Goode v. West.

separate use; and after the decease of either of them, the said Edward Ring and Ann his wife, upon trust for the survivor of them for life; and after the death of the survivor of them, upon trust to pay over the said one fourth part to the plaintiff, Thomas Goode, who was the son of Mrs. Ring by a former marriage. On the 6th November, 1846, the defendants, West and Freeman, received the one sixth share of Mrs. Ring in the estate of Sayer, the testator, amounting to the sum of 30311. 5s. 6d., and paid thereout the 9507., in manner directed by the settlement, thus leaving a sum of 20811. 5s. 6d. in their possession upon the trusts of the settlement. On the 25th November, 1846, this sum was invested by them in the purchase of 10887. 8s. 11d., 3l. 5s. per cent. Bank Annuities, and the dividends thereof were paid by them to Mrs. Ring till April, 1848, when the fund was sold out, and the proceeds, amounting, after the deduction of the expenses, to a net balance of 17771. 13s. 4d., lent by the trustees upon mortgage. Mrs. Ring survived her husband, Edward Ring, and died in January, 1850, the income of the residuary trust premises comprised in the settlement having been paid to her till October, 1849. The claim sought to have the 17777. 13s. 4d., and the arrears of interest from October, 1849, administered under the direction of the court. At the hearing of the claim affidavits were read on behalf of the plaintiff and defendants, from which it appeared that a correspondence had been carrying on between the parties from January to November, 1850, in which it was agreed that 4441. 8s. 5d. was due to the plaintiff in respect of the principal, and 177. 12s. 2d. in respect of the interest of his share of the mortgage fund, and in which the defendants offered to pay those sums to the plaintiff on his executing a release, and either delivering up the deed of appointment of June, 1845, or furnishing to the defendants an attested copy thereof, accompanied with a covenant to produce the original at his expense. These terms were resisted by the plaintiff, who agreed to execute and pay the expense of a deed of release, but insisted that the expense of procuring an attested copy of the deed of appointment, and of a covenant to produce the same, should be borne by the defendants. Finally, on the 27th November, 1850, the defendants paid into court, under the provisions of the Trustee Indemnity Act, 10 & 11 Vict. c. 96, extended by the 12 & 13 Vict. c. 74, the sums of 4441. 8s. 5d. and 177. 12s. 2d., in respect of the plaintiff's one fourth of the trust fund and interest, minus the sum of 251. deducted by them for costs alleged to have been incurred by them in respect thereof.

The Solicitor-General and Younge, for the plaintiff, contended that the plaintiff was not bound to regard the fund paid into court as his share of the trust fund, but that he was entitled to have the whole 17777. 13s. 4d., and interest, administered under the decree of the court. The trustee Freeman, who was a solicitor, had acted, professionally throughout the matter, and was entitled, therefore, only to his costs out of pocket. The sum of 251., which had been deducted in respect of those costs, was excessive. As the plaintiff disputed such deduction, he could not proceed under the Trustee Indemnity Act, which

Goode v. West.

provided no means of making the costs deducted by the trustees the subject of inquiry. Had the plaintiff proceeded under the act, he would have been bound by that deduction. In re Bloye's Trust, 1 Mac. & G. 488.

J. Bailey and Simpson, for the defendants, the trustees, contended that the case was a fit one for proceeding under the act. The amount set apart in respect of the plaintiff's one fourth of the trust fund, and interest thereon, had been agreed to and approved by him throughout the correspondence; the only matter in dispute being the expense of the covenant to produce the deed of appointment, and of procuring an attested copy thereof. The amount so agreed upon having been paid into court under the act, the propriety of the deduction of 251. was substantially the only matter upon which relief could be given upon a claim. As to the fund paid in, the jurisdiction of the court by bill or claim was gone. The case appearing upon the claim was not the case upon which the court was called upon to adjudicate. The claim ought, therefore, to be dismissed, for in suits by claim the parties were bound to proceed secundum allegata et probata. (Penny v. Penny, 9 Hare, 39; s. c. 4 Eng. Rep. 55; Johns v. Mason, 9 Hare, 29; s. c. 3 Eng. Rep. 272.) Upon the case as it stood on the claim, it was impossible for the court to see its way to a decree, and upon that ground also it ought not to be entertained. (Eccles v. Cheyne, 15 Jur. 744; s. c. 5 Eng. Rep. 212.)

The Solicitor-General replied.

