731. already paid, the Master reported due to G. D.

3 per cents, which produced an income of 2751. only, and the annuity of 4001. had fallen into arrear to the extent of 621.: whereupon it was ordered that the costs of this application should be taxed, and that a part of the 78341. 19s. 10d. 31 per cents should be sold for payment thereof, and of the 621. And it was ordered, "that so much of the residue of the said 78341. 19s. 10d. new 3 per cent. bank annuities, or of any other new 3 per cent. bank annuities which might thereafter be standing in the name of the said accountant general in trust in the said first mentioned cause, to the last mentioned account, as would be sufficient to raise such part of the half yearly payment of the petitioner's annuity of 4007. in the petition mentioned, as the interest to accrue half yearly on the said new 3 per cent. annuities, should be insufficient to pay, (such deficiency to be from time to time verified by affidavit,) be from time to time sold during the life of the petitioner, or until the further order of the court, with the privity of the said accountant general, &c. And it was ordered that the same, when so paid into the Bank, together with the interest to accrue due on the said annuities from time to time, be thereout paid to the petitioner Elizabeth Prince Swallow.

(a) See Davies v. Wattier, 1 S. & Stu. 463; Kendall v. Russell, 3 Sim. 424; May v. Bennett, Russ. 370; Arundell v. Arundell, 1 Myl, & K. 315.

1839.-Jacob v. Lucas.

G. D. now presented a petition, praying for the confirmation of the report, and for an order for payment of the 17687. and the question raised was, as to the costs of the taxation.

*Mr. Pemberton and Mr. Jemmett, submitted that there was [435] nothing to take this out of the usual rule, which threw the costs of

taxation on the solicitor when one-sixth part of the bill was taken of by taxaation.

Mr. Kindersley, contra, argued that the rule was laid down, by the statute(a) alone, and applied to those cases only, where the taxation took place under the statute, and not to a case like this, where a party came in to establish a legal demand in a suit, in which case there was no distinction whatever between a solicitor and any other persons having a demand against the assets.

THE MASTER OF THE ROLLS:-This gentleman asked the assistance of this court to establish his legal demand for his bill of costs, and for that purpose it was necessary for him to resort to a taxation, which has reduced his demand more than one-sixth. In such cases, the statute provides that the solicitor shall pay the costs, and it seems to me that this also is a very proper case in which he should pay the expenses.[1]

*Between MARY JACOB AND ROBERT ROTHWELL LUCAS AND [*436] OTHERS, INFANTS, BY THE SAID MARY JACOB, THEIR NEXT

FRIEND, PLAINTIFFS; and ROBERT TRISTRAM LUCAS AND OTHERS, DEFENDANTS.

1839; May 6.

M. J., the personal representative of a deceased trustee, together with infants, beneficially interested in a fund, by M. J. their next friend, were co-plaintiffs in a suit, the object of which was to make the tenant for life and his interest in the trust funds answerable for part of the trust funds which the tenant for life had applied to his own use; there were other parties interested in the restitution of the fund, who were made defendants. The court, being of opinion that the trustee's assets might, in the progress of the suit, have to be resorted to for the purpose of making good the breach of trust, and that the interests of the infants and of M. J. would thereby ultimately become conflicting, dismissed the bill with costs, on the ground of the misjoinder of plaintiffs, but without prejudice to any new bill.

STUCKLEY LUCAS, by his will, directed his children to assign to the trustees of his will certain stocks, funds and securities, to which they would be

(a) 2 G. 2, c. 23.

[1] In Barton v. Pyne, 1 Hare, 493, Wigram, V. C. repudiates the idea that the jurisdiction over solicitor's bills, was derived from statute. The marginal note in that case is; "In a suit against a solicitor for an account in the taking of which the bills of costs of the defendant are taxed, and reduced more than one-sixth in amount, the court has jurisdiction to give or withhold the costs of taxation, according to the circumstances and justice of the case." The V. C. says; VOL. I. 34