him; and due notice of attending the Master was directed to be given to all parties interested (k). The Master, under the last reference, having found that the party was a lunatic trustee within the act, and that he had no beneficial interest in the property, and that the deed contained a power for the appointment of new trustees, under which new ones had been duly appointed, it was ordered that the person named by the Master should join with the other trustees in conveying the trust property in the place of the lunatic, so that the same might become vested jointly in one of the former trustees and the two new trustees, upon the trusts of the deed (7).

Where the Master had found that stock was standing in the names of two deceased trustees and a lunatic, upon the trusts of a settlement, and that there were no incumbrances affecting the same, and that the trustees had not any beneficial interest therein-On the petition of the persons proposed as new trustees, and of the parties beneficially interested in the fund, it was referred to the Master to inquire and certify whether there was any power in the settlement to appoint new trustees of the trust funds mentioned in the petition, and by whom, and by whose direction such power (if any) was to be exercised, and, if there was no such power, then the Master was to inquire and certify whether two particular persons were proper to be appointed new trustees in the place of the lunatic, or what persons it would be proper to appoint as such new trustees. The Master, by his report having found that there was no such power, and that he was of opinion that the two persons proposed were fit to be appointed new trustees, the Lord Chancellor ordered the Master's report to be confirmed, and appointed such two persons to be new trustees, in the place of the two deceased trustees and the lunatic, and ordered the committee of his estate to transfer the funds standing in the books of the Bank of England in the names of the deceased trustees and the lunatic, into the names of the new trustees, to be by them held upon the subsisting trusts of the settle(k) In re Piggott, 2nd July, 1831.

(1) S. C. 30th August, 1831.

ment; and the committees were ordered to receive the dividends due up to the time of the transfer, with liberty for them to retain thereout their costs of the applications to the Court and the transfer, such costs to be taxed by the Master in case the parties differed about the same; and the residue of such dividends was to be paid to the new trustees, to be by them applied according to the settlement (m).

6. Questions have been frequently raised, as to the payment of the costs incurred by proceedings under the statutes for obtaining conveyances from lunatic trustees and mortgagees; and the decisions reported upon that subject are not uniform. Thus, where a lunatic had been reported to be a trustee within the 4 Geo. 2, c. 10, and the Court thereupon ordered his committee to convey, and the case stood over for the purpose of determining whether the committee should have his costs, the Lord Chancellor determined, that the rule was, that the estate of the cestui que trust should not bear the expense, but that it must be paid out of the lunatic's estate (n). It appears, however, that, at the hearing of that case, no question as to costs was made, and that a direction to that effect was added for the indemnity of the committee, who had omitted to obtain his costs from the cestui que trust (0).

Notwithstanding the case last cited, the general rule seems to be, that the costs of the committee of a lunatic trustee conveying under the statute are to be paid by the cestui que trust. Thus, in a case where a lunatic had been reported to be a trustee within the statute for the grantee of an annuity, and a question arose as to the committee's costs, Lord Chancellor Eldon, after having been furnished with a statement of the practice on this subject, finally ordered, that the committee's costs of the original petition and subsequent proceedings should be paid by the grantee of the annuity and the assignees of the grantor in equal moieties; and declared the general rule to

(m) In re Stracey, 4 February, 290. See Ex parte Cant, 10 Ves.

1831.

(n) Ex parte Brydges, Coop. R.

554.

(0) See 1 Turn. R. 327.

be, that the costs of the committee of a lunatic trustee conveying under the statute must be paid by the cestui que trust (p). But, where a trustee refused to execute a conveyance, which had been settled and approved by the Master, in consequence of which a further petition was presented, to direct him to execute the deed in question; as no sufficient reason appeared why he had not before done so, the Court would not allow him the costs occasioned by such petition (g). So also, where an estate had been conveyed to trustees for the benefit of creditors, and an application was made for a commission of lunacy against one of such trustees, who, after having contracted for the sale of an estate, became of unsound mind and incapable of completing the sale; it was held, that the petitioners must take the order at their own expense, and, if the commission issued, must pay the expenses of it, being for their benefit up to the time of perfecting the title to the estate in question: and the consideration as to their reimbursement, if any other person should adopt the commission, was reserved (r).