Sir GEORGE TURNER, V. C., said that a claim had a short time previously come under his consideration, upon which he had expressed an opinion upon a point which also involved the case before him. That was a claim for the redemption of a mortgage; and upon the hearing, it came out upon the affidavits that there had been a release of the equity of redemption. The plaintiff in that case had filed the claim without noticing the release of the equity of redemption; and he (the Vice-Chancellor) on that occasion expressed an opinion which he still adhered to, viz. that parties resorting to the summary jurisdiction of the court upon claims are bound to state the facts of the case which are within their knowledge, and that they are not justified in bringing a case before the court, not as it really stands, but as it would have stood in the view the parties may entertain of what relief they are entitled to. If they put before the court a case not fully stating the facts, the court ought not to entertain the claim, but dismiss it, whatever course it might pursue to preserve the rights of the parties on a claim, if properly brought. The claim before him was filed, stating a settlement, under which 1777. 13s. 4d. was settled upon trustees, as to one fourth, for a certain person for life, and, subject to the life interest, for the appointee of the tenant for life, and as to the remaining three fourth parts of the fund, subject to distinct and separate trusts. Before the claim was filed, it was known to the plaintiff, from the 27th November, 1850, that the three fourths had

Goode v. West.

been severed from the one fourth, and that the one fourth had been paid into court under the Trustee Indemnity Act. The claim took no notice whatever of the application of the fund, but sought to have the whole 17777. 13s. 4d. administered under the decree of the court.

Until set right by higher authority, he (the Vice-Chancellor) must entertain a strong opinion that a claim of this kind should state to the court the actual facts of the case; and that if it withholds those facts, and takes the chance of relief resulting from what may turn up upon the affidavits, it ought not to be adjudicated upon. It was the duty of the plaintiff, upon a claim, to proceed secundum allegata et probata; and as the case suggested by the claim was not the case the court was called to adjudicate upon, on that ground he thought the claim must be dismissed. The question was, whether it should be dismissed with or without costs; but, however that might be, it would be dismissed without prejudice to any other proceeding the plaintiff might be advised to take. With regard to what had been done by the trustees, no doubt the jurisdiction of the court by bill was gone as to the fund paid by them into court under the act. The enactment of the act was to the effect, that the trustees may pay into court any moneys, and that such payment into court shall be a discharge of the trustees as to what they shall so pay in. If the act had said all moneys, and part only were paid in, it might well be contended that the original jurisdiction of the court by bill remained. The distinction, however, was, that the act said any moneys, and that payment into court shall be a discharge as to those. He was of opinion that the remedy of the plaintiff as to the sum paid in could be prosecuted only under the statute, and not under the ordinary jurisdiction of the court by bill or claim. The effect of that was, that the case appearing upon the claim, if indeed it could be entertained at all, was reduced to a claim for the 25l. retained in hand by the trustees for their costs. For the reasons already given, he did not think he could entertain that claim, and the only question was, whether it should be dismissed with or without costs to the trustees.

Trustees were, undoubtedly, entitled in all cases to apply under the statute for protection; and he was of opinion, on looking through the correspondence in evidence, that they had, in the present case, unanswerable grounds for coming for the protection of the statute. However, though so entitled, they were not entitled to settle their own charges against the estate. What he had to consider was, whether, if the trustees had paid over the whole trust fund, less the amount retained for costs, without prejudice to the right of the cestui que trust to dispute the amount so retained-whether, in that case, a bill could have been filed by the cestui que trust to recover the amount which the trustees had retained. Now, if it should appear, on the result of a bill of that kind, that the trustees were truly entitled to a certain amount of the costs retained by them, and there being no fraudulent conduct on their part that they had retained an amount beyond that which the law would strictly allow them for their costs, he (the Vice-Chancellor) did not think that the fact of having retained an amount beyond what they were entitled to would be a ground for

Williams v. Chard.

depriving the trustees of their costs of suit. That being so in the case. of a suit by bill, the same reasoning would apply to the case of a suit by claim. He could not, therefore, refuse the trustees their costs, though he gave them with reluctance, seeing that, by a little forbearance on their part, they might have prevented the claim from being filed. The claim was then dismissed, with costs, but without prejudice to the right of the plaintiff to proceed as he might be advised for the 251.

WILLIAMS V. CHARD and Others.1

November 6 and 8, 1851.

Demurrer to a Bill of Revivor.

