Imatges de pàgina
PDF
EPUB

the execution of the trust (a), where no breach of it has been committed (b). So trustees will be allowed all reasonable sums which they have actually paid to agents in the management of the property (c). Trustees who have acted fairly, and with such diligence as would have been expected from a provident owner in the management of his own property, are also entitled to receive the amount of costs incurred by them in proceedings relative to the trust estate, either at law or in equity (d).

Trustees should apply for their costs at the hearing of the cause, when the subject is regularly before the court; for although a trustee who did not appear at the hearing of a cause, on setting it down again was allowed his costs, it was upon condition of paying the costs of the day on the former hearing (e); and it does not appear that costs will be allowed to trustees as a matter of course, on an application after a decree has been actually made (ƒ).

It was laid down, that where there was such a dereliction of duty on the part of executors as obliged the court to charge interest upon balances in their hands, the same principle calls upon the court to compel the payment of costs (g). But this general rule was qualified by Sir W. Grant, M. R., who said there might be many cases in which executors must pay interest, which would not be cases for costs (h). It does not therefore follow that in all cases where an executor is directed to pay interest, he must also pay costs. Where

(a) Worrall v. Harford, 8 Ves. 8; jun. 246; Sammes v. Rickman, 2 Dawson v. Clarke, 18 Ves. 254.

(b) Anon. 12 Mod. 560.

(c) Bonithorn v. Hockmore, 1 Vern. 316; Macnamara v. Jones, 2 Dick. 587; Forrest v. Elwes, 2 Mer. 69; Henderson v. M'Ivor, 3 Madd. 275.

(d) Jones v. Lewis, 1 Cox, 199; Harley v. Phillips, 2 Atk. 48; Hide V. Heywood, 2 Atk. 125; Attorney General v. City of London, 1 Ves.

Ves. jun. 36; Whistler v. Newman, 4
Ves. 129; Pocock v. Reddington, 5
Ves. 794.

(e) Norris v. Norris, 1 Cox, 183. (f) Colman v. Sarell, 2 Cox, 206. (g) Mosley v. Ward, 11 Ves. 581; Seers v. Hind, 1 Ves. jun. 294.

(h) Ashburnham v. Thompson, 13 Ves. 404.

a suit was necessary for determining what construction was to be given to a will, the costs of so much of the suit as related to that were not charged on the executors, although they were held liable to pay all the costs of the inquiries as to the arrears of rent and balances in their hands, such inquiries having been solely occasioned by their breach of trust (i).

The costs in such cases will depend upon the circumstances of each particular case; and an executor or trustee who retains a balance in his hands will not be charged with the costs of the suit, except under circumstances of considerable misconduct, and where a suit is instituted with unnecessary haste against a trustee who has not misconducted himself, he will be allowed his costs (k).

So, although a purchase of the trust property by a trustee for his own benefit will be set aside, the court will not visit him with the costs of the suit, where the transaction is free from any imputation of fraud (1).

A trustee, seeking the direction and indemnity of the court as to the execution of his trust, is, whether plaintiff or defendant, entitled to his costs; unless the act required to be done leads to no responsibility, and the motive of the trustee is obviously vexatious (m).

Where the suit is occasioned by the neglect of the trustee (n), as in not keeping accounts (o), or is not necessary for the due execution of the trust, he will not be allowed costs (p).

A trustee, who had refused to pay a legacy without the direction of the court, in a case which admitted of no doubt, was refused his costs, but was not made to pay the costs of

[blocks in formation]

the suit, because he might have acted from ignorance, and not from any improper motive (q).

A trustee who, by his refusal to concur with the vendor in conveying an estate to a purchaser, occasioned a suit, was ordered to pay all the costs (r).

Where a trust estate descended to one who refused to execute a conveyance to the cestui que trust, after it had been approved by his solicitor, unless he were paid a sum of money, the court ordered the conveyance, with costs against the defendant, on a bill filed to compel the conveyance (s).

The court has allowed the expense of obtaining acts of parliament which the legislature has thought proper to pass, although the sanction of the court had not been previously obtained for it could not with any propriety dispute the prudence of measures which the legislature had adopted (t).

But trustees, desirous of obtaining an act of parliament for regulating a charity, ought to have the sanction of the Court of Chancery: for they will not be allowed the costs of an unsuccessful attempt to obtain an act of parliament, to enable them to administer the property of the charity on an improved plan, though their failure may arise from accidental circumstances, and their motives may be fair and proper (u).

Where trustees are visitors of a school, they must generally superintend it, and perform the duty bonâ fide; in which case they will be at liberty, like any other trustees, to charge the expenses fairly incurred in the execution of their trusts (v).

