Burge v Brutton
| Jurisdiction | England & Wales |
| Judgment Date | 28 February 1843 |
| Date | 28 February 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 153
HIGH COURT OF CHANCERY
S. C. 12 L. J. Ch. 368; 7 Jur. 988. See In re Rhoades [1899], 2 Q. B. 355.
[373] bukge v. brutton. Feb. 20, 27, 28, 1843. [S. C. 12 L. J. Ch. 368; 7 Jur. 988. See In re Ehoades [1899], 2 Q. B. 355.] An executor who acts as solicitor in a cause in which he is a party in his representative character, though he is only allowed personally, as against the estate, such costs as he actually pays: Held entitled to be allowed, as against the estate, that proportion of the whole costs which his town agent in the cause was entitled to receive. The representative of a deceased executor, in accounting for the executor's receipts of the trust estate: Held not to be entitled, by way of discharge, to the amount of a debt owing to the executor from his testator, without evidence of retainer of the debt by the executor in his lifetime: the amount can only be claimed as a debt against the estate. An executor is not entitled to be allowed the costs of a suit in respect of the estate, prosecuted by a solicitor whom he did not employ : the solicitor himself is the party to apply for costs, as a lien on the fund which he has recovered. Eleanor Cornett, by her will, made in 1814, appointed John Brutton and another her executors. Brutton was in partnership with Mr. H. M. Ford, as solicitor, at Exeter, and they were the solicitors of the testatrix. The testatrix died in 1816, and her will was proved by Brutton alone, the other executor having renounced. At the time of the death of the testatrix a suit for redemption (Chaplin v. Cornett) was pending against her; and, after her death, Brutton, as her personal representative, was made a party to the suit by revivor. Brutton & Ford continued to act as solicitors in the defence of the suit, and in the other business of the testatrix's estate, until 1818, when Brutton became, from illness, incapable of transacting business. In 1820 the family of Brutton entered into an arrangement with Ford by which the latter became the purchaser of Brutton's share in the partnership business. Ford thenceforward acted as solicitor for the Defendant in the suit. Brutton died in 1827, 154 BURGE V. BRUTTQN 2 HARE, 374. and administration, with his will annexed, was granted to the Defendant, Margaret Brutton, his daughter. Margaret Brutton then entered into possession of the property of the testatrix, including that which was the subject of the redemption suit, and she was made a party to that suit by supplement. The present bill was filed in 1832 by one of the residuary legatees, who was also administrator de bonis non of the testatrix, for an account of her estate received by Brutton and by the Defendant. The accounts were de-[374]-ereed to be taken. The Defendant claimed, by way of discharge, the amount of two bills of costs:-1st. The bill of Defendant Margaret Brutton's solicitor against the representatives of the testatrix, from 1808 to 1832, 72, Is. 6d. 2d. The bill of Defendant's solicitor in the suits Chaplin v. Cornett; Same v. Brutton; Same v. M. Brutton, 341, 6s. lid. The Master disallowed both of these bills of costs. The Defendant excepted to the report. The exceptions depended on the following questions:-1st. Whether the Master ought not to have allowed so much of the bills of costs as was due from the testatrix to Brutton & Ford, her solicitors, at the time of her death, which amounted to about 30. 2d. Admitting that Brutton, being the executor, could not charge the testatrix's estate with costs to himself, Robinson v. Pett (3 P, Wms. 249; and see 2 Atk. 60), Marshall v. Holloway (2 Swans. 452, 453), Carmichael v. Wilson (2 Moll. 350; S. C. 4 Bligh (N. S.), 146), New v. Jones (9 Bythewood Convey, by Jarman, p. 338), Moore v. Frowd (3 Myl. & Cr. 45), or to himself and his partner, Ford, Collins v. Carey (2 Beav. 128); yet, inasmuch as being solicitors practising in the country, they were obliged to employ a town agent, whether the Master ought not, from the death of the testatrix until January 1821, when the agreement,, dissolving the partnership between Brutton & Ford, took effect, to have allowed, besides other sums actually paid out of pocket, a moiety of the costs in the suits, being the proportion which it is the custom for the town agent to receive. 