After decree an administration suit abated by the marriage of a female plaintiff. Previously to such abatement the master had committed the prosecution of the suit to a pecuniary legatee, who was not a party thereto. This legatce applied to the plaintiffs to revive the suit, and on their refusal filed a bill of revivor in her own name. A demurrer to this bill was allowed, on the ground that the legatee had no right to file it without a previous application to the court.

The master's authority to commit the prosecution of a suit to any person applies only to proceedings in his own office.

An order to revive made on such a bill would be abortive.

THIS was a demurrer to a bill of revivor, filed under the following circumstances:-J. C. Forsyth, by his will, dated in 1807, bequeathed to his sons, J. C. Forsyth and J. Forsyth, since deceased, all real and personal property of which he might die seized or possessed, upon trust to raise 6000l. and invest the same, and to apply the interest of such investment for the benefit of his son Francis until he attained twentythree, and on his attaining that age, to pay the capital to him, and the securities on which the same should have been invested; and he appointed the said J. C. Forsyth and J. Forsyth executors of his said will. By a codicil thereto, after reciting his will as to the said bequest of 6000, the said testator declared that 4000l. only, part thereof, should be raised immediately after his death, in manner declared by his said will of the 60007.; and as to the 2000l., the remainder of the 60007, the same should be raised when Francis attained twenty-three, and not before; and that the trustees, or the survivor, should stand possessed of the 20007., upon trust to purchase leasehold premises or ground-rents for a term of not less than forty years, and to receive the rents and profits thereof, and pay them to Francis for the term, if he should so long live; if he died sooner, then to pay the same rents, and assign the same and the leases, to the appointees of Francis by will; and in default of appointment, upon certain further trusts therein mentioned. Francis attained twenty-three, and the sum of 40007.

VOL. VII.

1 15 Jur. 1026; 21 Law J. Rep. (N. s.) Chanc. 9.

25

Williams v. Chard.

was paid to him at that age; 2000l. were raised as directed, and 13001, part thereof, invested in the purchase of leaseholds and groundrents. In 1817, J. Forsyth died; in March, 1827, Francis became insolvent, and Harding and Gell were chosen his assignees, and the effects of Francis were duly conveyed to them. His life interest in the leaseholds was sold under the insolvency, and the purchaser continued in possession thereof until his death. By his will, dated August, 1833, Francis, after reciting the said will and codicil of J. C. Forsyth, and the power of appointment thereby given to him, appointed the leaseholds and the 20007., and all other benefit under the said will or codicil, and all other his goods and chattels, except his household furniture, to the defendants, W. Chard and E. Chard, upon trust to pay his funeral and testamentary expenses, certain of his debts, and his legacies therein given; and for these purposes to sell or mortgage the devised property, and apply the proceeds, and to invest the residue thereof, and stand possessed of the same, in trust to pay the income thereof to Elizabeth Forsyth for her separate use for life, and after her decease, to divide the principal amongst such of her children as might surviye her, equally, share and share alike, to sons at twenty-one, and to daughters at twenty-one or marriage; and he appointed the said W. Chard and E. Chard executors of his said will. In August, 1833, Francis died, and his will was duly proved by his executors, who entered into receipt of the said rents, and into possession of the said leasehold premises. In 1836, James Forsyth and Elizabeth his wife, and her four children, infants, by their father and next friend, filed their bill against the said W. Chard and E. Chard, praying that the rights and interests of the said James Forsyth and his said wife, and their said children, might be declared, and for the usual accounts and relief in an administration suit. By a decree of the 7th December, 1839, it was referred to the master to take the usual accounts. The master found, amongst other things, that Williams, afterwards plaintiff in the bill of revivor, was a pecuniary legatee under the will, and that her legacy was not paid. By the decree on further directions, the leasehold premises were ordered to be sold, with the approbation of the master, and further directions and subsequent costs were reserved. Divers proceedings were taken before the master under that decree, but no sale had yet been made. In November, 1846, the said J. C. Forsyth, the husband of Elizabeth Forsyth, died, and the suit was thereupon duly revived, but the prosecution was neglected by the plaintiffs, and the present plaintiff could not obtain payment of her legacy; she therefore applied to the master to have the conduct of the suit committed to her; and on the 26th April, 1851, the master directed that the further prosecution of the said suits and proceedings should be committed to her accordingly. Afterwards one of the infant female plaintiff's in the original suit intermarried with W. Waterhouse, whereby the suit became abated. The original plaintiffs, being applied to for that purpose, refused to revive, and the present plaintiff filed this bill of revivor in her own name, though she was not a party to the original suit. The bill was demurred to on this ground.