tainer. We submit he was wrong. At all events there was no necessity for retaining the leading counsel at that time. They referred to Green v. Briggs, 7 Hare 279; 474. Next as to the charges for perusal of the affidavits; the rule is that the charge can only be made when a copy of the affidavit is taken, therefore upon this technical ground the charge cannot be supported. Mr. Kay and Mr. Eddis, for the defendants. The circumstances justified the employment of three counsel; and the Vice-Chancellor was right in considering the employment of a leader on the interlocutory proceeding as equivalent to a retainer. They referred to Horsley v. Cox, 38 Law J. Rep. (N S.) Chanc. 678; s. c. 7 Eq. 464; Betts v. Clifford, 1 Jo. & H. 74. As to the perusal of the affidavits, it was the solicitor's duty to see that the affidavits were such as they were represented to be; he would have been otherwise liable for negligence. This is the only way of charging. See order xxviii. and the regulations there referred to. LORD JUSTICE JAMES.-In the case of Cousens v. Cousens (ubi supra) this Court affirmed the decision of the Vice-Chancellor, who had agreed with the view taken by the taxing master. The Court in that case held that it came within the rule that in certain circumstances where something had happened to one of the opposing counsel, a party might have to pay for the costs of his opponent employing three counsel. I have some doubt whether we did not go somewhat too far in that case. But if we were to extend the rule to the present case it would come to this: that in every instance where a junior counsel takes silk during the progress of a suit his client would have the right to employ three counsel and charge their costs in his bill against his opponent. That rule I should be most unwilling to establish. I am of opinion in the present case that the taxing master was quite right in saying that this case does not fall within Cousens v. Cousens (ubi supra), and that there was no moral obligation to employ at the hearing a Queen's Counsel who had been engaged upon an interlocutory proceeding. The other point related to the perusal of the affidavits, and I am of opinion that there was no perusal of the affidavits within the meaning of the general order. The perusal of an affidavit means the work of a professional man engaged in ascertaining the contents of the affidavit and considering the same with the aid of his professional experience in order to give advice to his client as to the course to be pursued by him. He applies his professional knowledge to the perusal. In this case there were a number of affidavits, which were stated to be all exactly alike; the defendants were all exactly in the same position, and their solicitor was offered a lithographed copy of the affidavits, which were all lithographed. It was said that the solicitor was not bound to take it for granted that the affidavits were all alike-nay, that he was bound not to do so, but to satisfy himself as to the truth of the statement. It may be so, but still the mere verification of the statement is not a perusal such as I have referred to, and the taxing master was perfectly right in saying that the solicitor ought not to charge for a perusal which he never made. I would almost say that a solicitor who has regard for his fame as a respectable man would not do so. The order of the Vice-Chancellor must be discharged. LORD JUSTICE MELLISH.-I am of the same opinion. Solicitors-Messrs. Robinson, Son & Edmonds, for appellant; Messrs. Flux & Co., for respondents. General Power of Appointment-Residuary Bequest-Execution of Power-Wills Act, s. 27. R. who had promised his deceased brother to make some provision for that brother's illegitimate children, made his will containing a residuary bequest in favour of other persons. Five weeks afterwards he executed a settlement of certain stock, the trusts of which, subject to a general power of appointment reserved to himself, were for the benefit of the brother's illegitimate children. He then died:-Held, that under the circumstances the residuary bequest did not operate as an execution of the general power of appointment, so as to carry the settled fund away from the brother's illegitimate children. This was a petition under the Trustees Relief Act. Rogers Ruding died in 1856 in embarrassed circumstances, leaving an illegitimate son, R. B. Howe, the present petitioner, and an illegitimate daughter, Laura Braisby, wholly unprovided for. On his death-bed he implored his brother, John Clement Ruding, to make some provision for these illegitimate children, and for Sarah Braisby, the mother of his illegitimate daughter, and