1866. TICAL. F. PAYNTER. June 7. MR. JUSTICE MOLESWORTH.-This was an application to ECCLESIAS permit a solicitor to be a surety for an administratrix. I do not think there is anything in the Rule of Court to prevent In the goods of a solicitor being a surety in an administration bond. The prohibition is to his being bail, and the Rule is not to be extended beyond its legal terms. In Pulling on Attorneys, page 409, it is stated that this prohibition does not extend to criminal cases, and he refers to Rex. v. Bowes (v), which seems to be rather a doubtful authority. However, it is quoted as the recognised rule of the Court in the book to which I have referred. I have found also some Irish cases. In a case reported as Anonymous (w), it was held that the rule did not apply to an attorney giving security for costs for his client, and the same had been previously held in the case of Leonard v. Leslie (x). I think the rule is to be narrowed to the precise prohibition mentioned in it, and that a solicitor may be allowed to become surety for his client in an administration bond. The present application is, therefore, unnecessary. (v) 2 Doug., 466, n. (w) 1 Ir. Law Rep., 294. (x) Ib., 294, n. June 14. Upon an ap plication for letters of administration cum testamento annexo upon an exemplification of a will proved in IN THE GOODS OF HENRY BREWER WEBSTER, THE DECEASED. HE testator died in England, on the 4th April, 1865. Probate was granted in England to the executor and executrix named in the will. Mr. J. W. Stephen now moved, on an exemplification of the will, for a grant of letters of administration cum testa England, there ought to be evidence that there was property to be acted upon in England. Where it appeared that the assets in England were sworn under £450 and duty paid accordingly, Held, that this was sufficient. power of 1866. ECCLESIAS TICAL. mento annexo to Robert Sellars, the attorney under the executor and executrix. [Molesworth, J.-I think there ought generally to be evidence that there was property to be acted upon in England.] Where there is a doubt in In the goods of England, the only result is that administration is granted H. WEBSTER. instead of probate-Larpent v. Sindry (y); but here the practice always is to grant administration only. MR. JUSTICE MOLESWORTH.-If there is no property in England, probate may be granted there without anybody having any interest in disputing the will; and, in that case, I would not be disposed to adopt the English act of granting probate without some further enquiry. If there was any substantial property in England, I would then assume that what was done there was rightly done. In this case it appears by the exemplification that the assets in England were sworn under £450, and duty paid accordingly, and that I think sufficient. Application granted (z). (y) 1 Hagg, 382. (z) Vide next case. IN THE GOODS OF GEORGE WILLIAM GOODMAN, DECEASED. June 28. MR. WORTHINGTON moved for a grant of letters of Upon an ap administration cum testamento annexo, upon production and verification of an exemplification of a will already proved in England. It did not appear from any of the materials before the Court that the testator had left any personal property in England. plication for administra letters of tion cum testamento annexo upon an exemplification of a will proved in England, the Court requires evidence that the testator left personal property in England to found the jurisdiction of the English Court. 1866. ECCLESIAS- MR. JUSTICE MOLESWORTH.-I think I should adhere with some degree of uniformity to the practice generally adopted in cases of this sort, and that practice has been to In the goods of require evidence that the testator left personal property in England. I will not, merely because the Courts in England have granted probate, and without any evidence before me that there was property in England to found their jurisdiction, endorse what they have done. G. GOODMAN. Application refused. June 14, 21. The Court administra IN THE GOODS OF JOHN HICKMAN, DECEASED. THE HE testator in this case made a will appointing two will not grant executors, one of whom was within, and the other without, the jurisdiction of the Court. The executor without the annexo jointly jurisdiction had appointed an attorney under power to join with the co-executor in taking out administration. tion cum testamento to an execu tor in the colony and the attorney in the colony of a co-executor out of the colony; but will grant probate to the executor in the colony reserving leave to the other executor to come in and prove. Mr. J. W. Stephen moved for letters of administration. cum testamento annexo to the executor within the jurisdiction and the attorney of the absent executor jointly; and applied that they might be permitted to take administration without giving any security. In the goods of Cooper (a). Or, in the alternative, for probate to the executor in the colony, reserving leave to the co-executor to come in and prove. Cur. adv. vult. June 21. MR. JUSTICE MOLESWORTH.-In this case application was made for a grant of administration cum testamento (a) Ante Vol. I., I. E. & M., 68. annexo to an executor here, and the agent here of a co- In the absence of any express 1866. ECCLESIAS- J. HICKMAN. make an order so unusual. I am prepared to make the In the goods of ordinary order for probate to the executor in this country, saving the rights of the other executor to come in and prove. Order accordingly. IN THE WILL OF WILLIAM HAWKINS, DECEASED. June 21. THE testator died in November, 1865, having appointed Section 16 of the Act 15 three executors. Two of the executors proved the will; Vict. No. 10, one of the acting executors afterwards died. Mr. Bunny, for the surviving executor, moved for a direction to the Master to allow him such commission as should be just upon his collections, upon affidavits stating that the testator's property consisted of real estate, producing an income of about £900 per annum, and of a sum of £1,200 cash in bank. That it had been necessary to investigate carefully various claims made against the estate by the testator's brother-in-law, one of which, for £1,400, involved considerable trouble and inquiry, and that the testator's widow, who was interested under the will, consented to the present application. He submitted that the Court had jurisdiction, under 15 Vic., No. 10, sec. 16, make the order, which jurisdiction had been exercised in the will of Nicholas Chadwick (b). to MR. JUSTICE MOLESWORTH.-In that case I proceeded upon the ground of the testator's domicile, in a colony where such an allowance was usual, and on his probable contem(b) Sup. Ct., Vic., 10th Nov., 1865, ante Vol. II. authorising the allowance of commission to executors or administrators, will not be acted upon unless under special cir cumstances justifying a from the Court in not doing a thing which it had power to do, should have the effect of a law against doing it, unless under special and exceptional circumstances. 1866. ECCLESIASTICAL, plation of the executor's remuneration. It might have been a good habit to have made such an allowance in this colony, but it has not been made. The Act has been in In the goods of force for many years, and no rules have been framed under it; and the only cases in which I am informed by the Master that it has been acted upon have been those of creditors administering. W. HAWKINS. Mr. Bunny. If the Court consider that the circumstances make such an allowance improper in the present instance, I shall not press the matter, but if any difficulty is felt as to the jurisdiction, I submit that the power clearly exists. The executor ought not to be deprived of his rights because the Court has neglected to frame rules. In the greater number of wills testators provide for the remuneration of their executors; and it is considered that in default of such provision the Court might remedy the injustice. The section of the Act was introduced to supply an omission. MR. JUSTICE MOLESWORTH.-It originated in West India legislation. Every person there was supposed to be resident temporarily, employed exclusively in making money, and to have no leisure to attend to other persons' estates. The special inducement was therefore held out in contravention of the general principle that a trustee should make nothing by his trust. Here the practice has been not to interfere with the operation of the general principle, and the testator in the appointment of executors and the executor in declining to act, must be assumed to have been guided by their knowledge of the practice, that executors act gratuitously, and that that which had been the rule would continue to be the rule. This is a case in which the long habit not to do a thing should have the effect of a law against doing it, unless under special and exceptional circumstances. Application refused. |