1844.-Beck v. Burn.

and of the issue of any such child deceased in the lifetime of the said testator's widow, as were living at the death of the testator's said widow, such issue taking the share which their parents would have taken if living at the death of the testator's said widow." And that William Wilson, Samuel Verry, and Robert Stone did not respectively become entitled to any share or interest in the said testator's residuary estate.

See Leake v. Robinson, 2 Mer. p. 387; Davies v. Fisher, 5 Beav. p. 209.

principles involved in the decision in the text, the following observations of ViceChancellor Wigram, in Leeming v. Sherratt, 2 Hare, 14, 17, may properly be introduced in this place. The facts of the case are immaterial to the present purpose. The Vice-Chancellor says: "It was said that the gift of the residue is future-that there is no gift of such residue, except in the direction to pay, and that it is a settled rule, in the construction of wills relating to personal estate, that where a legacy is given at a future time, and there is no gift of the legacy, except in the direction to pay, the legatee can claim nothing unless he was living at the time when the legacy becomes payable. That the court has, in many cases, expressed itself very nearly in this manner, I do not deny ; but I am satisfied that I should be misapplying the rule,"-[by extending it to the case under discussion.] The rule of construction referred to (as I understand it) is simply this;—Courts of Equity, in the construction of wills relating to personal estate, follow the rules of the civil law. By that law, when a legacy is given absolutely, and the payment is postponed to a future definite period, the court considers the time as annexed to the payment, and not to the gift of the legacy, and treats the legacy as debitum in præsenti solvendum in futuro. This rule being established, a question was made, whether in the simple case of a direction to pay a legacy at a future period, without any gift of the legacy independently of that direction, the legacy would be transmissible to the representatives of the legatee dying before the time of payment and the court in that simple case, has sometimes considered the time of pay. ment as annexed to the legacy itself, and not merely to the payment of it. But the court, in so deciding, has not, I conceive, intended to decide that the gift of a legacy, under the form of a direction to pay at a future time, or upon a given event, was less favorable to vesting, than a simple and direct bequest of a legacy at a like future time, or upon a like event, but in fact has attempted only to assimilate those cases to each other, and to distinguish both from the class of cases to which I first referred, in which there has been a gift of the legacy, and also a direction to pay at a future definite time distinct from the gift.-I have examined most of the reported cases upon the subject, and am confirmed in the opinion I entertained during the argument, that the question is one of substance and not of form. The question in all the cases has been, whether the testator intended it as a condition precedent, that the legatees should survive the time appointed by him for the payment of their legacies; and the answer to this question has been sought for out of the whole will, and not in particular expressions only, like those relied upon in this case." And in a subsequent passage, (p 21,) addressing himself more directly to the case before him, the Vice Chancellor says; "The question therefore I am now

1844.-Beck v. Burn.

bound to consider is, whether (excluding the cases in which there has been a gift of the legacy distinct from the direction for payment) the testator has made the shares in the residue of such of his children as should die without leaving issue, contingent upon their surviving the time when the youngest should attain twenty-one. In considering this question, I may be bound to advert to the circumstances, that the gift of the residue is future, and that there is no gift of such residue, except in the direction for payment; but they are only circumstances, and certainly not conclusive. The persons to whom the residue is given, are all the testator's children as tenants in common; and the clause which afterwards substitutes the issue of a deceased child for the parent dying leaving lawful issue, shows or strongly tends to show, that the persons to whom, in the first instance the residue was given, meant all the testator's children who should survive him, and not all those only who should be living when the youngest should attain twenty-one. Then the residue is given to trustees. For whom are they trustees? Obviously for all the children of the testator who should survive him, except so far as he should otherwise direct." &c. &c.-A testa'or gave his residuary estate to trustees upon trust for his wife for life, if she should so long continue his widow; and from and after her death or marriage, upon trust to pay and divide the whole thereof equally among all and every the testator's nephews and nieces, share and share alike, within six months after they should become entitled thereto; it was held, that the residuary share of one who died in the lifetime of the widow passed to his represen tatives; that is, that it was a vested interest. Wigram, V. C. "I have not the least doubt upon the case, the residuary clause does not direct the payment to be at the expiration of six months, but within six months after the legatees shall become entitled. It was said that one of the nephews having died in the lifetime of the tenant for life, had acquired no interest in the legacy,-that, by reason of the direc. tion that the executors should "pay and divide," this was a future gift, to commence when the parties should become entitled to receive the fund. I had to consider a similar point in the case of Leeming v. Sherratt. I then explained what appeared to me to be the principle of these cases; and I endeavored to show, that the authorities confirmed my view that there was no such force as the defendants have contended for in the words 'pay and divide.' If there is a gift to a person at twentyone, or on the happening of any event-as occurred in the case of Leuke v. Robinson, (2 Meriv. 363,) where there was a gift to persons upon their attaining twentyfive, or a direction to pay and divide when a person attains twenty-one, there, the gift being to persons answering a particular description, if a party cannot bring himself within it, he is not entitled to take the benefit of the gift. There is no gift in those cases, except in the direction to pay, or in the direction to pay and divide. But if, upon the whole will, it appears that the future gift is only postponed to let in some other interest, or, as the court has commonly expressed it, for the benefit of the estate, the same reasoning has never been applied to the case. The interest is vested notwithstanding, although the enjoyment is postponed." Packham v. Gregory, (February, 1845,) 4 Hare, 396. See further Wordsworth v. Wood, 4 Myl & Cr. 641; S. C. 2 Beav. 25: Watson v. Hayes, 5 Myl. & Cr. 125, 133; Saunders v. Vautier, Cr. & Ph. 240; Kimberley v. Tew, 2 Conn. & Law. 366; Salisbury v. Petty, 3 Hare, 86.

