CH. XXXI. § 3. nor on lapsed legacy: nor revoked legacy; whether the bequest is specific or pecuniary. Where an intestacy as to part arises from testator's intention being defeated, the part undisposed of is liable to no more costs than if gift had taken effect. intended to be given, but which had been held to be undisposed of, were to contribute pro ratâ. 1 So, where a legacy given by a will has lapsed by the death of the legatee in the lifetime of the testator, the costs will be paid out of the general fund, and not out of the lapsed legacy; and the same rule applies, where the intestacy, as to part, does not arise from lapse, but from revocation of a bequest: as in Cresswell v. Cheslyn, as explained in the note to Skrymsher v. Northcote;* and in the latter case itself, in which the question was argued, that the costs of the suit ought to be paid out of the part undisposed of, and not out of the general estate, Sir Thomas Plumer M. R. decided that the costs should be apportioned.* It makes no difference whether the property undisposed of (whether from lapse or from any other cause) was given as a specific or pecuniary bequest, or as a share of the residue: in either case, the costs of the suit will not fall on the undisposed of share, but on all the shares. Thus, in Ackroyd v. Smithson," the costs were paid pro ratâ out of the shares of the residue which the legatees took, and those shares which had lapsed; and, in cases where part of the property given to a charity becomes undisposed of, from being within the Mortmain Act, it has been long settled that the costs are paid pro ratâ out of the property so undisposed of, and the property well bequeathed to the charity." The cases above referred to, establish the principle that, where an intestacy as to part of the personal estate arises from the intention of the testator being defeated by the happening of some event, or by the operation of the law, the part thus falling to the next of kin, is, in his hands, subject to the same liability as to costs, and no more, that it would have been subject to, if the gift had taken effect; and the principle has been extended to cases where accumulations directed by a will have been declared absolutely null and void, under the Thellusson Act (39 & 40 Geo. III. c. 98). Thus, in Eyre v. Marsden, where Lord Langdale M. R., having declared that a direction for the accumulation of the produce of the testator's freehold and personal estate was void under 1 Roberts v. Walker, 1 R. & M. 752, 767. 2 2 Eden, 123. 8 1 Swanst. 571, n. (d). 4 See Eyre v. Marsden, 4 M. & C. 231, 245. 5 1 Bro. C. C. 503. The printed report, however, is silent as to costs, but the direction as to costs is shown by the Registrar's book: see 4 M. & C. 245; see also Maddison v. Pye, 32 Beav. 658. 6 Per Lord Cottenham, in Eyre v. Marsden, ubi sup.; and see AttorneyGeneral v. Lord Winchelsea, 3 Bro. C. C. 8 373, 380; Attorney-General v. Hurst, 2 Cox, 364, 366; Howse v. Chapman, 4 Ves. 542, 550; Taylor v. Bogg, 5 Jur. N. S. 137, V. C. S. 74 M. & C. 231; and see Elborne v. Goode, 14 Sim. 165, 179; 8 Jur. 1001; Barrett v. Buck, 12 Jur. 771, V. C. W.; Holgate v. Haworth, 17 Beav. 259; Oddie v. Brown, 4 De G. & J. 179, 198; 5 Jur. N. S. 635, 637; Green v. Gascoyne, 11 Jur. N. S. 145; 13 W. R. 371, L. C.; Combe v. Hughes, 2 De G., J. & S. 657, 662, 664. 8 2 Keen, 564, 578, 580. the above Act, and that such parts of the accumulation as arose from the real estate belonged to the heir, directed the costs of the suit to be paid pro ratâ by the heir and personal representatives, out of the accumulations devolving upon them: Lord Cottenham, upon appeal, varied the decree, by directing the costs to be paid out of the general estate of the testator.1 may CH. XXXI. § 3. General esble to costs occasioned by litigation between parties interested in tate not lia severed fund. Course of where it is uncertain who is en titled to a legacy. has been a But although the rule is, that the costs of a litigation, in the course of administering a will, are given out of the general assets, in preference to the particular fund, yet, if the particular fund has been severed from the residue, and