3d. Whether the Master ought not, after the dissolution of partnership between Brutton & Ford, to have [375] allowed so much of the Defendant's claim as consisted of the bills of costs of Mr. Ford alone. Mr. Simpkinson and Mr. Prior supported the exceptions. Mr. Temple, Mr. Lovat and Mr. Walpole, in support of the Master's report. On the first point, the costs incurred in the testatrix's lifetime, the Plaintiff contended that, if the Defendant had any claim on this ground, it ought to have been made in her capacity as executrix of Brutton, or by Ford, as a debt due from the testatrix's estate and not by way of discharge: that it could not be claimed in discharge unless it had been retained by Brutton in his lifetime, of which retainer there was no evidence. The Defendant contended that such retainer ought to be presumed. In addition to the cases mentioned above the following authorities were cited -.-Layfield v. Layfield (7 Sim. 172), Padget v. Priest (2 T. K. 97), Curtis v. Vernm (3 3YK. 587), Loomesv. Stothard (1 Sim. & St. 458), Player v. Foxhall (1 Euss. 538), Spicer v. James (2 Myl. & K. 387), Plumer v. Marchant.(I) the VlGE-CHANCBLLOR [Sir James Wigram]. A claim was made by the Defendant, Margaret Brutton, to have an allowance made to her in respect of certain costs which she insists had either been paid by, or by the estate of, her intestate, Brutton, or which that estate was liable to pay. It does not distinctly appear [376] whether there had been any payment or whether it was merely a question of liability. These costs extended over many years, and have been considered with reference to the circumstances existing during three distinct periods. The first period was in the lifetime of the testatrix. Brutton was a partner with Ford; and they, in the lifetime of the testatrix, acted as her solicitors, and a sum of 30 or thereabouts became due from her to the two. The Master disallowed this claim. The argument on behalf of Margaret Brutton was that, inasmuch as Brutton was the executor of the testatrix, he had a right to retain this debt, and therefore, in the way of retainer, it ought to have been allowed in discharge of his estate. Now it appeared, in fact it was the case of Margaret Brutton to say, that from January 1821 the partnership (1) 3 Burr. 1380; Williams on Executors, vol. 2, p. 835, et seq. 3d ed. 2 HARE,377.! BTJE0E/ W. BRUTTON 155 between Brutton & Ford was. dissolved, in consequence of Brutton, owing to a paralytic attack, haying become totally incapable of business. The affidavits on that point are very strong. The business was afterwards carried on by Ford alone. It does not appear that (Brutton had ever exercised his jight of retainer. I do not mean to question the proposition that one of two partners to whom a debt is due, being made an. executor, might retain that debt. The same reason seems to apply in that case as to a case of Ms being a sole creditor. In point of fact, however, there was no retainer nor anything done that shewed an intention to retain. In 1821 this arrangement took place: in 1827 Mr. Brutton died, and, before any right of retainer had been thought of, the legal interest in the debt had wholly devolved on Ford alone, and, therefore, the reason which would give the right of retainer had ceased to exist. It appears to me that that alone is sufficient to dispose of the case; but I desired to look at the affidavits .to see whether the equitable interest had not also passed, for, if it had, that would be an addi-[377]-tional consideration for holding that the right of retainer was extinguished. It appeared to me impossible to read the affidavits without understanding from them that Mr. Ford claimed to be absolutely entitled to all the profits of the business up to the time of the arrangement of the business in 1821, including the debt in question. [His Honour read the affidavits with reference to the illness and incapacity of Brutton, and the arrangement with his family and friends, by which Ford purchased all his interest in the partnership, as well in respect of the business which had been done, as of the goodwill] I think, therefore, that, in equity as well as at law, Brutton had ceased to have any interest in the debt; and, there having been no; retainer in fact, nor any evidence of intention to retain, that the Master's conclusion was right with respect to the costs comprised in the first period. ; The second period includes the time between the death of the testatrix and the dissolution of the partnership of Brutton & Ford; and...
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