especially he requested his said brother to allow his children and Sarah Braisby to have a sum of 1,8001. for which Rogers Ruding had insured his life. This John Clement Ruding solemnly promised to do. After the death of Rogers Ruding, and on the 2nd of December, 1857, J. C. Ruding made his will whereby, after bequeathing 100l. to Sarah Braisby, and 2501. to Laura Braisby, he bequeathed all the residue of his property to the five legitimate children of Rogers Ruding. On the 6th of January, 1858, J. C. Ruding executed a settlement which occasioned the question in the case. The settlement contained a recital that J. C. Ruding, out of love and affection for his deceased brother, Rogers Ruding, and out of respect for his meNEW SERIES, 41.- CHANC. mory, was desirous to make some provision for Sarah Braisby and for Laura Braisby, the reputed daughter of the said Rogers Ruding deceased by the said Sarah Braisby, and for Richard Brougham Howe, a reputed son of the said Rogers Ruding, and then went on to declare tho trusts of a sum of 1,8001. Preference Stock of the Caledonian Railway Company, transferred by J. C. Ruding into the joint names of himself and of two trustees. These trusts were to stand possessed of the stock upon trust for such person or persons, &c., as the said J. C. Ruding should by deed or will appoint, and in default of appointment, as to onethird of the same stock upon trust for Sarah Braisby for life with remainder to Laura Braisby, and as to other one-third upon trust for Laura Braisby, and as to the remaining one-third upon trust for R. B. Howe, the petitioner, with gifts over in the event of Laura Braisby or R. B. Howe dying during infancy, in favour of the same five legitimate children of Rogers Ruding. In October, 1858, J. C. Ruding wroto to the person under whose charge the petitioner, R. B. Howe, was placed, a letter to the following effect-" I have got the settlement (i. e. the settlement last mentioned) from my lawyer, and find that when Howe is twenty-one he will receive 6001. Caledonian Railway Preference Stock, provided I do not in writing or by my will revoke the same which, if he conducts himself properly, I have not the least intention of doing." J. C. Ruding died in 1860 without altering or revoking his said will. The petitioner Howe had since attained his majority, and the stock having been transferred into Court under the Trustee Relief Act, he presented this petition praying that one-third might be transferred to him. Mr. Higgins and Mr. Law, for Sarah Braisby and Laura Braisby, further citing Moss v. Harter, 2 Sm. & Giff. 458, supported the petitioner, and further contended that the words of the settlement pointed to a future and not a past execution of the power. Mr. Ince, for Caroline Ruding, one of the legitimate children of Rogers Ruding, stated that she desired to abandon all claim. Mr. Glasse and Mr. Daniel Jones, for persons entitled under the will, declined to argue the case. Mr. Cole and Mr. Shebbeare, for other persons interested under the will (some of whom were out of the jurisdiction), contended that by the express provision of the Wills Act, the will of J. C. Ruding operated as an execution of the power reserved by the settlement. They cited The Wills Act, ss. 22, 23, 24; Stillman v. Weedon, 16 Sim. 26; 8. c. 18 Law J. Rep. (N.S.) Chanc. 46; Patch v. Shore, 2 Dr. & Sm. 589; s. c. 32 Law J. Rep. (N.S.) Chanc. 185; Hodsdon v. Dancer, 16 W. R. 1101 ; Bush v. Cowan, 32 Beav. 228; Scriven v. Sandom, 2 Jo. & H. 743. No reply was called for. MALINS, V.C.-The case is a very nice one and certainly not free from difficulty. I cannot receive parol evidence to shew the intention of the testator in executing his will, but in order to put a construction upon the instruments which he executed, I can look at all the surrounding circumstances to see as well as I can what was the intention, and put a construction upon the instruments. [His Honour then stated the facts, and called attention to the short period which intervened between the dates of the will and of the settlement. He continued as follows]-On the 6th of January, 1858, Mr. J. C. Ruding must be considered as knowing that he had made a will by which he gave all his property to the family. He knew, therefore, that if this will operated as an execution of the power (and I must attribute to him the knowledge that it would so operate), and he had died the day after the execution of the settlement, his will, which was executed five weeks before, would absolutely have taken away that very provision which he had made for the children of his brother. Could he possibly have intended that? Although it is perfectly true that