would his opinion be entitled to much weight immediately after he came of age. He should be in a position in which he could render an independent judgment. I know that naturally a son may be affected by his father's judgment, and, in my humble opinion, it is a very excellent thing that it should be so. But when these matters come before the Court it has to exercise a duty apart from all sentiment, and say whether it is for the benefit of the infant that the action should be brought, that benefit being simply the pecuniary benefit.] While that is so, it is submitted that the Court will not countenance a dummy action brought by a stranger. [HOLROYD, J. Suppose that Mr. Charles Dunkley Wallace is actuated by his own interest only; but, at the same time, when I come to read the will, I see that the pecuniary interest of Mr. Charles Dunkley Wallace and of the infant plaintiff are absolutely the same, and I see, as I do by these affidavits, that the other two sons, who are of age, are also of the same opinion; and then, when I look at the charges themselves, I see that several are of great importance, and some are not denied. Can I then say that the action should not proceed? Ought not I to conclude that the action is for the pecuniary benefit of the plaintiff ?] The adult sons set up the infant to take the risk they were afraid themselves to take. [HOLROYD, J. Suppose they see the estate which belongs to them being wasted, and they see that if the clause in the will is a good one they imperil their own shares, and they find that they can without risk bring the action in the name of their infant brother, why should not they do so?] They really bring the action and thereby lose their interests. They are permitted to bring an action which the testator intended should not be brought. [HOLROYD, J. I can hardly imagine that the testator's meaning was that if an executor was putting the estate into his own pocket (and that is part of what is alleged), his beneficiaries should have no remedy-that that should be put up with. That that was his meaning is to me inconceivable.] There is nothing against public policy in it. It is easy to 1898 WALLACE v. WALLACE. Holroyd, J. allege grave matters and then say the action ought to go on. It is submitted that the evidence shows that the action is really brought by the next friend for the benefit of the two adult sons who are defendants, and that the next friend is not therefore a proper person to bring the action for the infant plaintiff, and that either the action should be now stayed until the plaintiff is 21 years of age, or else that there should be an inquiry as to whether the action is for the infant's benefit: Simpson on Infants (2nd ed.), 471, etc. [HOLROYD, J. The Court would have power to direct an inquiry whether the plaintiff's next friend was a substantial person, but what impresses me is that I see no reason at this stage of the proceedings to stop them. If you have made a case, I may direct an inquiry whether the next friend is a substantial person, but I will not now decide it. In all these cases is not the Court to look to the infant's benefit? If it thinks it is for the infant's benefit that the action shall be stayed while it is being ascertained whether the action is instituted for the infant's benefit or not, the Court will stay the proceedings, otherwise not.] When a party comes to this Court as next friend of an infant he must show that he really acts for the infant's benefit, and not for his own or those for whom he is a dummy: Sale v. Sale (a). The Court is not bound to accept anyone as next friend of an infant plaintiff. The natural next friend is the nearest relative, but he must not be a person who is interested with a defendant, a fortiori if he is really a defendant: Eversley on Domestic Relations, 895. Higgins and Weigall for the plaintiff-The motion is made too late. It ought to have been made as soon as the writ was issued, or, at all events, before taking an objection by the defence that the hospital was a necessary party, and so causing unnecessary expense to all parties. The affidavits show that great care was exercised before commencing the action. The plaintiff's solicitor in his affidavit says that he believes the charges made in the statement of claim are true. They are not (a) [1839] 1 Beav. 586. denied by the defendant John Alston Wallace. Before the Court will stay proceedings in a case of this kind it must be established that the next friend had some improper motive in bringing the action, and that it will not be for the benefit of the plaintiff. In the absence of any fact impeaching the solvency, conduct, or character of the next friend, though he be a stranger to the family, the Court should not refer it to the Master to inquire whether he is a proper person to be next friend : Smallwood v. Rulter (b); Nalder v. Hawkins (c). [HOLROYD, J. Are all the other defendants of the same opinion?] Mitchell and McDougall for the defendants William James Goldsmith and Wanliss for the defendant Teresa Ellen Schutt for all the other defendants, except the Melbourne Agg for the Melbourne Hospital, assented. HOLROYD, J. I think I ought to dismiss this motion, with costs. 