SUPREME COURT.

Evening Star, Volume VII, Issue 1991, 22 September 1869, Page 2

SUPREME COURT.

IN BANCO. Tuts Day. (Before Mr Justice Ward.) AI’PI.IC.VTION UNDER THE TRUSTEES* ACT. Mr Smith presented a petition from certain of the executors of the late Mr John Jones, praying that the management of the estate might tie placed in the hands of Mr James Mills, and that the latter might receive a suitable compensation for bis services. Mr Macassey appeared on behalf of Mr Eccles, not to oppose, but to suggest the course that should be adopted. He submitted that the application should have been made before Mr Mills undertook tbe duties of an executor.

After argument, The Judge said that there was no rule better laid down than that in Lewiu on trusts, establishing the principle that no executor or trustee should receive any allowance for his trouble and loss of time. In the cam of Bain bridge v. Blair (20, Bevan), the Master of the Bolls, after referring to the principle, says: —lt is very different from the case where a trust being in the course of execution, and many things remaining to be done, which can be done beneficially only by a pareicular trustee, who cannot from his situation do it without grievous personal loss, and that party comes to the Court, and states that he is in a situation and willing to do these things, but that he cannot consistently wifh his own interest proceed with such duties, and gratuitously devote his time for the benefit of the trust ; in such a case it is competent considc ing what is beneficial to the cestuisijue trust, and is calculated to promote their interest, to take the in a ter into consideration, and to give proper remuneration to that person who alone by his own exertion could produce that benefit.” The only clause in the petition which went anything like to the extent required was the tenth, which stated that unless the petitioner (Mills) received a remuneration, he could not give his active management to the estate, in which case the petitioners would have to employ a stranger, whose services would be of far less advantage, and probably of far greater expense. There was nothing to show that Mr Mills was the only per mu who was calculated to undertake the duties without serious loss to the estate.

Mr Smith : The affidavit, in effect, states

The Judge : Scarcely. It was very difficult to place upon it such a meaning as that contended. He confessed he was unable to do so. It ouvht to have been shown that Mr Mills was the only person who could undertake the specific trusts. He was afraid he must refuse the application, although he did so with considerable regret. Costs on both sides to be paid out of the estate. Jessep v. Jesscp and another. On this case being mentioned, his Honor intimated that he was still of opinion that he had no jurisdiction to try the issues of fact. The case of Reid v. Fulton—argument on demurrer—was going on when our reporter left.