MARCH ተ. RUSSELL. [ 41 ] Now, as to the first point, which raises the proposition that assets cannot be followed in the hands of legatees, to whom they have been handed over by the personal representative, in ignorance of the demands of creditors which existed at the time, it is to be observed, that almost all, I may say all, the cases in which legatees have been compelled to refund, have been cases in which the assets have been distributed in ignorance of the claim. It can hardly be supposed that the personal representative would take upon himself the responsibility of handing over the assets to the legatees, if he was aware that any creditors of the deceased were still unpaid. Upon this branch of the argument, several cases were cited which, in my opinion, have no application whatever to the present question. They were cases in which an executor or administrator has been held protected for payments which, though not regular, were payments made in ignorance of the superior claims of other parties. They were cases in which the executor or administrator had honestly and faithfully discharged his duty, to the best of his knowledge; and he was held to be protected. But the question here is, whether the creditor shall not be entitled to follow the assets, which are his fund, (the debts not having been paid,) in the hands of persons who have not purchased them, but to whom they have been delivered in mistake. That a creditor may follow assets in the hands of legatees to whom they have been delivered in ignorance of the creditor's demand, has been an established principle of this Court from the earliest period, of the decisions in which we have any traces. In Hodges v. Waddington (1), the rule was laid down; and in Noel v. Robinson (2), it was said to be the constant practice to allow a creditor to compel a legatee to refund: From that period to the decision of Lord ELDON in Gillespie v. Alexander (3), there is no instance of any doubt being entertained as to the right of the creditor to follow assets in the hands of a legatee to whom they have been delivered upon the supposition of there being assets to pay that legatee: and what Lord ELDON says in Gillespie v. Alexander is applicable to more than one of the points in this case; for he says, that where a decree has directed an (1) 2 Vent. 360. (2) 1 Vern. 90; and see S. C. 2 Vent. 358. (3) 27 R. R. 33 (3 Russ. 130). account of debts, a creditor is permitted to prove his debt, as long as there happens to be a residuary fund in Court, or in the hands of the executor; and that if he has not come in till after the executor has paid away the residue, he is not without remedy, though he is barred the benefit of that decree; for, if he has a mind to sue the legatees, and bring back the fund, he may do so. Now, that is a case in which the assets have been administered in ignorance of the claim, because they have been administered by the Court, after means have been taken for the purpose of bringing forward all those who have claims. upon the fund; but that proceeding shall not protect a legatee from the liability to refund. Formerly, when legacies were paid, it seems to have been the practice to oblige the legatee to give *security to refund, in case any other debts were discovered. That practice has been discontinued, but the legatee's liability to refund remains. The creditor has not the same security for the refunding as when the legatee was obliged to give security for that purpose, but he has the personal liability of the legatee. The first proposition, therefore, cannot be maintained in point of law; but is contrary to the established rule of the Court. from the earliest period to which it can be traced. The second point made by the appellants is, that there ought to be an inquiry whether the plaintiffs knew of or acquiesced in the breach of trust, or the arrangement said to have been made in the year 1818. Now, in order to make it proper to direct that inquiry, it would be necessary to show that such knowledge and acquiescence would afford a defence, and also that sufficient matters are put in issue by the pleadings to entitle the party to ask for that inquiry. It cannot be meant that the plaintiffs acquiesced in the breach of trust at the time at which it was committed; because it was committed in or soon after the year 1810, when one of the plaintiffs was only ten years of age, and the other was only eight. What is meant, therefore, must be, knowledge and acquiescence after the two plaintiffs attained twenty-one, which as to one of them, was in the year 1821, and as to the other, in the year 1823. MARCH v. RUSSELL. *42] The knowledge or acquiescence would not be knowledge of or acquiescence in the breach of trust, but it would be knowledge in 1821 of a title to the property (supposing they became informed of their title then), and abstaining to sue, from that time until the year 1833: *but it was admitted that, as against Russell and the estate of Grant, the plaintiffs were not barred by the time that had elapsed. It was admitted (and indeed it could not have been disputed) that the time was not such as to prevent the plaintiffs from instituting this suit against one of the trustees and the representatives of the other. There appears, therefore, to be nothing to prevent them from suing Grant's legatees, unless there have been acquiescence, and knowledge, and concurrence, on the part of the plaintiffs. Not only has no knowledge, on the part of the plaintiffs, of the breach of trust been proved, but there is no allegation in the bill from which their knowledge would appear, nor is any such defence put in issue. It was said, that in the year 1818 another bill was filed, and that the plaintiffs may have known of the compromise of that suit. The only evidence of that is, that one of the witnesses deposes to the fact of a bill having been filed, in which the children were