1847. April 17th. ter finds by his report that there is no settlement of a HEDGES V. CLARKE. Where the Mas. THE Master, by his report, found that certain married ladies, parties to the suit with their husbands, as plaintiffs, were entitled each to one-fifth of a sum of money not exfund in Court ceeding £200 each, out of trust-funds in the cause, and that there was no settlement of any of the sums to which to which a mar ried woman is entitled, it is the general rule, the ladies were entitled. that application should be made for payment to the husband by petition presented after the decree on fur ther directions has been made, in order that tions there was of the fund in Court; yet when the sum is small (under £200), and all parties to the suit consent, The cause now came on to be heard on further directions. Mr. Spurrier, for the plaintiffs, asked that a direction might be inserted in the decree for payment of these sums to the husbands, without putting the parties to the expense of a petition. The VICE-CHANCELLOR, after consulting the Registrar, (who stated the rule of practice to be, that payment of money found due to the wife can be obtained by the husband no settlement only upon petition presented after the decree made finally, entitling the married lady, and that the reason was, that the Court required to be judicially satisfied that there had been no settlement up to the date of the decree, and that a petition was necessary to admit proof of that fact by the Court will affidavit), said, that, although this was the general rule, yet, upon the consent of all parties, and where the sums were so small, the rule might properly be relaxed, and the order not put the parties to the expense of a petition, but insert an order for payment to the husband in the decree on further directions. for payment to the husband be inserted in the decree on further directions; which was accordingly done. ARROW v. MELLISH. JOHN MOORE made his will, dated November 6, 1800, containing the following bequest :-"To her my said wife, I give and bequeath the use and usage of all my worldly goods, money, and other effects which I may die possessed of, to have and to hold during her natural life, and at her death I give and bequeath the same to my three nieces, viz., Elizabeth, Catherine, and Sarah, daughters of my brother William Moore, and also to Mary Arrow, daughter of John Roxbee, niece to my said wife, Mary Moore, to be by them equally divided, share and share alike, and at their deaths to go equally, share and share alike, to their children." Neither of the testator's nieces had any child, except Catherine, who had one child only, and this child died an infant in the lifetime of the testator. Mary Arrow had two children, who survived the testator, but had died several years ago. One of the defendants, named William Crick, had taken out letters of administration to them, and the question was, whether, as their administrator, he was entitled to the three shares of the testator's nieces who died without leaving any child, or whether, in the events which had happened, there was an intestacy as to these shares, which were claimed on that ground by the plaintiff as representing the testator's next of kin. Mr. Bagshawe and Mr. Malins, for the plaintiff, cited Taniere v. Pearkes (a), Flinn v. Jenkins (b), and an unreported case of Willes v. Douglas, before the Master of the Rolls, in which a testatrix had bequeathed the remainder of her funded property at the decease of her sister, Jane Somerville, to Francis Willes and Francis Charles Johnson, in trust, to be equally divided between her first cousins, Mary (b) 1 Coll. 365. (a) 2 Sim. & St. 383. 1847. ARROW v. MELLISH. Johnson, the wife of Charles Johnson, Charlotte Lovell, the wife of Peter Harvey Lovell, and Margaret Lucy Atty, the wife of Robert Middleton Atty; and directed that the interest arising therefrom should be received by plaintiffs, and equally divided, share and share alike, between the said Mary Johnson, Charlotte Lovell, and Margaret Lucy Atty, separate and distinct from their said husbands, and for their sole use, and at their decease to be divided amongst their daughters. One of them had a daughter, and the Master of the Rolls decided that that daughter took an immediate interest in one-third of the corpus. Mr. Southgate, for the defendant Crick, cited Malcolm v. Martin (a), Pearce v. Edmeades (b), Smith v. Streatfield (c), and Armstrong v. Eldridge (d). Mr. Chandless appeared for the trustees. The VICE-CHANCELLOR: In this case the words "their children" must mean "their respective children." I have not a doubt in my own mind of the intention of the testator. The only question seems to be, whether I am bound by the decisions in Malcolm v. Martin, Pearce v. Edmeades, and Smith v. Streatfield, to decide in favour of Mr. Crick's view of the will. I think that not one of thoses cases compels me to do so, and I therefore decline doing so. I think the plaintiff right. WROUGHTON v. COLQUHOUN. THIS case, which is reported ante, p. 36, now came on again upon further directions. The suit was instituted by the residuary legatee for the general administration of the estate. It appeared that the assets were insufficient for the payment in full of the pecuniary legacies and annuity; and the first question discussed was as to the payment of the costs of the plaintiff. Mr. C. P. Cooper and Mr. Briggs, for the plaintiff.The plaintiff is entitled to have his costs out of the estate, to be taxed as between solicitor and client, in analogy to the rule which has been adopted in the case of an administration bill filed by a simple contract creditor, where the assets are only sufficient to pay the specialty debts: Tootal v. Spicer (a). The reason on which that rule is founded, viz. that the plaintiff's proceeding has benefited other parties exclusively, and that he ought not to be a loser by it, applies equally in this case, where the plaintiff, as it turns out, will receive nothing; and your Honor has in fact already so decided in Burkitt v. Ransom (b). however, the Court thought that it could not direct general costs of the plaintiff to be paid as between solicitor and client, at all events the plaintiff ought to be allowed the expense of attending by counsel in the Master's office. It is within the terms of the 120th Order of May, 1845, which enables the Taxing Master, in taxing costs as If, the tee, the assets proved insuffi cient for the payment of the expenses and the general legacies:-Held, that the plaintiff was not entitled to his costs as between solicitor and client, except so far as the general estate had been increased by the proceeding. The costs incurred by a legatee, who has instituted an administration suit, in attending before the Master by counsel in support of his state of facts-Held not to be within the 120th Order of May, 1845, as incurred upon a question relating to title. (a) 4 Sim. 510; and see Brodie v. Bolton, 3 Myl. & K. 168; and Larkins v. Paxton, 2 Id. 32. 1847. WROUGHTON v. COLQUHOUN. between party and party, to allow the expenses of counsel's attendance in the Master's office upon questions relating to title. It would be very extraordinary if the expense of having the state of facts settled by counsel were allowed, and yet the counsel were not allowed to go before the Master to support the state of facts which he had settled. Mr. Russell, Mr. Wigram, Mr. Kenyon Parker, Mr. Lloyd, Mr. Stevens, Mr. Toller, and Mr. Chichester, appeared for the defendants. The VICE-CHANCELLOR : I cannot venture to decide that the discussion before the Master in this case involved any matter of title within the meaning of the 120th Order. In the sense which it has been contended should be given to that expression, almost every question that came before a court of equity would be a question of title. It would be too bold and wide a construction to put upon the Order. I think the costs must be taxed as between party and party only, except so far as they have been augmented by any proceedings taken with a view to increase the testator's estate. If a distinct authority had been produced, I should have been glad to follow it, and to decide the case on the principle adopted as between simple contract and specialty creditors, in the case cited. But unless some distinct authority existed, I should be creating a new practice, and not following the old, in giving costs as between solicitor and client; that, if it is to be done, had better be done elsewhere. In the case before me, which has been referred to, I must have proceeded on the absence of opposition. In the absence of opposition I must have thought it, as I should still think it in the abstract, reasonable to accede to the plaintiff's application. But as it is here opposed, I think it the more reasonable and proper, and the bet |