the question is merely between the persons claiming to be entitled to it, the costs must come out of the particular fund. Thus, it is the ordinary course of the Court, where there is some legacy clearly payable, but it is uncertain who is entitled to it, to order the legacy to be paid into Court proceeding. to a separate account, with liberty for any person interested in it. to apply, and to proceed to a distribution of the residue of the testator's estate: in such case, any costs which afterwards be incurred, in inquiring who is entitled to such legacy, must come out of the particular fund: for the Court will never postpone the distribution of the residue, to answer the costs of such inquiry. Where the question was, whether certain legacies were specific or not, and inquiries had been directed as to the appointment of a guardian and maintenance for a specific legatee, who was an infant, the costs of the suit, except as to the inquiries with respect to the guardian and maintenance, were ordered to be paid out of the general assets, and the costs as to the guardian and maintenance were directed to be paid by sale of a sufficient part of the specific legacy. So, also, the costs of the Bank of England, made a party for the security of a legacy, the right to which was under discussion, were paid out of the legacy; and if the plaintiffs, in suit relating to the construction of a will, unnecessarily mix up other questions with the questions arising under the will of the testator, the costs of such part of the suit only as relate to the construction of the will, will be paid out of the general assets. Thus, where a doubt arose under a will, whether a legacy given by the testator was undisposed of, and a suit was instituted by the residuary legatees of one of the next of kin of the testator, instead of 1 4 M. & C. 248. 2 Jenour v. Jenour, 10 Ves. 562, 573; see also Shaw v. Pickthall, Dan. 92; Duke of Manchester v. Bonham, 3 Ves. 61, 64; King v. Taylor, 5 Ves. 806, 810; Wilson v. Squire, 13 Sim. 212; Dugdale v. Dugdale, 12 Beav. 247, 251; Governesses' Institution v. Rusbridger, 18 Beav. 467; Richardson v. Rusbridger, 20 Beav. 136; Attorney-General v. Lawes, 8 Hare, 32, 43; see also Pennington v. Buckley, 6 Hare, 451, 455. Costs of taking out a administration to a share were allowed, 3 Barton v. Cooke, 5 Ves. 461, 464. Where there reference as to guardian tenance for and main an infant. Where Bank made party, of England for the security of the particular legacy. Where other questions are unnecessarily mixed up with ques tions under will. CH. XXXI. § 3. Where party entitled to legacy, or share of resi due, incumbers it, any additional costs will be payable out of legacy; and so as to his personal representative, in the course of which questions arose between them, the costs of so much only of the suit as related to the decision upon the will were ordered to be paid out of the general assets of the original testator.1 It may be remarked that, where a party entitled, either to a legacy or share of a residue, incumbers his legacy or share, or by any act of his own occasions additional expense in respect of it, beyond what is necessary for the due administration of the estate, the additional expense will be thrown upon the particular fund or portion; and only one set of costs will be allowed out of the estate to the party entitled and his incumbrancers, and such costs will in general be made payable to the first incumbrancer.2 3 A similar rule will be applied, in the case of a bankrupt legatee bankrupt and and his assignees; of a trustee and his cestui que trust;* and of a husband and wife, living apart, and improperly severing in their defence.5 assignees; trustee, and cestui que trust; or husband and wife severing. Apportionment of costs between different funds: In what cases. Where different funds are the subject of distribution or discussion, in the same suit, the costs of the suit are generally apporratâ between the different funds." tioned pro In Leacroft v. Maynard, where the testator charged his legacies upon his real estate, and then bequeathed a legacy to a charity, the amount of which he altered by his codicil, whereupon