1867.

In the matter of the trusts of

the will of

his advisers to the case of Garrett v. Noble (a), in which it was held that the executors of a deceased manufacturer were held to be justified in continuing the works for a reasonable time, if this should be requisite for the purpose of selling the machinery and premises to advantage; and J. GILCHRIST. that they will not be charged in equity with any loss sustained by them in employing the testator's assets in so continuing the trade, if they act bona fide and according to the best of their judgments.

So also the more recent case of Collinson v. Lister (b), contains the following observations by Lord Romilly, very applicable to the present case:-"The acts which an executor, in the absence of any directions contained in the will, can do or ought to do, for the purpose of completing or rendering available the contracts or property of the testator, depend so much on the peculiar circumstances of each case, that I find it difficult to state with distinctness any proposition which shall lay down a principle applicable to all cases. Some points, however, are settled. Thus it is clear, that an executor cannot carry on the trade of the testator, except for the purpose of winding it up."

The general principle as to an executor's duty in such cases as the present is thus laid down in the same judgment of Lord Romilly, which refers to an executor advancing further sums to render a mortgage security more valuable, and sufficient to pay both charges,-"I know of no case or principle which would preclude an executor from advancing such further sum out of the assets of the testator, in order to render the property capable of paying the original mortgage, which, without such expenditure, would not have been possible; and it would, I think, be dangerous to lay down any rule which would prevent the executor from exercising his bona fide discretion in any such case; or even to charge him with a devastavit in case the result should disappoint his expectations. But if a loss should be the result, it appears to me to be a necessary preliminary condition before such advances could be allowed to him in taking his accounts, that he (b) 20 Beav. 356 (1855).

(a) 6 Sim. 504.

1867.

In the matter of

should have carefully investigated the probabilities of success, before he advanced the money of his cestui qui trust for any such purpose. The expenditure of money to recover either mortgage lost or in danger is a matter J. GILCHRIST. which requires very careful and grave consideration; and

the trusts of the will of

or the result prove that the transaction is such as only to create an additional loss, it is incumbent on the executor to show that he used every available means in his power to ascertain the chance of success; and that if he did what was unfortunate, he acted as a reasonable man would have done in similar circumstances with reference to his own property, and after he had obtained all the evidence possible relative to the chances of success or failure."

Applying these sound principles of Equity to the present case, it seems to me that the present petition involves no question of law or equity or of fiduciary duty, but is an attempt to shift upon this Court a personal responsibilitywhich undoubtedlyrests upon the executors themselves; and is dependent (1) on their own personal knowledge of all the facts of this case, and on the share and interest of Mr. Gilchrist in his important firm; (2) on the relative position of all the parties concerned and interested in the firm and its large pending transactions; and (3) on mercantile probabilities and on commercial prudence arising from detailed information utterlybeyond the cognisance of this Court.

There will, therefore, be no order made on this petition, except that the costs may be paid out of the estate, as a very proper case to have been brought before the Court, and on which to have asked my judicial opinion; though I cannot undertake to form any such opinion otherwise than as I have pointed out.

1867.

IN

SEMPILL against CAMPBELL.

N this case the Master in Equity had made a special report, dated 12th September, 1866, showing that the plaintiff had objected to the defendant's debtor and creditor account, because it did not set out certain facts which would have enabled the plaintiff to file a charge setting forth the defendant's liabilities which, he alleged, ought to have been paid in priority to those payments which had in fact been made by the defendant, so that upon such charge and the defendant's discharge, the question of the defendant's liability would be at once raised. The said report stated that the Master had over-ruled such objection, holding that the defendant had sufficiently complied with the terms of the decree (a).

Upon this report the Primary Judge, on the 14th September, 1866, made an order directing the defendant to bring in an amended debtor and creditor account, setting out the information desired by the plaintiff. The amended account having been filed, was objected to by the plaintiff, as not being in full compliance with the said order, but the objection was disallowed by the Master.

Blake, for the plaintiff, now moved that the Master in Equity might be directed to reject the amended account, as it did not comply with the order.