as a general rule, under the words of the Act, a general bequest will pass all property over which a testator has a general power of appointment, yet there is nothing in the Wills Act which prevents the Court looking at the surrounding rounding circumstances. and seeing whether it is possible to say that the testator could intend his will to have that operation. Now knowing, as he did, that his will would pass all this property, am I not bound to decide that by his settlement he intended to take something out of the operation of his will? I am perfectly satisfied that he intended to reserve to himself a power over this property if he should not be satisfied with the conduct of the cestuis que trust; but I am also satisfied that it was his intention to execute the power either by deed or by a will which he might thereafter execute. The cases cited by Mr. Cole were all cases proceeding upon the general doctrine, which I agree with, i.e., that a general bequest, in the absence of such extraordinary circumstances as exist in this case, will operate as an execution. of a general power, though the instru ment creating the power be after the making of the will. But here I come to the conclusion that it was the intention, of the testator to take this out of his will, and in coming to this conclusion I think I go not one tittle further than ViceChancellor Stuart did in Moss v. Harter (ubi supra), and I am fortified by the. passage in Sugd. Pow. p. 306 (ed. 8) where Moss v. Harter (ubi supra) is commented upon. On the whole, I think I put the right interpretation upon the acts of the testator, looking at all the surrounding circumstances and the contents of the deed, in coming to the conclusion that what he intended when he reserved a general power of appointment was that it was to She The circumstances of the case were such that a revocable voluntary settlement of real estate would have effectuated the settlor's intentions of providing for her children, as well as an irrevocable one. The settlor, however, without sufficient professional assistance, executed an irrevocable settlement, retaining it in her own possession. received the rents of and managed the settled property; mortgaged a portion of it, and finally destroyed the settlement, believing it to have been revocable, and that the destruction of it was a revocation. She then devised the estates comprised in the settlement to trustees, upon trusts different from those of the settlement. On a bill filed after the death of the settlor to establish the settlement, and on a cross bill to set it aside, and carry out the trusts of the will: Held, that the settlement was invalid and must be set aside; but, as the evidence in support of the will was insufficient, no other decree. The object of the first of these suits was to establish a voluntary settlement of real estate in the county of York; and that of the second to set aside the settlement, and carry out the trusts of the will of the Bettlor. In 1852, Eliza Hall was seised in fee of the hereditaments and premises in question. She had seven children, namely, John Hall, Lewis Hall, Edwin Hall, Ruth Hall, Sophia Hall (now Sophia Green), Jesse Hall (since deceased) and Ellis Hall. She was desirous of providing for them; but not then wishing to make a will, she instructed Mr. George Humble, a solicitor of Bradford, to settle the property on herself and her children, the rents to be reserved to herself for life, then to be divided amongst her children until they were all of age, when the property was to be sold and the proceeds divided equally:-and the trustees of the settlement were to have power to sell the property at any time with her consent. By the settlement, dated the 24th of December, 1852, expressed to be made between Eliza Hall of the one part, and Lewis Hall and George Alderson of the other part, and executed by Eliza Hall, after reciting that she was desirous of settling and assuring the hereditaments and premises in question in the manner thereinafter mentioned, it was witnessed that for effectuating such desire, and for the nominal consideration therein mentioned, she thereby granted and conveyed the said hereditaments and premises to Lewis Hall and George Alderson in fee, upon trust to pay the rents and profits thereof to her for her life, for her sole and separate use (her receipts to be good discharges for the same), and from and after her decease to pay the same rents and profits to Sophia Hall, Jesse Hall, and Ellis Hall, or apply the same for or towards their maintenance or education during their respective minorities; and when the youngest should attain the age of twenty-one years (the said