REMNANT v. HOOD. (27 Beav. 74-82.) [Affirmed on appeal, as reported in 2 D. F. & J. 396. A question of costs in this suit is reported post, p. 554.] PAYNE v. LITTLE. An order to tax the costs of an executor in a suit, including any costs, charges and expenses properly incurred by him in the execution of the trusts of the will, does not include the costs of his defence to other suits instituted against him as executor. THE defendant John Little was the executor of the testator William Preest, who died in 1820, and this suit was instituted by the plaintiff, a cestui que trust under the will, for the administration of the estate (1). By the decree made upon the hearing for further consideration, dated the 6th of July, 1858, it was referred to the taxing Master to tax (amongst others) "the costs, as between solicitor and client," in the cause of Mr. Little, such costs "to include any costs, charges and expenses properly incurred by him in the execution of the trusts of the will of the testator. The costs carried in on behalf of Mr. Little included his costs in his defence of three suits relating to the estate of the testator called Newland v. Little, Burridge v. Deacle, and Payne v. Wrench; but the taxing Master declined to tax them under the general directions contained in the decree, he being of opinion that they ought to be specifically mentioned in the decree. Mr. Little presented the present petition, praying that the taxing Master might be ordered to tax the costs of these three suits. These three suits were of the following nature: The suit of Newland v. Little was instituted in the Equity Exchequer, in 1834, for the administration of the estate of the testator, and a decree was made in 1837 for the *administration of personal estate only. No report had ever been made, but, by the decree in the present suit, the accounts taken in Newland v. Little were to be adopted therein. Burridge v. Deacle was instituted in 1827, for the purpose of establishing a lien of Burridge for his unpaid purchasemoney, upon estates which Payne had purchased from Burridge, and had subsequently conveyed to the testator in his lifetime, and which the testator had before his death contracted to sell. In 1833 a decree had been made establishing Burridge's lien. Payne v. Wrench was a suit instituted in 1819 against the testator, and revived against his executors. (1) Ante, p. 1. 1859. June 2, 28. 1859. June 15. Rolls Court. [83] [ *84 ] 324 PAYNE v. LITTLE. 1859. June 8. Rolls Court. [85] 1859. CH. 27 BEAV. 84. The costs, charges and expenses of Little in these suits had not been paid. Mr. R. Palmer and Mr. Speed, in support of the petition, submitted, that Mr. Little was entitled to be paid, out of the estate of the testator, the costs, charges and expenses properly incurred by him as executor and trustee of the will, in and about his defence of the three several suits of Newland v. Little, Burridge v. Deacle, and Payne v. Wrench. Mr. Follett and Mr. Morris, contrà, were not called on. THE MASTER OF THE ROLLS: I have no doubt that the taxing Master is right, and that he could not tax these costs under this order. It would be opening the whole matter. I must make the petitioner pay the costs of this petition. TROWARD v. ATTWOOD. (27 Beav. 85-86.) When the matters in dispute have been disposed of by an independent proceeding, the plaintiff may apply to stay proceedings, and the Court I will then dispose of the costs. But where the suit has been dismissed against some of the defendants for want of prosecution, the Court is no longer able to adjudicate as to the costs, in the absence of the dismissed parties, and in default of prosecution, the bill will be dismissed in the usual way, with costs. SOME of the defendants had already procured the bill to be dismissed against them for want of prosecution. Other defendants now moved to dismiss the bill, as against them, for want of prosecution. Mr. Wintle, for the plaintiffs, stated, that they had abstained from prosecuting the suit in consequence of the rights of the parties having, pending this suit, been determined in another cause (1). He argued, that the questions between the parties having been disposed of by an independent proceeding, this suit ought either to be dismissed without costs, as in The Sutton Harbour Company v. Hitchens (2); or that the defendant's costs ought to be added to their security. THE MASTER OF THE ROLLS: Where, pending a suit, the matters in litigation are disposed of by an independent proceeding, as by an Act of Parliament or otherwise, the plaintiff may apply to the Court and stop the prosecution of the cause. The Court will then look at the record and the other facts, and dispose of the costs, either by staying the suit with or without costs, or make such order as may be (1) Perry Herrick v. Attwood, 119 R. R. 10 (2 De G. & J. 21). (2) 91 R. R. 52 (1 D. M. & G. 161; 15 Beav. 161). right. But the Court can only deal with the merits of a cause TROWARD in the presence of all the parties, and if the *plaintiff waits ATTWOOD. until one of the defendants has been dismissed and is no longer [86] a party to the suit, the Court cannot then make any order to his prejudice, which would be the effect of ordering the costs of a defendant to be added to his security. Here it is impossible to determine the merits of this cause between the plaintiffs and one only of the defendants, and all I can do is, to make the usual order to dismiss for want of prosecution with costs. SMITH v. PEPPER. (27 Beav. 86-89.) Bequest to each of A.'s sisters and to her brother, or to such of them as may be living at the time of my decease, in case of those who may not bo in existence at my death, to go to their respective descendants : Held, that the descendants of a sister who was dead at the date of the will were excluded. Bequest to "descendants" of A., “in such proportions as each may be entitled" under the Statute of Distributions: Held, that a child of A. took in exclusion of grandchildren. STEPHEN FRANCIS, by his will, dated the 27th of July, 1857, appointed the plaintiffs his executors, and (among other legacies) bequeathed as follows: "And in regard to the relations of my dear departed wife, Sarah Francis, I give and bequeath to each of her sisters