Taxation ordered after payment under protest, the payment being insisted on as a condition for parting with a deed necessary to complete a purchase.

A party named trustee without his sanction, and called on to disclaim, is authorized in taking the opinion of counsel as to his obligation to execute a disclaimer. Generally country solicitors are not allowed the costs of a journey to London to examine abstracts there, unless there be some specialty.

THIS was a petition for the taxation of a bill of costs, which had been paid.

The petitioners had sold an estate vested in them as trustees, and two terms of years having, on a former purchase, been assigned to Mr. Curling to attend the inheritance, the petitioners applied to him to re-assign them to new trustees for the present purchaser. This he refused to do, alleging that his name had been used without his authority, and that he had never accepted the trusts.

Mr. Curling was thereupon requested to execute a deed of disclaimer; he ultimately consented to do so, upon an undertaking to pay his costs and expenses.

Mr. Tryon, who was residing at Deal, was employed by Mr. Curling as his solicitor, on the occasion. He perused the abstract of the different deeds, and also the deed of disclaimer, and he took the opinion of counsel as to Mr. Curling's obligation to execute the deed of disclaimer, and made a journey up to London to compare the deeds with the abstract. In August, 1843, he delivered his bill of costs, amounting to 261. 18s., in which he charged 71. 78. for obtaining counsel's opinion, and 127. for his journey to London and expenses there. The bill having been objected to, Mr. Tryon offered to reduce it by the sum of

51. 5s., but refused to part with the deed of disclai.. e [497] until he received payment of the balance.

The deed of disclaimer being necessary for the completion of the purchase, the amount of the bill after deducting the 51. 5s. and making an addition of 13s. 4d. was, on the 23d of Novem

(a) Ex relatione,

1844. In re Tryon.

ber, 1843, sent by a clerk to Mr. Tryon's London agents, with a letter, stating that the sum was paid under protest, for the purpose of obtaining the deed, and without prejudice to the petitioners' right to tax or otherwise question the bill of costs. On the same day, Mr. Tryon's agents wrote to the solicitor of the petitioners, stating that they had placed the sum of 221. 6s. 4d. to Mr. Tryon's credit with the executors, which, according to his instructions, they had received in satisfaction of his claims, for the purpose of closing this account and avoiding all dispute.

The petitioners' solicitor, however, immediately returned an answer, stating that the 221. 6s. 4d. was paid upon the terms stated in the letter left, and upon no other; and if they did not think fit to receive it, he offered to return the deed, on receiving back the money, and to consider that they refused to deliver up the deed.

In answer to this letter, Mr. Tryon's agents stated, that they could not pay back the sum received in exchange for the deed, on its return, as it was useless to Mr. Tryon's client.

A petition was presented, praying the taxation of the bill.

Mr. Roundell Palmer, for the petitioners, contended that the bill having been paid under protest, ought now to [*498] *be taxed; that counsel's opinion was unnecessary, not

having been taken with a view to assist the execution of the deed, but to determine the propriety of disclaiming a trust of two terms of years which he had refused to accept, and that in addition to this, Mr. Tryon had been informed that such a course would be objected to as unnecessary. Secondly, that it was not necessary for a solicitor, having an agent in town, to come to London to examine deeds, when that duty might be as well performed by the London agent, or by his clerk, as by the principal.(a)

Mr. Rolt, contra, contended that there ought not to be any taxation of the bill, which had been finally settled. That Mr. Tryon had made the deduction of 51. 5s., and parted with the deed of disclaimer on the terms of receiving the 221. 6s. 4d., and

(a) Crossley v. Parker, 1 Jac. & W. 460: Alsop v. Lord Oxford, 1 Myl. & K. 564; Horlock v. Smith, 2 Myl. & Cr. 523.

1844. In re Tryon.

that the account having been thus finally settled by agreement,

ought not to be re-opened.

He argued also, that the items complained of were proper.

THE MASTER OF THE ROLLS, on the whole, was of opinion, that the payment had been conditional, though, if it had been absolute, it might, upon the special circumstances, have still been subject to taxation.[1]

That Mr. Curling's name having been used without his authority, he was justified in taking the opinion of counsel on the matter; [2] but that as to the travelling expenses, the general rule was not to allow such costs unless there [*499] were some specialty, and this would have to be considered by the master on the taxation, which he must direct.[3]

He therefore ordered a taxation of the items complained of, and reserved the question of costs.

NOTE. The taxing master, on taxation, disallowed the charges for the journey, &c., and allowed 21. 28. only for the examination of the deeds; but he allowed the costs of the opinion, with some deduction. The parties then arranged the matter, and the case was not again brought before the court.

1844 April 23.

HUSSEY V. DIVETT.

A bill of revivor and supplement was filed to bring new trustees before the court. It was supplemental as to the trustees, but a bill of revivor as regarded the other defendants. Held, that it was only necessary to set down the bill to be heard as against the new trustees.

[1] Grove v. Sansom, 1 Beav. 297. Massie v. Drake, 4 Beav. 433.

[2] Knight v. Martin, 1 Russ & M. 70; Watts v. Turner, id. 634; Howard v. Rhodes, 1 Keen, 581; Coventry v. Coventry, id. 758; Holford v. Phipps, 3 Reav. 434; Thorby v. Yeats, 1 Yo. & Coll. C. C. 438; Campbell v. Home, id. 664; Whitmarsh v. Robertson, id. 715; and see Bowman v. Rainetaux, 1 Hoff. Ch. Rep. 150.

[3] Malcolm v. O'Callaghan, 3 Myl. & Cr. 52.