1899

ZANONI

v.

ZANONI.

Williams, J.

fix the sum, and then that sum is to be paid into Court. It seems to me that the
Court should not order that sum to be paid in until the Taxing Master has fixed
the amount, and that it ought not to be ordered at this stage At any rate, the
Legislature does not seem to have contemplated that the Court should now
order the husband to pay in a sum which the taxing officer shall think proper to
fix, but that, in the first instance, the Taxing Master should fix the amount, and
then it is the duty of the husband to pay into Court. If he does not, then I
think it would be proper that the Court should make an order. I think if the
authorities were examined, none of them would be found to be inconsistent with
this view. There is a jurisdiction in the Court to direct the sum to be paid,
because the statute says it is to be paid, and I think the Court could say
"What
the statute orders you to pay you must pay, and we direct you to pay," and then
there could be an application for attachment in case the husband did not pay. I
think the order can be made, but it is a question at what time it should be made.
The time for making the order in this case has not arrived, and therefore I make
no order.

Then the next question which I reserved was, whether the gentleman who appeared to argue this summons for the wife was entitled to a certificate for counsel. It appeared that the counsel who argued the summons on behalf of the wife was instructed by his partner, and that being the case he asked for a certificate for counsel. I had some doubt as to whether I should make the order, seeing the complications that might arise if this sort of thing were done systematically, and seeing that, where one solicitor instructed his partner, it would be possible for the one to carry the whole matter through, using his partner's name as the attorney on the record, and doing the whole of the work himself. But while it is open to that abuse, the Legislature seems to contemplate the instructing of a solicitor as counsel by his partner. Sec. 6 of the Legal Professions Act 1891 seems undoubtedly to contemplate that, because it not only contemplates such a case, but also what may be the consequences in such a case It provides "No barrister or solicitor shall be entitled to any costs whether as between party and party or between solicitor and client for instructions to or attendances upon counsel he or his partner or partners being such counsel or for attendances at Court on trial or in chambers as solicitor where he or his partner or partners shall be also acting and receiving a fee as counsel for the like attendance and for the same client." That is a clear intimation by the Legislature that, although the barrister and solicitor is to get his fee as counsel, yet there is not to be charged against the client or the opposite party a fee for attendance on himself or for attendance by his partner. The Legislature thus contemplates an attorney being instructed by his partner, and points out the consequences in such a case. Although that matter may be and is liable to abuse, it is for the Legislature to set aside such a practice, and not for the Court to attempt to set it aside, and thus to defeat the intention of the Legislature. I shall therefore in this case give the certificate for counsel, and fix the costs at 31. 38.

Solicitor for the husband: D. Gaunson.

Solicitor for the wife: A. H. McKean,

R. H. C.

[PROBATE JURISDICTION.]

IN THE WILL OF MARY BUCKLEY.

Practice probate-Order nisi-Evidence-Affidavit-Administration and Probate
Act 1890 (No. 1060, sec. 22).

Where on the return of an order nisi for probate the caveator does not appear the order may be made absolute, subject to an affidavit of service, without viva voce evidence being given.

ORDER nisi for probate.

William Primrose Anderson, the executor of the will of Mary Buckley deceased, applied to the Registrar of Probates that probate of the will should be granted to him. The estate was valued at 100l. realty and 15l. personalty. Margaret Buckley, a daughter of the testatrix, on 13th September 1898 filed a caveat against the grant. The order became returnable on the 13th April, and was then put into the list of causes for hearing. The case was now called on. The caveatrix appeared on the return of the order nisi.

Cussen for the executor.

No appearance for the caveatrix.

Cussen-I ask the Court to make the order for probate absolute. The Court may act upon the affidavits filed, and without further evidence grant probate: Administration and Probate Act 1890, sec. 22. The general rules do not affect the procedure under the section: Sec. 14.

[HODGES, J. Has an affidavit of service been filed ?]

No. The order for probate may be made to run thus:"Upon reading these affidavits, leave being given to use the same, and no application having been made to cross-examine the deponents, the order nisi was made absolute."

HODGES, J. It is a small estate, and I am anxious to save costs. I think the Administration and Probate Act, sec. 22, entitles me to make the order absolute in this case, and to grant V.L.R., Vol. XXIV.

KKK

1899 May 17.

Hodges, J.

1899

probate, subject to the filing of an affidavit of service.

The

IN THE WILL Order will be absolute, with costs.

OF

BUCKLEY.

Hodges, J.

Order absolute for probate.

Solicitors for executor: Crisp, Cameron & Rennick (for Lyne & Silvester, Portland).

R. H. C.

1899

April 26.

Holroyd, J.

[IN CHAMBERS.]

IN RE JOHN FERDINAND PFEIL; IN RE CRISP, LEWIS AND

HEDDERWICK,

Will-Executor-Solicitor-Trusts and powers-Charges.

