1839. Mills v. Finlay. perintended the repairs, &c. ; and before the institution of the suit had effected sales of forty-four lots of the property. By this petition, which stated he had been employed one hundred and thirty-eight entire days, besides parts of other days in the execution of the trusts of the will, he sought a declaration, that he might be allowed, in passing his accounts, the sum of 2897. 16s. for his loss of time, at the rate of two guineas a day. Mr. Parry, in support of the petition. Mr. Stinton and Mr. T. H. Hall, contra, contended that the law was now clearly settled that a trustee was not entitled to a remuneration for his loss of time, *Moore v. Frowd ;(a) that the compensation "for loss of [*560] time," referred to by the testator, was that of counsel and professional men employed, and not of the trustee. Mr. Parry, in reply. The Master of THE ROLLS considered that, upon the terms of the will, the petitioner was entitled to remuneration for his loss of time, and that it must be referred to the Master to settle the amount: but as the petitioner had made no claim by his answer, and had thus given no opportunity of referring the matter to the Master, when the case was before the court on a former occasion, he must pay the costs of the petition. 1839 August 10. MILLS V. FINLAY. A client deposited with his solicitor the title deeds of an estate, to secure a sum of money then due, and certain costs then incurred: the court, on the petition of the client, ordered the deeds to be delivered up to the client, on his paying into court a sum sufficient to cover the solicitor's claim, and directed the usual taxation. MR. EDWARD RICE had been employed as solicitor for the plaintiff, Captain Mills, in this suit, to which Mr. R. had been made a defendant, in consequence of his having a charge on the shares of Captain Mills and his sisters, for securing any advances not exceeding 2000. In respect of this charge Mr. Edward Rice, in August, 1838, received 21437. Captain Mills became the purchaser of certain freehold property under the decree; and on the 3d of August, he deposited the title deeds with Mr. E. Rice, and at the same time signed the following memoran- [*561] dum:-" Mr. Rice, I hereby admit myself to be indebted to you in the sum of five hundred and thirty-one pounds, four shillings and four pence,. exclusive of the costs incurred by Gibbon, and of completing the purchase of the freehold houses bought by me at the sale Mills v. Finlay, and do hereby, as security for the payment thereof, with 5 per cent, authorize you to (a) 3 Mylne & Cr. 45, and see Collins v. Carey, post.[ Vol. 2, 128. Hopkinson v. Roe, ante, 83. 3 Myl. & Cr. 51, n. 2.] 1839.-Mills v. Finlay. obtain and retain the title deeds relating thereto, upon your releasing what, if any, security you may have against me personally, on the several shares of my late sisters, Louisa and Emmeline. This memorandum is to be taken as subject to the law costs being examined by me, and in the event of any mistake, to be corrected accordingly. 3d August, 1838, Jas. Mills." Some other transactions and proceedings took place between Captain Mills and Mr. Rice, and Captain Mills afterwards changed his solicitor. Being unable to maintain a settlement of the accounts between him and Mr. Rice, he presented a special petition, praying that on payment by him into court of the sum of 3501., or such other sum as the court should direct, Mr. Rice should deliver up the title deeds, papers and writings, belonging to the petitioner, and for a reference to the Master to tax the bills of Mr. Rice, and ascertain the amount due to him, in respect of all his claims from the petitioner, and for consequential directions. Mr. Pemberton and Mr. J. Moore, for the petitioner. Mr. Stinton, contra, contended that this application was irregular in form, as the petitioner might have obtained the order of course for the taxation of his solicitor's bills, without coming to the court on a special petition; and secondly, that it was contrary to the practice of the court to order the [*562] delivery up of *deeds deposited as a security, before the money had actually been paid into the hands of the party holding them as a se curity.(a) Mr. Pemberton, in reply, said there was this specialty in the case,-it was a dealing between a solicitor and his client. THE MASTER OF THE ROLLS-I do not consider this application irregular a solicitor holds these title deeds as a security for the whole of his claim, and what is asked is, that he may give up the deeds on payment into court of a sum sufficient to cover that claim. This being done, I do not think the solicitor ought to be permitted to retain the deeds. I have no doubt, except as to the sum to be paid into court. I think that Mr. Rice has a right to have the full amount paid in; and if he will inform the court, by affidavit, that the sum, which appears from the affidavit filed in support of the petition to be due, is inadequate, I will see that he has a sum paid into court sufficient to cover his claim and to secure him.