M. R.

1872

In re

ESTATE.

not have enforced payment of the money without payment of the third judgment for £221, your Lordship observes:-"I have to consider whether it makes any difference that the policy was on the life of Lord Suffield, and that the person now suing is his legal HASELFOOT'S personal representative. I cannot see any distinction. It is equally the property of Lord Suffield or part of his estate which' came properly into the hands of the Defendant, and which neither Lord Suffield nor his executor is entitled to take away until the Defendant has been paid what is due to him."

CHAUNTLER'S

CLAIM.

Jan. 29. LORD ROMILLY, M.R.:

This is a case adjourned from Chambers upon the following facts, which were agreed upon:-[His Lordship then stated the facts of the case.] The question is, whether Messrs. Chauntler & Crouch are entitled to retain the balance in their hands in discharge of the amount which is due to them, or whether they must come in and prove for their bills of costs and take a dividend upon the estate. Of course the question would not arise unless the estate were insolvent. I think they are entitled to retain the amount of the bills of costs out of the balance in their hands.

The case of Spalding v. Thompson (1), which was cited, seems to me precisely in point. It is very true that it is a decision of my own, but I do not find that it has ever been reversed or doubted. I have reconsidered the point as to whether the decision is right; I think it is, and I must be bound by it on the present occasion. It does not appear to me to be a case of set-off at all. This is a case in which there was at the death of the testator a sum of money coming into the hands of strangers, and which is claimed by the executor as part of the testator's estate. The strangers say that the testator owed them some money, and that therefore they are entitled to retain as much as would pay the whole of the amount due to them. This is not a question of set-off. The question of set-off arises where there are different payments by a testator to a stranger, and by the stranger to the testator, and different rights in respect of such payments. It might arise in such a case as this:

(1) 26 Beav. 637.

M. R.

1872

In re HASELFOOT'S

ESTATE.

CHAUNTLER'S

CLAIM.

where a stranger is a debtor to the testator's estate at the time
of his death for £1000, and the executor files a bill or brings an
action against him for the amount of his debt, and the creditor

says, "It is very true, I owed £1000 on this account, but the
testator owed me £1000 upon another account," and there is no
parity between these accounts-in that case, if the debts arose in
different rights, the Court would not allow a set-off. The creditor
might institute proceedings against the executor, but he must pay
his debt to the estate, and he would be entitled only to his dividend.
But it would be a strong thing to say that where a man has got a
part of the estate of a testator in his hands, and the testator
owes him a sum of money, he cannot be called upon to deliver
up
the whole, and can only come in for a dividend upon the testator's
estate. I do not think that is the law. I have never so held, and
in former cases I have always distinguished such a case from one of
set-off where there is a cross demand. Here the claimants only
seek to retain what is due to them, and if the executors have any
demand upon the fund, it is upon the surplus and balance which
will remain after discharging the debt. I am of opinion, therefore,
that the claimants, having a part of the testator's estate in their
hands, are entitled to retain enough to discharge what is due to
them. I think there should be no costs of this proceeding. The
executor is entitled to his costs out of the estate.

Solicitors: Messrs. Chauntler, Crouch, & Spencer; Messrs. Lucas & Coe.

In re STOKES' TRUSTS.

Trustee Acts-Retiring Trustee-Impossibility of finding Successor-Appointment of Continuing Trustees in place of Continuing and Retiring Trustees.

When a trustee wishes to retire, and a successor cannot be found, the Court can appoint the continuing trustees to be sole trustees in the place of the continuing and retiring trustees.

THIS

was a Petition under the Trustee Acts by the cestuis que trust under the will (dated the 7th of June, 1867) and five codicils of George Stokes, who died on the 27th of August, 1870. The testator appointed Mary Ann Stokes, George Edward Stokes, and F. M. Ball, trustees of his will and codicils (two of whom, viz., Mary Ann Stokes and George Edward Stokes, were also beneficiaries thereunder). He availed himself of the statutory powers of appointing new trustees, but expressly directed that upon any new appointment the number of trustees might be augmented or reduced.

The trust property consisted of leaseholds, stock, and cash.