a bill was filed for the general administration of the testator's estate, and another bill was also unnecessarily filed by the heir-at-law to have the legacy bequeathed to the charity declared void under the Statute of Mortmain, and to have the real estate conveyed to him. Between real discharged of it: the Court directed that the costs of the suits, so far as they related to the personal estate, should come out of the personal estate, and that the costs which related to the real estate should be borne by the real estate; so that the costs of the bill filed by the heir should fall upon the real estate. So, also, the costs have been apportioned between the appointed and unappointed parts of a fund, according to the different values of the appointed parts; and between several charities, where one scheme was settled for them all.10 So, also, where there were no debts or and personal estate. Between appointed and unappointed funds. Between sev eral charities. 1 Skrymsher v. Northcote, 1 Swanst. 566, 572. 2 Greedy v. Lavender, 11 Beav. 417, 420; Seton, 162, No. 12, 167, where form of order is given; Remnant v. Hood (No. 2), 27 Beav. 613; Ward v. Yates, 1 Dr. & Sm. 80; and see Bassevi v. Serra, 3 Mer. 674, 676; 14 Ves. 313, 317; see also Mocatta v. Lousada, cited 3 Mer. 676; 14 Ves. 317. 8 Brace . Ormond, 2 J. & W. 435; Garey v. Whittingham, 5 Beav. 268, 270; 6 Jur. 545. 4 Remnant v. Hood, ubi sup. ; Farr v. Sheriffe, 4 Hare, 528; 10 Jur. 630. 5 Garey v. Whittingham, ubi sup. 6 Heighington v. Grant, 1 Beav. 228, 231; Johnston v. Todd, 8 Beav. 489, 492; Hopkinson v. Ellis, 10 Beav. 169, 176; Sanders v. Miller, 25 Beav. 154; Elborne v. Goode, 14 Sim. 165, 179; 8 Jur. 1001; Christian v. Foster, 2 Phil. 161, 166; and see Attorney-General v. Lawes, 8 Hare, 32. 71 Ves. J. 279; 3 Bro. C. C. 238. 8 Trollope v. Routledge, 1 De G. & S. 662, 671. 9 Warren v. Postlethwaite, 2 Coll. 116, 123. 10 Re Stafford Charities, 26 Beav. 567. CH. XXXI. § 3. personal estate, the costs were thrown ratably on devised and descended realty. Similar decrees, for an apportionment of costs between real and personal estates, appear to have been made in Between deJones v. Mitchell, and Dixon v. Dawson.3 vised and descended realty. Where suit for adminis testator's estate, and Where the suit was for the administration of the estate of a testator, but it also involved the execution of the trusts of a settlement, the costs occasioned by that portion of the suit relating tration of to the settlement were directed to be borne by the settlement fund; and in King v. Taylor, where the question was whether a execution of legacy of stock and a share of the residue under a will went to the husband of a married woman who was dead, or to her brother, and the Court decided that the legacy went to the husband, and the share of the residue to the brother, the costs were ordered to be borne by each fund in moieties. trusts of a settlement. Between legacy and residue. In suits to rectify settle In suits to rectify settlements, in which no blame is imputable to either side, the costs will, in general, be made payable out of the ments. settled property." It may be mentioned, in this place, that where a cestui que trust, having a life-interest only, is declared entitled to his costs out of the trust estate, the Court will not content itself with merely giving him a lien upon the corpus of the estate by the decree, leaving him to enforce it by subsequent proceedings, but it will direct an immediate sale of a sufficient part of the estate to raise the costs; and it appears that the omission of such a provision in the decree may be the subject of a rehearing. A life-interest will not be valued, for the purpose of charging costs upon it. pur Where cestui que trust for titled to estate, immediate sale directed. life is en costs out of will be Payment of costs out of to ultimate In the case of costs, the Court will take any fund which, in the absence of all others, is liable to costs, and apply it for that pose. If the fund is not ultimately to bear the costs, it is usual out prejudice and more proper to add to the order the words," without prejudice liability. to the question how the same are ultimately to be borne," or words to a similar effect; but the absence of such words does not, necessarily, imply that the Court has decided that the fund out of which the costs are directed to be paid is the fund which must ultimately bear them; nor does their absence prevent any error from being set right, at any future period. 