And where the sum allowed to the visitor by the deed of foundation was so small as not to induce him to exercise his visitatorial power, Lord Hardwicke intimated that it might be augmented (w).

(q) Knight v. Martin, 1 Russ. & Mylne, 70.

(r) Jones v. Lewis, 1 Cox, 199. (s) Watts v. Turner, 1 Russ. & Mylne, 634.

(t) Case of Downing College, cited 2 Russ. 519.

(u) Attorney General v. The Earl of Mansfield, 2 Russ. 501, 518.

(v) Attorney General v. The Dean and Canons of Christchurch, Jac. Rep.

487.

(w) Attorney General v. Price, 3 Atk. 108.

Where the founder of a grammar-school had directed the yearly sum of 107. to be paid to the master and wardens of a company for their labour and pains in visiting the school, and the rents of the lands given for the support of the school had greatly increased in value, by a new scheme for the regulation of the charity, approved by the court, 2001. a-year was directed to be allowed to the company for the expenses of the annual visitation of the school by the master and wardens of the company. In this case, the company having been declared a trustee as to the increased income of part of the property, and beneficially interested in the other part, subject to certain specified payments, it was declared that the annual sum of 2007. should be apportioned and paid out of the two estates, according to their relative annual value (x).

A trustee, misbehaving himself, will be ordered to pay costs out of his own pocket (y). So the governors of a free-school, who had been extremely negligent in the execution of their trust, were punished with part of the costs, although they had not been guilty of corruption (z).

Trustees for charities are not further chargeable than any other trustees are, who are only liable for their own receipts, except in cases of fraud or gross negligence (a). But such trustees shall be chargeable in like manner with any other trustees, whether they be private individuals or a public company for when the latter, being trustees for a charity, have mismanaged the fund and neglected the objects, they will be decreed to pay the costs of the original suit, and part of those of the appeal (b).

A corporation, whose conduct has given occasion to the suit, will be ordered to pay costs (c). A corporation, nominating a schoolmaster contrary to the particular tenor of their charter, are liable to costs (d.)

(x) Attorney General v. Skinners' Company, 2 Russ. 407, 446, 7.

(y) Loyd v. Spillet, 3 P.Wms. 344. (2) East v. Ryal, 2 P. Wms. 284. (a) Man v. Ballet, 1 Vern. 44; Keble v. Thompson, 3 Br. C. C. 112; 11 Ves. 252; 16 Ves. 477.

(b) Haberdashers' Company v. Attorney General, 2 Br. P. C. 370, 2nd ed.

(c) Attorney General v. Corporation of Stafford, Barnard. 33.

(d) The Town of Salop v. Attorney General, 2 Br. P. C. 402, 2nd ed.

So a corporation, being trustees of a charity and in possession of the charity estate, and suppressing or concealing any evidence relating to the charity, are liable to the costs of the suit (e).

It is the duty of a corporation, when apprised by an information against them of the nature and extent of the claims made upon them, to cause a diligent examination to be made, before they put in their answer, of all deeds, papers, and muniments in their possession or power, and to give in their answer all the information derived from such examination; and if they pursue an opposite course, and in their answer allege their ignorance upon the subject, and the information required is afterwards obtained from the documents scheduled to their answer, the court will infer a disposition on the part of the corporation to obstruct and defeat the course of justice, and on that ground alone will charge them with the costs of the suit (f).

A company, in which a charitable fund was vested, were ordered to pay the costs of an information, except those which were incurred by the necessity of settling a new scheme, where the charity had fallen into desuetude by the neglect of the company, and their general estate had profited by the nonapplication of the fund for a long series of years (g).

A company, in whom an estate was vested as trustees of a charity, who claimed a larger balance than in the result was found due to them, was deprived of their costs, on account of their attempt to overcharge the charity funds (h).

Trustees of charities have frequently been ordered, not only to account for charitable property which has been lost or misapplied, but on being removed from the trusts on account of their misconduct, directed at their own expense to convey the property to new trustees (i).

The House of Lords, on reversing an order made upon a

(e) Borough of Hertford v. Poor of Hertford, 2 Br. P. C. 377, 2nd ed.

(f) Attorney General v. the Corporation of East Retford, 2 Mylne & Keen, 35.

(g) Attorney General v. the Mer

cers' Company, 2 Mylne & Keen, 654.

(h) Attorney General v. Brewers' Company, 1 P. Wms. 376.

(i) Mayor of Coventry v. Attorney General, 7 Br. P. C. 235, 2nd ed.; ex parte Greenhouse, 1 Madd. 108.

« AnteriorContinua »