joined as co-plaintiffs, but of the proceedings having been stopped, by Russell having offered to give security for the payment of the arrears of interest, and for due payment of the interest for the future. This would be an agreement wholly for the benefit of the tenants for life, and affording no security, indemnity, or remedy to the children, who are the present plaintiffs. It is not to be supposed that, if they did know of this agreement, many years afterwards, when they came of age, they would acquiesce in an arrangement which gave them no sort of benefit, but on the other hand, would deprive them of their remedy for the recovery of the property; nor are there any allegations, *in the pleadings, of their having known of it, or of their having adopted it, so as to make it an act of their own. Then I was referred to the decree made in Smith v. Birch (1), which directed an inquiry, whether the plaintiffs had assented to or acquiesced in the funds remaining in wrong hands, by means (1) An unreported case before Sir John Leach in 1831. of which they were lost: but, without knowing all the circumstances of that case, it is impossible to know whether the facts justified that decree. If any breach of trust had there been committed, by the funds being allowed to be in improper hands, and if the parties to whom the funds belonged chose to acquiesce in that state of circumstances, they could not very well complain of an act to which they were themselves parties. That decree, therefore, affords no ingredient for coming to a conclusion in the present case. When the plaintiffs first became informed, either of the breach of trust or of the abandonment of the suit of 1818, does not appear; and whatever may have taken place before the year 1821 is immaterial, inasmuch as, up to that period, they were both under age. There is no allegation with respect to the time at which they became aware of any of the circumstances, except that they came of age in the years already mentioned, and that the bill was not filed until the year 1833. It is not contended that the lapse of time will bar their right to the remedy to which, according to the practice of this Court, they are entitled. I see nothing to interfere with that right so vested in them, and the appeal must therefore be dismissed with costs. MOORE v. FROWD (1). Decree affirmed. (3 My. & Cr. 45-51; S. C. 6 L. J. (N. S.) Ch. 372; 1 Jur. 653.) A trustee, who is a solicitor, is entitled to be repaid such costs, charges, and expenses only as he has properly paid out of pocket; and it makes no difference in this respect, that the instrument creating the trust may have directed that the trust monies should be applied in payment of all expenses, disbursements, and charges, to be incurred, sustained or borne by the trustee, in professional business, journeys or otherwise; and that the trustee might retain all reasonable costs, charges, and expenses which he might sustain or be put unto; such costs, charges, expenses to be reckoned, stated, and paid as between attorney and client. and THIS cause was heard before the Lord Chancellor, when Master of the Rolls, and the parties consented to receive his Lordship's judgment after he had become Lord Chancellor. One of the questions discussed at the hearing was, whether (1) In re Fish [1893] 2 Ch. 413, 62 L. J. Ch. 977, 69 L. T. 233, C. A.; In re Webb [1894] 1 Ch. 73, 63 L. J. MARCH ". RUSSELL. 1835. Dec. 18, 19, 21. 1836. Jan. 13. 1837. Aug. 15. Lord COTTENHAM, [45] MOORE v. FROWD. [46] four trustees, who were all attorneys and solicitors, were entitled to any costs or charges beyond those which they might have paid out of pocket. By indentures of lease and release, of the 6th and 7th of April, 1827, certain property was conveyed by the plaintiff (Charlotte Moore) and others, to Edward Frowd, Robert Bond, William Palmer, and William Elkington, who were all attorneys and solicitors, in fee, upon trust to sell, in lots for building, and to apply the produce of the sale, and the rents and profits to accrue in the mean time, in payment of the costs, charges, and expenses of preparing the indenture of release, and all the expenses, dis bursements, and charges, already or thereafter to be incurred or sustained or borne by the trustees, or the trustees or trustee for the time being, either in professional business, journeys, or otherwise, for the purpose of negotiating or performing the agreements, trusts, and purposes thereinbefore mentioned or directed to be carried into execution; and also all the costs, charges, and expenses of the persons who had been, or should or might be employed by the trustees for the time being, as surveyors, auctioneers, bailiffs, agents, or servants, in *preparing and making maps, plans, surveys, estimates, particulars and conditions of sale, roads, bridges, sewers, or other improvements upon the property, or in managing the same, and receiving the rents and profits thereof, or of selling clay and brick earth thereon, or otherwise letting or selling the same premises, or any part thereof; and also all sums of money which the trustees might deem expedient and proper, for the purchase of any estate or interest of any person in the property, to enable them to make a good and marketable title or titles to any purchaser or purchasers; and also of all the expenses of abstracts of title, and copies of deeds and other documents for perfecting the same; and all other the expenses of carrying the trusts, powers, and authorities therein mentioned into execution, and then to make such payments as were therein mentioned. It was further provided that the trustees should, out of the trust monies, deduct, retain to, and reimburse themselves all such reasonable costs, charges, and expenses as they or any of them should or might sustain, expend, or be put unto, in or about the execution of all or any of the trusts thereby in them reposed; |