and to her brother, or to such of them as may be living at the time of my decease, 1,000l. each of stock in the Three per cent. Consolidated Annuities, the said sum, in the case of those who may not be in existence at my death, to go to their respective descendant or descendants, in such proportions as each may be entitled to under the laws which may then be in force for the distribution of unbequeathed property; and if either of the sisters or brother aforesaid shall, at the time of my decease, have departed this life without leaving any descendant or descendants, I give and bequeath the share of such brother or sister to be divided, in the lawful proportions, amongst the remaining sisters or brother, or their descendant descendants." or The testator bequeathed his residuary property to the plaintiffs and Edward Edwards on certain trusts. The testator died in July, 1858. One of the sisters of the testator's wife, viz., Mary Ann Pepper, had died in 1844, and prior to the date of the testator's will. She left children, who were still living. This gave rise to the first question, whether the children of Mary Ann Pepper were, upon the true construction of the testator's will entitled to a legacy of 1,000l. Consols. 1959. June 24, 25. Rolls Court. [86] [ 87 ] Another sister of the testator's wife, viz., Amey, died in January, 1858, that is, after the date of the will, but in the life of the testator. She left surviving her one child, Amey Eliza Wybrow, who had six children. This gave rise to the second question, whether Amey Eliza Wybrow was or was not entitled to the legacy of 1,000l. Consols, in exclusion of her children. Mr. Lloyd, for the children of Pepper, argued that the descendants of such of the wife's sisters as died before the testator were entitled to a legacy of 1,000l.; and that it could not have been the intention of the testator to exclude the Peppers merely because their mother had died prior to the will. He cited Tytherleigh v. Harbin (1), Ive v. King (2), Gaskell v. Holmes (3), King v. Cleaveland (4), Coulthurst v. Carter (5). Mr. Selwyn, for the children of Mrs. Wybrow, [argued that issue of every degree participated with their *mother in the legacy]. Mr. R. Falmer, for the residuary legatees: This is in the nature of a substitutionary bequest, and it cannot take effect in favour of descendants, unless the persons whom they represent could themselves have taken under the will. The descendants of sisters who were dead at the date of the will are, therefore, excluded, for they could not by possibility have been the objects of the original gift: Christopherson v. Naylor (6), Butler v. Ommaney (7), Gray v. Garman (8). The testator refers to persons who might be in existence at his death; but he knew at the date of his will that Mrs. Pepper was already dead, and could not be included. His object was to prevent a lapse, which could only happen in the case of the persons living at the date of his will. If he had inserted the sisters of the wife by name, it would have been absurd to include one who was then dead. THE MASTER OF THE ROLLS: Upon a further consideration of the question in this case, I have come to the same conclusion as I expressed yesterday. In the first instance, there is a bequest of 1,000l. each to the wife's "sisters and brother." I entertain no doubt that this can only mean persons living at the *date of the will. The ordinary meaning of the words, and the rules of grammar, limit the gift to persons then alive. Then the testator, anticipating the possibility of some of them dying before him, adds (1) 38 R. R. 121 (6 Sim. 329). (5) 92 R. R. 489 (15 Beav. 421). or to such of them as may be living at the time of my decease." In the case of those who may not be in existence at my death to go" (that is, their shares are to go), "to their respective descendant or descendants; " that must mean, to go to the descendants of the persons of whom he had spoken before, and, if so, it is no more than a substitution of the "descendants" for a person before mentioned, in case he should not be alive at the testator's death. It is impossible to say, that this could apply to a person who was dead at the date of the will. It is very possible that he intended to include all the sisters and their descendants, but he has not expressed it; and if I so decided, from a presumed intention gathered from other circumstances, I should be both making a will for the testator and upsetting the fixed rules of construction. A. was tenant for life without impeachment of waste, with remainder to her issue in tail, with remainder to B. for life, with remainder to his issue in tail, with remainder to B. in fee. The COURT directed some timber to be cut in the life of A., and the produce to be invested. A. survived B., and both A. and B. died without issue. A. (as B.'s heir) became entitled in remainder in fee: Held, as between the heir and executor of B., that the timber money was realty, and belonged to the heir. THE testator, by his will, devised some real estate to Esther Field for life, with remainder to her children in tail, with remainder to her brother James Field for life, with remainder to his children in tail, with remainder in fee to James Field. The tenants for life were impeachable of waste. The COURT, in a suit for the administration of the estate, had, during the minorities of Esther and James, directed some timber, which was deteriorating, to be cut. The fund was brought into Court, and the income was directed to be paid to the tenant for life, with liberty to apply at her death. James died without issue in May, 1853, leaving [his sister Esther] (2) his heir, and she died without issue in December following. The timber money was claimed both by the heir of Esther and the executor of James. Mr. Selwyn and Mr. Osborne, for the heir-at-law of Esther, (1) Disapproved and not followed by COZENS-HARDY, J., in Hartley v. Pendarves [1901] 2 Ch. 498, 70 L. J. Ch. 745, 85 L. T. 64, where timber had been properly sold under an order in lunacy; and in Burgess v. Booth [1908] Ch. 648, 78 L. J. Ch. 32, the Court Appeal held that an order of the Chancery Division rightfully made for (2) Here by a mistake in the original O. A. S. SMITH v. PEPPER. 1859. June 27. Rolls Court. [90] |