In January, 1872, John Puddick was appointed a new trustee of the will and codicils in the place of F. M. Ball: and the leaseholds were assigned so as to become vested in Mary Ann Stokes, George Edward Stokes, and John Puddick; but the stock and cash had not been transferred.

George Edward Stokes now wished to retire from the trust, but a successor could not be found. Under these circumstances the Petitioners asked for the appointment of Mary Ann Stokes and John Puddick, to be trustees of the will and codicils, in the place of Mary Ann Stokes, George Edward Stokes, and John Puddick; and for a vesting order.

Mr. Charles Hall, for the Petitioners, submitted that if George Edward Stokes had retired in January, 1872, when Puddick was appointed, the appointment of Puddick as trustee in the place of G. E. Stokes and F. M. Ball would have been valid; that such an appointment as now sought was within the Trustee Act, 1850, s. 32, and was in itself most reasonable. The only result of a refusal of

M. R.

1872

Feb. 17, 19.

M. R.

1872

In re STOKES' TRUSTS.

the order would be the institution of an administration suit, in which all proceedings would be immediately stayed as against George Edward Stokes.

THE MASTER OF THE ROLLS said that the application was entirely novel, and would require consideration before it was granted.

Feb. 19. THE MASTER OF THE ROLLS said, that although he had never met with such a case before, he considered Mr. Hall's argument to be well founded, and that such an order as was required could be made under the Trustee Acts; and he made the order as prayed.

Solicitors: Messrs. M. & F. Davidson.

M. R.

. 1871

Dec. 9.

Ex parte CORPUS CHRISTI COLLEGE, OXFORD.
Railway Company-Lands taken by different Companies-Permanent
Investment of Purchase-money-Costs.

Portions of lands belonging to a corporation were taken by four different companies, the undertakings of three of which afterwards became united:Held, that the costs of a joint permanent investment of the purchasemoneys must be borne in halves by the subsisting companies.

In re Maryport Railway Act (1) doubted and not followed.

THIS was a Petition for the permanent investment of six sums of money paid into Court under the Lands Clauses Consolidation Act in respect of six pieces of land formerly belonging to Corpus Christi College, Oxford, which had been taken for the purposes of certain railway companies. Two of these pieces of land had been taken by the South Western Railway Company, two by the Great Western Railway Company, one by the Oxford and Rugby Railway Company, and the remaining one by the Cheltenham and Great Union Railway Company. After the lands were taken, but before the purchase-money was paid into Court, the two last(1) 32 Beav. 397.

named companies were merged by Act of Parliament in the Great Western. The moneys, however, were paid in to the accounts of the old companies, whose undertakings had been transferred to the Great Western Railway Company. :

The only question was as to how the costs were to be borne.

Mr. Cookson, for the Petitioners.

Mr. Gaselee, for the South Western Railway Company, submitted that, as the lands had been taken by four railway companies, three of which were now represented by the Great Western Railway Company, the South Western Company ought to bear only one-fourth of the costs, and the Great Western Company ought to bear the remaining three-fourths: In re Maryport Railway Act (1).

Mr. H. A. Giffard, for the Great Western Railway Company :— In the case cited the moneys were paid into Court by three distinct companies, the Maryport Company, the South Durham Company, and the Eden Valley Company. After the payment had been made the two latter companies were dissolved, and their rights and liabilities transferred to the Stockton and Darlington Railway Company. Here the rights of the Oxford and Rugby Railway Company and the Cheltenham and Great Union Railway Company were transferred to the Great Western Railway Company before the payment into Court; and though the money was paid to the accounts of the two defunct companies, it was in reality paid by the Great Western Railway Company. The costs ought to be borne equally, according to the rule laid down in Ex parte Bishop of London (2).

THE MASTER OF THE ROLLS expressed a doubt whether the case of In re Maryport Railway Act had been correctly decided; and ordered the costs to be borne equally by the South Western and Great Western Companies.

Solicitors: Messrs. Pownall, Son, Cross, & Knott; Mr. Crombie; Messrs. Young, Maples, Teesdale, & Co.

(1) 32 Beav. 397.

(2) 2 D. F. & J. 14.

M. R.

1871

Ex parte
CORPUS

CHRISTI
COLLEGE,
OXFORD.