By his will a testator declared that one of his executors, a solicitor, should, in addition to a commission, be allowed, not only his usual professional charges, but also a proper remuneration for all business done, and all attendances, time, and trouble in and about the execution of the trusts and powers of his will, whether the business was usually within the province of a solicitor or not.

Held, that by the words "trusts and powers" the testator meant only those trusts and powers which are expressly declared by his will, whether they would be duties attaching to an executor by virtue of his office or not.

REVIEW OF TAXATION.

John Ferdinand Pfeil, of Gisborne, by his last will, dated 19th May 1897, appointed Robert Edward Lewis, of No. 414 Little Collins-street, Melbourne, solicitor, and William Henry Cooke, of High-street, Prahran, grocer, "executors of this my will and trustees of my estate." The will then continued:-"I direct that the trustees or trustee acting in my estate shall receive a commission of two pounds per cent. on all income and one pound per cent. on the probate value of my estate. I give devise and bequeath all my real and personal estate whatsoever and wheresoever and all my rights assets credits and effects unto and to the use of the said Robert Edward Lewis and William Henry Cooke their heirs executors administrators and assigns but upon the trusts following namely to collect and reduce into money all my personal estate and to sell such part of my real estate as may be necessary to pay off all charges on the said real estate and all my debts funeral and testamentary expenses and the legacies bequeathed by this will.

1899

And to make any such sales by public auction or private contract for cash or on credit and subject to such special or advisable. And to convey And to receive and give But I give full power to to postpone the sale of any part

other conditions as may be deemed all property sold to the purchasers. discharges for the purchase money. my said trustees

of my real estate and to use the rents in the meantime for
keeping down the interest and paying interest on the other
legacies after twelve months from my death at four pounds
per centum such time of postponement not to exceed three
years. And I give power to my said trustees to let set repair
and generally to manage my properties while they remain
unsold." Then followed certain legacies. "And after the
payment of all debts mortgages and charges of every kind on
my estate I direct that the residue of my estate shall be
divided equally amongst my two sons
and my

daughter

their heirs executors administrators or

assigns. I empower my said trustees to invest any moneys coming to their hands and which for the time being may not be required in the execution of the trusts aforesaid upon such securities real or personal as they may think fit with full power to vary and transpose the same as they may think fit. I declare that my trustees shall be responsible only for their own respective acts defaults and receipts and not for each other and shall be exempt from liability for involuntary losses or for the default of any banker broker or other agent and shall be at liberty to deduct and allow to each other all expenses incident to the execution of the trusts of this my will. And I further declare that so often as any trustee or trustees herein named or to be appointed under this power shall die or desire to be discharged or refuse or become unable or unfit to act it shall be lawful for the trustees or trustee for the time being competent to act whether desirous of being so discharged or not to appoint a fit person or persons to succeed to the office of the deceased retiring refusing incapable or unfit trustee or trustees and by force of every such appointment as aforesaid the new trustee or trustees shall have the same powers and authorities as if he or they had been originally

In re PFEIL.

Holroyd, J.

1899

In re PFEIL.

Holroyd, J.

appointed by this my will. I appoint the said Robert Edward Lewis solicitor to my estate and declare that in addition to the commission allowed to him as such executor and trustee as aforesaid he or any firm of which he may for the time being be a member shall be allowed the usual professional charges and shall also receive a proper remuneration for all business done and all attendances time and trouble in or about the execution of the trusts and powers of this my will whether such business is usually within the province of a solicitor or not. In witness etc."

The testator died 18th July 1897. Probate of the will was granted to the executors named in the will. On the 7th February 1899 A'Beckett, J., made an order that "the bill of costs. of Robert Edward Lewis, Henry Hedderwick, and William John Fookes, solicitors (who carry on business under the firm name of Crisp, Lewis & Hedderwick), amounting to 2601. 98. 9d., delivered to William Henry Cooke and Robert Edward Lewis, the executors of the will of John Ferdinand Pfeil, deceased, be referred to the taxing officer to be taxed as between solicitor and client, and to certify the fair and proper amount to be allowed to the said executors in respect of the said bill, having regard to the terms of the testator's will." The bill was taxed, and certain objections to the taxation were disallowed by the officer, who stated his reason thus:- This bill was taxed on the 3rd March 1899, and certain objections being received from the said solicitors, the same were wholly disallowed by me for the reason following, i.e. :—That all the items objected to as disallowed upon the taxation are such as are within the ordinary duty of an executor, and that Mr. Robert Edward Lewis, one of the executors appointed by the will of John Ferdinand Pfeil, is entitled thereunder to and has received a certain sum as commission for acting as trustee in the said estate, and that the said commission was intended to apply and does apply to such items as are contained in the said objections. I would refer to the following cases:-Re Ames (a); In re Fish; Bennett v. Bennett (b); In re Chapple; Newton v. Chapman ” (c).

دو