M. R. 1871 LONGLEY v. LONGLEY. exclusively applicable to personal estate, and I must, therefore, follow Dunnage v. White (1), and hold that there is a resulting trust in favour of the Plaintiffs. Solicitors: Mr. W. Sturt; Messrs. Wilkinson & Howlett. Practice-Revivor-Death of Sole Plaintiff-Defendant Legal Personal Representative of deceased Plaintiff. Where a sole Plaintiff dies before decree, and a Defendant becomes his legal personal representative, the common order to revive cannot be made. THIS Mr. Freeling, for the executor, now applied for the common order to revive, citing Foster v. Bonner (2). LORD ROMILLY, M.R., considered that a bill was necessary, and refused the application. Solicitors Messrs. Vizard, Crowder, & Co. (1) 1 Jac. & W. 583. (2) 33 L. J. (Ch.) 384. MOORE v. MORRIS. [1860 M. 193.] Practice-Administration Suit-Death of Trustee-Representation-15 & 16 Where one of two trustees of an estate which was being administered in Court died intestate and, as was alleged, insolvent, after a decree for an account against himself and his co-trustee, and after the certificate made in pursuance thereof had been settled by the Chief Clerk, except in some formal particulars : Held, that the proceedings ought to be carried on in the absence of a representative of his estate, although considerable balances were proved to be due from the trustees, and although one of the parties having the conduct of the cause was entitled to take out representation to the deceased trustee. THIS was a suit instituted for the administration of the estate of a testator named Moore, of whose will Paul Moore and Eli Morris were the trustees and executors. Paul Moore was also a residuary legatee thereunder. By the decree, which was made in March, 1861, the usual accounts of the estate were ordered to be taken as against the trustees; and by the order on further consideration in December, 1862, these accounts were directed to be continued. On the 26th of May, 1871, Paul Moore died, intestate, and, as was alleged, insolvent. One of the parties having the conduct of the cause was entitled to take out administration to his estate, but declined to do so. At the time of the death of Paul Moore the Chief Clerk had proceeded to a considerable length with the settlement of his certificate in pursuance of the order on further consideration. It was matter of dispute how much remained to be done. In the opinion of the Court only the date of the certificate, and the amounts of interest calculated up to that date, remained to be filled in. By the certificate considerable balances were found due from the trustees. On the 28th of June, 1871, an order was made at Chambers directing the proceedings to be carried on, notwithstanding the absence of any person representing the estate of Paul Moore. In November, 1871, the cause came on for further consideration, M. R. 1871 Nov. 25; M. R. 1871 MOORE V. MORRIS. and the objection was raised on behalf of Eli Morris that it ought not to be heard in the absence of a representative of Paul Moore. The Court, without hearing any argument, yielded to the objection, and directed the cause to stand over generally, with liberty to apply to restore it. A motion was now made that the cause might be restored to the paper notwithstanding the absence of a representative of Paul Moore. Sir R. Baggallay, Q.C. and Mr. Shebbeare, in support of the motion : At the time of the death of Paul Moore the certificate was all but complete; what remained to be done was merely matter of form. He has died utterly insolvent, and the objection is raised only to enable the surviving trustee to avoid accounting. It is precisely one of the cases which the enactment 15 & 16 Vict. c. 86, s. 44, was intended to meet. The MASTER OF THE ROLLS-I have frequently to consider that section in Chambers, and have always held that that section does not apply in the three following cases: first, where the estate of the deceased person is that which is being administered in the suit; secondly, where the interest of the deceased person is adverse to that of the Plaintiff; thirdly, where the representative of the deceased person has active duties to perform. Sir R. Baggallay:-I submit that the second case ought to be taken with this qualification, that relief is sought against the estate of the deceased person. Here we seek relief against the surviving trustee only, and we might have instituted a suit against him alone. Band v. Randle (1) is a direct authority in support of the application. Mr. W. Pearson, for Eli Morris : The whole amount of the balances found by the certificate to be due from the trustees jointly is in reality due from Paul Moore alone, and the effect of acceding to this application will be that my client will be prevented from recovering the amount paid by (1) 2 W. R. 331. him from the estate of his co-trustee. It is true that where there is a joint liability in respect of a liquidated amount, you may proceed against one of the persons jointly liable, but where an account has to be taken all the persons liable must be parties to the suit, which being begun against all must be prosecuted against all. The certificate was not complete at the time of Paul Moore's death; in fact proceedings for the purpose of shewing the inaccuracy of some of the Chief Clerk's findings were pending. Moreover, Paul Moore is entitled to a share of the residue of that estate, and that must be applied in making good any funds coming to him. Under these circumstances the proceeding is adverse to Paul Moore's estate, and the Court ought not either to allow the suit to go on in the absence of a representative, or to appoint a person to be representative. Such a representative would not be the true legal personal representative of the estate. As to Band v. Randle (1), in that case it was found impossible to find a representative; here one of the persons having the conduct of the proceedings might take out letters of administration. The MASTER OF THE ROLLS said that he thought the case was within the statute, but that the proper course was to appoint some one to represent the estate. Sir R. Baggallay, in reply:— In all cases where the Court has power to appoint a person to represent an estate, it may also allow the proceedings to go on in the absence of a representative. Here the appointment of a representative can only lead to expense and delay without any result. As to the suggestion that anything will be coming to Paul Moore's estate in this suit, it is only too clear that the testator's estate will be insufficient for payment of the pecuniary legatees in full. Dec. 4. LORD ROMILLY, M.R., after stating the facts, continued: I am of opinion that the order of the 28th of June, 1871, which is the substantial matter in question, was correctly made. I think that this is shewn by the case of Band v. Randle, and I am further (1) 2 W. R. 331. M. R. 1871 MOORE v. MORRIS. M. R. 1871 MOORE บ. MORRIS. of opinion that it is the most convenient course to follow, and does no harm to any one. If Paul Moore has left any property, any one may take out administration to his estate. Mr. Morris may do so, and in that event he will get repaid all that he may have to pay in this suit. But if Moore has left no estate, it would simply be waste of money to appoint any one to represent him; it would neither be in the interest of the Plaintiff nor of any one else to make an appointment from which no result could follow. Moreover, in all these cases delay is to be avoided. Some one will have to pay one day, and delay does not ultimately benefit him, and it does harm to every one else. I think, therefore, that the cause must be restored to its place in the paper. Solicitors: Messrs. Walker & Sons; Mr. Letts, jun. M. R. 1871 Dec. 1. In re RICHARDSON. Land Registry Act (25 & 26 Vict. c. 53), s. 17—Indefeasible Title-Mortgagor with indefeasible Title-Purchase from Mortgagee-Form of Order. The order made in In re Richardson (1) varied. IN this case Mr. Thomas Richardson had purchased from the first mortgagee of an owner registered with an indefeasible title, and the Master of the Rolls had directed that Thomas Richardson should be registered as owner with indefeasible title in the same manner as if he had purchased from the former registered owner, without his (the former owner) having created any incumbrances subsequent to the mortgage to the mortgagee selling to Thomas Richardson. The order then proceeded: "But his Lordship doth not direct any alteration to be made in the record of incumbrances." See the case reported (1). Mr. Caldecott now mentioned the case, and stated that the Chief Registrar considered that the effect of the last words in the order (1) Law Rep. 12 Eq. 398. |