1 Bagot v. Legge, 2 Dr. & Sm. 259; 10 Jur. N. S. 1092. 21 S. & S. 290, 295. 3 2 S. & S. 327, 340; see also 1 Bro. C. C., ed. Belt, 265, n. (3); Walter v. Maunde, 19 Ves. 424, 429; Bunnett v. Foster, 7 Beav. 540, 544; Johnston v. Todd, 8 Beav. 489, 492; Hopkinson v. Ellis, 10 Beav. 169, 176; Sanders v. Miller, 25 Beav. 154; and see Seton, 247. Irby v. Irby, 24 Beav. 525. 55 Ves. 806, 810. 6 Stock v. Vining, 25 Beav. 235. 7 Burkett v. Spray, 1 R. & M. 113, 115; Mandeno v. Mandeno, Kay Ap. 2, 4. It seems, however, that, in such a case, the party entitled to the costs, instead of appealing, may apply by motion to have them raised by sale. See Cannell v. Beeby, Beames on Costs, Ap. No. 7. 8 Coombe v. Hughes, 13 W. R. 700, L. JJ.; S. C. nom. Combe v. Hughes, 2 De G., J. & S. 657, 664. Sheppard v. Sheppard, 33 Beav. 129, 130, 131; Seton, 87, 93. CH. XXXI. $ 4. Different principles of taxation: As between party and party. As between solicitor and client. Distinction, where the costs are to be paid out of a general fund, or out of the fund of the party. SECTION IV.-The Principles of Taxation.1 It has been stated, that the Court of Chancery makes a distinction, with regard to the principle upon which the officer of the Court is to proceed in the taxation of costs; and that this distinction is marked by the terms of: "costs as between party and party," and "costs as between solicitor and client:" the Court in the latter case, permitting a larger proportion of actual expenditure to parties holding particular characters, than it allows in the former case. No definite rules can be laid down, with respect to the difference between the costs allowed upon one principle of taxation, and those allowed upon the other. In general, however, in taxations as between party and party, only those charges will be allowed which are strictly necessary for the purposes of the prosecution of the litigation, or are contained in the tables of fees annexed to the general orders and regulations of the Court: while in taxations as between solicitor and client, the party will be allowed as many of the charges which he would have been compelled to pay his own solicitor, as being costs of suit, as fair justice to the other party will permit.* It must not, however, be supposed that, in taxations, between solicitor and client, the party, whose costs are to be taxed, will be allowed every thing which his own solicitor might claim against him upon the taxation of his bill: for regard will be had to the position of the parties, and the fund out of which the costs are to be paid; and a distinction is made: First, where such costs are payable out of a fund belonging to other parties; secondly, where such costs are payable out of a common fund, in which the party entitled to costs has only a limited interest; and, thirdly, where such costs are payable out of a fund belonging exclusively to such party himself. These distinctions, however, are not made in the order directing the taxation, but only when the order is acted upon 1 See Smith Ch. Pr. (2d Am. ed.) 636 3 For tables of fees, see Vol. III. 4 See Forster v. Davies, 11 W. R. 813, It has been the practice of the Court to charges for counsel fees as well as those which are strictly fees of solicitors, but not to allow the full amount which it may sometimes be proper for counsel to charge to clients. . . The standard to which we have been accustomed to refer as a general guide is the compensation paid to public officers for services of a similar character. This reference cannot furnish an exact rule, and leaves room for the exercise of discretion as to each case, a discretion which shall take into consideration, among other things, the amount in controversy, and which will prevent the fund from being entirely or in great part absorbed by counsel fees." 5 Seton, 92, 93. |