[1] He is the plaintiff's solicitor, and I look upon him wholly in that character on this occasion. My intention is that he should have full security; but it would be unjust (a) See Livesey v. Harding, ante, 343, and the cases there cited. [1] Where the client makes a summary application to the court, against his attorney or solici tor, instead of instituting a suit against him to compel such attorney or solicitor to do him justice, the later is entitled to the benefit of using his own affidavit in resisting such application. Merritt v. Lambert, 10 Paige, 352. 1839.-Tawney v. Ward. to allow him to retain his client's title deeds, if a sum of money sufficient to meet the whole of his demands is deposited in court.[1] 1839; June 27, July 19, 23, 24. TAWNEY v. WARD. [*563] A testator having given property to his wife while unmarried, and after her decease to his children" then living :" Held, that the children living at that time, alone would take, unless it appeared upon the construction of the whole will, and to effectuate a clear intention appearing in other parts of it, that the words "then living" ought to be rejected as repugnant, or to be qualified in order to give effect to other words inconsistent with them. A testator, having three children, gave his property to his wife so long as she lived unmarried, and if she married and her children resided with her, an allowance was to be made to her; and "after her decease the testator bequeathed his property equally between his children then living;" he directed his farm to be allotted as part of his son Thomas' share, and "he wished whoever might enjoy his farm, if unfortunately his children should fail of heirs,” should take his name; and he directed his daughter's share to be secured for her separate use. The son died in the life of the mother: Held, that he took no interest in the property. The testator desired his daughter's share to be secured in the funds, and for his trustee to pay her the dividends; and he wished that neither the principal or interest of the funds should be subject to the control of any husband she might marry, but that the same should stand subject to her will only, properly executed, whether covert or sole, at her decease: held, that the daughter took an absolute interest for her separate use. A feme being entitled to a reversionary interest in property for her separate use, both she and her intended husband separately covenanted to settle any property which she, or her husband in her right, was or might become entitled to, upon certain trusts: the above interest having fallen into possession, held, that it was subject to the trusts of the settlemeut. The testator desired his daughter's share to be secured in the funds, and for his trustee to pay her the dividends; and he wished that neither the principal or interest of the funds should be subject to the control of any husband she might marry, but that the same should stand subject to her will only, properly executed, whether covert or sole, at her decease: Held, that the daughter took an absolute interest for her separate use. A feme being entitled to a reversionary interest in property for her separate use, both she and her intended husband separately covenanted to settle any property which she, or her husband in her right might become entitled to, upon certain trusts; the above interest having fallen into possession, held, that it was subject to the trusts of the settlement. THOMAS GHORST TAWNEY, the testator in this cause, at the date of his will, had three infant children, Thomas, James and Anne. By his will, he gave his stock in the funds and his farm to a trustee, whom he also appointed executor, on trusts, which he declared as follows:-"“ First, to employ Mr. Webster to put the above funds and farm under the care of the Court of Chancery, in order to my said trustees paying all the interest Wickens v. [1] As to the solicitor's lien, see further Livesey v. Livesey, 1 Russ. & M. 10. Townsend, id. 361. Heslop v. Metcalfe, 3 Myl. & Cr. 183, 190, n. 1. S. C. 8 Sim. 622. In the Matter of Rice, 2 Keen, 181, 183, n. 1, 2. Bawtree v. Watson, id. 713, 719, n. 1. Cane v. Martin, 2 Beav. 584. Brassington v. Brassington, 1 Sim. & Stu. 455, 457, n. 1. Warburton v Edge, 9 Sim. 508, 514, n. 1. Perkins v. Bradley, 1 Hare, 231. Hall v. Laver, id. 571, 577. 1839.--Tawney v. Ward. and rent as they become due to my dear wife, so long as she remains unmarried; but if she marries, then such payments to cease, except my children, as seems very likely and I hope, will live with their mother, then a handsome allowance shall be continued to be paid so long as my said child or children shall live with their mother, who, upon all occasions of [*564] difficulty, will apply to their *excellent mother for advice. If my dear wife continues unmarried she shall receive the whole rent and dividends as long as she lives; and after her decease I bequeath my property equally between my children then living. And I will and direct, if possible, my farm may be allotted as part of my son Thomas' share, and wish whoever may enjoy this farm, if unfortunately my children should fail of heirs, should take the name of Tawney; and