Gordon, for defendant, took a preliminary objection, viz., that there could be no appeal from the Master's decision until his report was made, and cited Rhodes v. Rhodes (b), and Chennell v. Martin (c).

The PRIMARY JUDGE sustained the objection, and refused the motion with costs.

(a) See report of this case, 3 S. C. R. Eq., 91. There was an appeal from the judgment of the Primary Judge, but it was dismissed with (c) 4 Sim. 340.

costs.

(b) 1 Ch. Appeal Cases, 483.

1867.

May 31.

In the Matter of the Will of WILLIAM GARDNER, late of Oban, in the Colony of New South Wales, Schoolmaster, deceased, and of the Trustee Relief and Security Act, 21 Vic., No. 7.

A testator, HIS
THIS

by his will, de-
clared as

follows:-"I do by this pre

sent instrument make arrangements for all my property heri

table or move

able in ready money, in manuscript writings, maps,

charts, or all that I may be

possessed of or

have claim to, either in Great

Britain or in

the colony of

New South Wales at the time of my death, I give, leave, and be queath to Mr. John Muir,

my relation, at

present
engaged in the
service of the

Union Bank of
Australia, in
Sydney. I
also appoint
M.. B. and H.

to be my
executors and
administrators

sion of all my

property,
stock, and
effects." Held,

HIS was a petition, presented by John Muir, for the payment out of Court to him of a sum of money, amounting to about £350, which had been paid into Court under the Act 21 Vic., No. 7, by John Barker, the sole acting trustee of the will of the abovenamed William Gardner.

The will, so far as material to the question raised on the present application, was as follows:—“I, William Gardner, being desirous of settling my wordly affairs do, by this present instrument written wholly by my own hand, make arrangement for all my property heritable or moveable in ready money, in manuscript writings, drawings, maps, charts, or all that I may be possessed of or have claim to, either in Great Britain or in the colony of New South Wales at the time of my death, I give, leave and bequeath to Mr. John Muir, my relation, at present engaged in the service of the Union Bank of Australia, in Sydney. I also appoint the Rev. John Morison, of Walcha, in the district of New England; John Barker, Esq., of Mount Mitchell; and Richard Hargrave, Esq., M.P., of Killgrove, New England, to be my executors and administrators to take possession of all my property, stock, and effects." The rest of the will and a codicil thereto contained directions as to debts and legacies.

The testator died in September, 1860, and his will to take posses- was proved by Messrs. Morison and Barker-Mr. Hargrave having renounced probate. Subsequently Mr. Morison left the colony, and Mr. Barker became that this was a the sole acting trustee. After payment of the debts quest to John and legacies of the testator there remained in Mr. Barker's hands the sum of about £350, which he paid into Court under the Act above referred to.

devise and be

Muir of all the testator's estate.

1867.

of the will of WILLIAM

GARDNER.

Daris, for the petitioner, submitted that under the true construction of the will of W. Gardner, the peti- In the matter tioner was entitled to the sum which had been paid into Court, and moved that it should be ordered to be paid out to him. The bequest was not clearly worded, but it was manifestly the testator's intention that the petitioner should succeed to all his real and personal property, and the Court would effectuate that intention by transposing, if necessary, the words "all my property, &c.," or "all that I may be possessed of, &c.," so as to consider them as following the name and designation of the devisee and legatee, or by interpolating equivalent words in that place, on the ground that such words had evidently been omitted by mistake; Hope v. Potter (a), Jarman on Wills (b), Doe d. Wolfe v. Allcock (c).

The PRIMARY JUDGE. It appears to me there is no necessity for transposing these words "all my property " or "all that I may be possessed of" as suggested, or for interpolating anything. The testator speaks in the first place of "all his property, &c.," and his desire of making testamentary arrangements with respect to it. Then follows what must be considered a bequest of all his property. The word "or" after the word "charts" divides the two sentences which both refer to the same subject, and, construed grammatically, the words following "or," viz., "all that I may be possessed of, &c.," should be referred to the next verb "give." I think there is a clear devise and bequest to John Muir, and make the order as prayed.

(a) 3 K. & J. 207. (b) p. 466 3rd ed. (c) 1 B. & A. 137.