But the costs incurred by the reference and the necessary orders for enabling the committee of a lunatic, who is beneficially entitled as mortgagee, to convey to the mortgagor (s), must be paid out of the lunatic's estate, whether the application be made by the mortgagor, or by the committee which is the usual course. Thus, on a petition by a mortgagor, the mortgagee having become a lunatic, for an order under the statute 4 Geo. 2, c. 10, a question arose whether the costs of the petition and reference should be defrayed by the mortgagor or out of the lunatic's estate. The matter having stood over, that the practice might be inquired into, Lord Chancellor Eldon said, that the only dif ficulty arose from the form of the petition; and that he found, where there is a mortgage and the mortgagee had become a lunatic, the usual course was for the mortgagor to state that

(p) Ex parte Pearse, 1 Turn. R. 149.

325.

(q) In re Frank, 24 July, 1829.
(r) Ex parte Tutin, 3 Ves. & Bea.

(s) See Wetherell v. Collins, 3 Madd. 255; Martin's case, 5 Bing. 160.

he is willing to pay the money due on the mortgage to the committee, who then presents the petition for the reference; after he has put himself in a situation to be able to convey, the subsequent costs are defrayed by the mortgagor; but all the costs antecedent to the committee's having that capacity, were paid out of the lunatic's estate. In this case, the mortgagor presented the petition, which was the same thing, being one step towards giving the committee the capacity to convey, and the expense of it must fall on the lunatic's estate (t). It was true, that, in an action, the mortgagor might be made to pay the whole sum without any deduction, but that the Court approved of an application of this sort on the part of the committee, instead of an action, which he would not be allowed to bring, if the mortgagor was ready to pay (u). A mortgagee, by improper and vexatious conduct, will, in some cases (as, a tender of the mortgage money and interest, and a refusal to receive it), not only be deprived of his own costs, but compelled to pay those of the mortgagor (v).

But, where the lunatic is a bare trustee, and has no beneficial interest in the money due on mortgage, the costs of the necessary applications and orders for obtaining a conveyance from his committee, must be paid by the persons beneficially interested, or by the mortgagor. Thus, where the Master, in a reference under 6 Geo. 4, c. 74, on the petition of the persons entitled to the equity of redemption of a real estate, had found by his report that a lunatic was a mortgagee of such estate as a trustee, and that he was seised thereof as a trustee for the purchaser of it-An order was made, that, upon payment of the principal and interest to the committee of the estate, such committee should convey the premises to such purchaser; and it was referred to the Master to tax the costs of the petitioners and of the

(u) Ibid.

(t) Ex parte Richards, 1 Jac. & 583; Loftus v. Smith, 2 Sch. & Lef. Walk. 264. 657; -v. Trecothick, 2 Ves. & Bea. 181; Quarrel v. Beckford, 1 Madd. R. 269, 285; 1 Ball & B. 121, n.

(v) Harvey v. Tebbutt, 1 Jac. & Walk. 197; Detillin v. Gale, 7 Ves.

committee of the estate of the lunatic, incurred by the petition for the order of reference, and the application to confirm the Master's report and the order to convey; and such costs were directed to be retained by the committee out of the principal money and interest to be received in respect of the mortgage (w). And where a petition was presented by a party entitled to the equity of redemption of a bond and heritable subjects in Scotland, which had been mortgaged to the lunatic's father, who, by his will, bequeathed the principal money to the petitioner, praying a confirmation of the Master's report, finding the lunatic a trustee within the 6 Geo. 4, c. 74, and that the committee of the lunatic might be ordered to execute a release of the mortgage to the petitioner accordingly, and that the costs of the petition, report, and application might be taxed and paid out of the personal estate of the testator, or out of the lunatic's estate -Lord Chancellor Lyndhurst decided, that the lunatic ought not to bear any expense, as he took no beneficial interest, and was a mere naked trustee. His Lordship said, he never heard of a trustee being required to pay any expense for the transfer of property to another trustee; and considered, that, whatever expenses might have been incurred for that purpose, must be paid by the parties requiring the transfer; and he refused to make the order for payment of the costs out of the lunatic's estate (x).

And in another case, where, on the death of a mortgagee in fee, the legal estate in certain premises descended to his heir-at-law, but the mortgage debt went to the executors of the mortgagee; the heir-at-law was of unsound mind, but no commission of lunacy had issued against him-The mortgagor presented a petition under 6 Geo. 4, c. 74; and the Master, under the usual reference, found that the heirat-law was of unsound mind, and that he was seised of the mortgaged premises upon trust for the executors of the mortgagee, until the mortgage money and interest were paid, and, after payment thereof, in trust for the mortgagor, his (w) In re Tarbuck, 17th July, (x) In re Davidson, 11th Aug.