1898 WALLACE v. WALLACE. Holroyd, J. ept. 2. The case now came on for hearing. Higgins and Weigall for the plaintiff The defendant John Alston Wallace committed the various breaches of trust alleged in the statement of claim. We do not suggest that he was dishonest, but we say that he was a masterful man, who thought that his children's interests were his own, would brook no interference by his children, would not give them what they were entitled to under the will, and who treated the property as his own, doled out small amounts only of the income of adult beneficiaries, and, when they claimed their rights under the will, threatened them with the forfeiture clause in the will. We (b) [1851] 9 Hare 24. (c) [1833] 2 My. & K., pp. 249, 250. 1898 WALLACE v. WALLACE. therefore say that he is not a fit person to remain as trustee of the will. We ask for a judgment declaring the various acts complained of in the statement of claim to have been breaches Madden, C.J. of trust, and directing the Chief Clerk to inquire the value of the assets of the estate, so as to ascertain the amount of the loss on each breach of trust, for an account on the footing of wilful default because he has not received rents and interest which he ought to have received, for ordinary administration accounts, and for an order that the will be proved in New South Wales. By this will the testator intended that his property should be held by (in the events which have happened) the defendant John Alston Wallace upon the trusts of his will. The property was not being held upon such trusts, and, it is submitted, any of the beneficiaries were entitled to come to this Court and say so. The action was brought advisedly in the infant's name, because it was thought that the infant was in a stronger position with regard to the forfeiture clause than the adult beneficiaries. It would be against public policy to allow such a clause as this to stand in the way of preventing a trustee squandering the trust estate or putting it in his own pocket. But, at all events, it is repugnant to the trust which the testator has fixed by his will, and therefore void, or was intended to apply only to frivolous and vexatious actions and nagging interference with the trustee in the exercise of his discretion in managing the estate: Rhodes v. The Muswell Hill Land Company (d); Adams v. Adams (e). Evidence for the plaintiff was then called. As part of the plaintiff's case his solicitor, Mr. Thomas C. Alston, was called, and besides giving evidence as to how he came to be employed, and as to the correspondence before action, stated that he had been consulted by the adult sons, and took counsel's opinion, which he produced; that he put such opinion before William James Wallace, Charles Dunkley Wallace, John Alston Wallace the younger, and the plaintiff Peter Brown Wallace, explained the position, counsel's advice, and the effect of the forfeiture clause; that they were unanimous in instructing (d) [1861] 29 Beav. 560; 30 L.J. Ch. 509. (e) [1890] 45 Ch. D. 426; affirmed on appeal [1892] 1 Ch. 369. him to go on with the action, and that the infant Peter Brown Wallace should, on the advice of counsel contained in the opinion, be made plaintiff. 1898 WALLACE V. WALLACE. After counsel had cross-examined this witness on behalf Madden, C.J. of the defendant John Alston Wallace, Mitchell, for the adult sons, proposed to cross-examine him. Topp objected that he was in the same interest as the plaintiff, and therefore not entitled to cross-examine the witness, especially after he had done so. Higgins-It was decided in Meadway v. Garlick (ƒ) that a co-defendant has a right to cross-examine. MADDEN, C.J. Yes, by Mr. Justice Molesworth, and afterwards in some later case. As at present advised I think it is allowable, but if there is anything upon which you would like to re-cross-examine the witness, Mr. Topp, I will give you an opportunity. After Mitchell's cross-examination concluded, counsel for the Melbourne Hospital proposed to cross-examine the witness on certain paragraphs in his affidavit on the motion of the defendant John Alston Wallace to stay the proceedings or refer it to the Chief Clerk to inquire whether it was for the plaintiff's benefit that the action should continue, in order to show that the action was really brought by the defendants Charles Dunkley Wallace and John Alston Wallace the younger Higgins objected. Agg-It shows that the real plaintiffs in this action are Charles Dunkley Wallace and John Alston Wallace the younger. If that is so, I submit that the defendant the Melbourne Hospital is entitled to a declaration that they have forfeited their interests under the will in its favour, provided the forfeiture clause is not against public policy or repugnant and does apply. It is neces (ƒ) [1867] 4 W. W. & A'B. (Eq.) 157. |