Eliza Hall being then dead), upon trust to sell and dispose of the said hereditaments and premises in manner therein mentioned; and then upon trust, after reimbursing themselves their costs and expenses out of the purchase money, to pay and divide the residue or surplus thereof unto and amongst the said John Hall, Lewis Hall, Edwin Hall, Ruth Hall, Sophia Hall, Jesse Hall and Ellis Hall, their executors and administrators, in equal shares and proportions as tenants in common. The settlement then contained a proviso giving the children and their issue such benefit of survivorship as was therein mentioned, a covenant for further assurance on the part of Eliza Hall, the usual trustees' receipt and indemnity clauses, and a power for the appointment of new trustees, but no other powers. A memorial of the settlement was duly registered at Wakefield on the 1st of January, 1853. In October, 1861, the settlor, without the knowledge of the trustees of the settlement or either of them, mortgaged a portion of the settled property to a Mrs. Matthews to secure the repayment of 2001. and interest. The mortgage was duly registered. It contained, however, no reference to the settlement, and the equity of redemption was reserved to the mortgagor herself. The settlor by her will, dated the 27th day of May, 1866, after directing that all her debts, funeral and testamentary expenses should be paid out of her personal estate, devised the premises therein described as "The Market Tavern," to Ellis Hall, for his life, and after his decease she devised the same premises unto and equally amongst all and every the child and children of her son, Ellis Hall, who should be living at her decease, and to the issue of such children as might be then dead, leaving issue; such issue taking the share only which their respective parents would have been entitled to had such parents been then living. She devised certain other premises therein described as the butcher's shop and slaughterhouse unto her son, Jesse Hall, his heirs and assigns for ever, if he should return to England and claim the same within twenty-one years then next ensuing; but in case her son, Jesse Hall, should not return to England and claim those premises within the said term of twenty-one years, then she devised the butcher's shop and slaughter-house unto and equally between and amongst her two sons, Edwin Hall and Ellis Hall, and to their respective heirs and assigns for ever as tenants in common, and not as joint tenants. She devised certain other premises therein described as "The Cricketer's Arms unto her son, Edwin Hall, his heirs and assigns for ever, subject, nevertheless, to the payment of the said mortgage debt (which had been reduced to the sum of 1307.), and all interest to become payable for the same:-And she devised the three other messuages therein described, with their appurtenances, and also all the residue of her real estate, unto Edwin Hall and Ellis Hall upon trust, amongst other things, to pay an annuity of 201. 168. per annum to Sophia Green for her separate use for her life, and an annuity of 77. 168. per annum to Ruth Hall for her life for her separate use; and subject to and charged with the said annuities and mortgage debt, she devised the said real estate upon the trusts therein mentioned, but which are not material to be here stated; and appointed her sons, Edwin Hall and Ellis Hall trustees and executors of her will. The testatrix made a codicil to her will, by which she substituted Samuel Lupton as a trustee instead of Edwin Hall. She died on the 30th of June, 1866, and her will and codicil were duly proved by the executors on the 18th of July, 1866. The testatrix had no other real estate than that which was comprised in the settlement; and referred to in her will. Shortly after her death Lewis Hall made diligent enquiries and searches for, and endeavoured to obtain possession of the settlement, in order to execute the trusts of it; and was informed that it had been destroyed by the settlor. On her death Ellis Hall entered into possession of the property devised to him for his life; Edwin Hall entered into the possession of that devised to him in fee, subject to the mortgage debt; and Edwin Hall and Ellis Hall entered into the receipt of the rents and profits of that devised to them in fee in the event of Jesse Hall not returning to England and claiming the same. Ellis Hall and Samuel Lupton duly entered into the possession of the residuary real estate of the testatrix, devised to them upon trust, as aforesaid; and paid out of the rents and profits thereof the annuities of 201. 16s. and 71. 16s. to Sophia Green and Ruth Hall respectively. |