after the order of reversion, if my children fail, it shall go thus, Thomas Hardiman, Francis Hardiman, Tawney Cutlack, William Cutlack, and their male heirs,-legal male heirs. My daughter's share I would have secured in the funds thus:-for my excellent trustee and friend to pay her the dividends as they become due; and it is my further will that neither principal or interest of the said fund here bequeathed shall be subject to the control or debts of any husband she may marry, but the same shall stand under the direction of the Court of Chancery, subject to her will only, properly executed." "My copyhold lands are of inheritance and principally bought by me, but I have made a surrender to the use of my will, though my son Thomas would take them without a will." The testator's three children survived him: Thomas attained twenty-one, but died in January, 1837, in the lifetime of the testator's widow; Elizabeth Tawney, the widow of the testator, died in October, 1837; and James and Anne survived him. Mr. Pemberton, Mr. Kindersley and Mr. O. Anderdon, on the behalf of the plaintiff, contended that Thomas, notwithstanding his death in the life time of his mother, acquired a vested interest in a third share of the [*565] testator's property. They cited Howgrave v. Cartier,(a) *Torres v. Franco,(b) Maitland v. Chaile, (c) Tucker v. Harris, (d) Whatford v. Moore,(e) Woodcock v. The Duke of Dorset, (g) and see Wordsworth v. Wood, post.[1] Mr. Tinney and Mr. Turner, contra, for the defendant Mrs. Proctor (the daughter Anne,) insisted, that on the death of the testator's widow, the whole. property vested in equal shares to the two children then living. Mr. Teed, for the defendant Ward. Mr. Pemberton, in reply. July 19.-THE MASTER OF THE ROLLS:-The words "then," which is (a) 3 V. & B. 79. (d) 5 Sim. 538. (b) 1 Russ. & M. 649. (e) 7 Sim. 574; and 3 Mylne & C. 270. (c) 6 Mad. 243. [1] Reported 2 Beav. 25. Affirmed by Lord Cottenham, 4 Myl. & Cr. 641. 1839. Tawney v. Ward. used by the testator, refers to the time of his wife's death; and the children who were living at that time are the only children to take under the gift, unless it should appear, that upon the true construction of the whole will, and to effectuate a clear intention appearing in other parts of it, the words "then living" ought to be rejected as repugnant, or to be qualified in order to give effect to other words inconsistent with them. The testator gave the income of his property to his wife for life, only in the event of her çontinuing unmarried; in the event of her marrying, he directed that her income should cease, unless his children should live with her, in which case he wished a handsome allowance to be made; he has not directed what was to be done with any part of the income, in the event of his wife marrying and all or any of the children not [*566] choosing to live with her. It is evident from this and other parts of the will, that he had taken a very imperfect view of the contingencies which a prudent man would have provided for; but the only question is, whether there is any thing in this or the other clauses of the will inconsistent with the words "then living," as describing the children who were to take on the death of his wife; and I think that all which can be collected from this clause is that the testator wished an allowance to be made to his wife for such of his children as should be living and residing with her after a second marriage. He has not provided any maintenance for the children during their mother's widowhood, or for such children as might not reside with her after her marriage; and I think that no inference as to the time of vesting can be deduced. from so imperfect a direction as this.[1] Having bequeathed his property equally between his children living at the death of his wife, he had particular regard to the shares of his son Thomas and his daughter Anne: he wished Thomas to have the farm allotted in his share, and he wished his daughter's share to be secured in the funds, and he gave special directions as to each. As to the son's share he says, "I will and direct, if possible, my farm may be allotted as part of my son Thomas' share, and wish whoever may enjoy his farm, if unfortunately my children should fail of heirs, should take the name of Tawney; and after the order of reversion, if my children fail, it shall go thus:-Thomas Hardiman, Francis Hardiman, Tawney Cutlack, William Cutlack, and their male heirs-legal male heirs. Upon this it may be observed, that if the share of Thomas had intended to vest on the testator's *death, there would have been no con- [*567] tingency, and no difficulty in ordering that the farm should be taken as part of it, and that whatever might have been the testator's real meaning when [1] "The principle upon which the courts, both of law and equity, act in construing wills, is to give the preference to that construction which is in favor of the vesting of the gift." Shadwell, V. C. Butler v. Lowe, 10 Sim. 324. And the presumption is in favor of a child's taking a Torres v. Franco, 1 Russ. & M. 654. 44 vested interest. VOL. I. |