Jane Carmichael, W. Bourne, and E. his Wife; G. Gibbs, and J. his Wife; Hugh Carmichael, and. J. Carmichael, Executors, etc.; Z. Carmichael, said Hugh Carmichael, and James Carmichael, - Appellants; Thomas Willson, - Respondent. - Et e Contra

JurisdictionEngland & Wales
Judgment Date01 January 1830
Date01 January 1830
CourtHigh Court of Chancery

English Reports Citation: 5 E.R. 52

COURT OF CHANCERY.

Jane Carmichael, W. Bourne, and E. his Wife
G. Gibbs, and J. his Wife
Hugh Carmichael, and. J. Carmichael, Executors
etc.
Z. Carmichael, said Hugh Carmichael, and James Carmichael
-Appellants
Thomas Willson,-Respondent.-Et e Contra

Mews' Dig. vi. 1291, 1373, 1687; vii. 1430, 1439; xiv. 1029. S. C. 2 Dow & C1. 51; and, in Chancery, 3 Moll. 79. As to charging interest against executors, see In re Barclay, [1899] 1 Ch. 674. Carmichael v. Willson was approved on point as to accumulation of balances (3 Moll. 79) in Edwards v. Grove, 1860, 2 De G. F. & J. 221; and see In re Wise, [1896] 1 Ch, 281.

[145] IKELAND. COURT OF CHANCERY. jane caemichael, W. bourne, and E. his Wife; G-. gibbs, and J. his wife ; hugh carmichael, and. J. carmichael, Executors, etc.; Z. carmichael, said hugh carmichael, and james carmichael,-Appellants; thomas willson,-Respondent.-M e Contra [1830]. [Mews' Dig. vi. 1291, 1373, 1687; vii. 1430, 1439 ; xiv. 1029. S.C. 2 Dow & 01. 51 ; and, in Chancery, 3 Moll. 79. As to charging interest against executors, see In re Barclay, [1899] 1 Ch. 674. Carmichael v. Willson was approved on point as to accumulation of balances (3 Moll. 79) in Edwards v. Grove, 1860, 2 De G. F. & J. 221 ; and see In re Wise, [1896] 1 Ch, 281.] W. a solicitor having been appointed and acting as an executor in the administration of the affairs of the estate, brought and defended many suits, in which he employed himself as the Attorney. Upon a bill filed by the residuary legatees against the executor, it was referred to the Master, to inquire whether any money due to the estate had been lost by the negligence of W.; and whether the suits had been properly commenced, prosecuted, and defended; and that he should tax the costs for business done by W., as attorney in those suits, without prejudice to the question whether W., being an executor, was as an attorney to be allowed such costs, except so far as he had disbursed money. Upon this decree the Master reported, that some of the suits had been properly commenced, but negligently conducted, so that the recovery of the property in question in those suits had been probably endangered, and he made no allowance of costs to the executor, but submitted to the Court whether the claim for costs should not be suspended until the debts should be recovered, etc. Exceptions taken to this part of the report were by the decree, on farther directions, overruled, and on appeal this part of the decree was affirmed. By the decree upon further directions, it was also ordered that interest should be charged upon all balances in the hands of the executor, at the end of every year, and that interest should be charged against the residuary legatees upon all advances made to them by the executor from the time of the advances. Upon appeal, this order was varied, by declaring that the [146] Master should be directed, in taking the accounts, to make a rest and state the balance at the end of each year, and to charge the executor with interest on such balance, and to apply such interest, as might be so found due from him in each year, in the first place towards his future payments, before any application should be made of the balance of principal money in his hands. Whether an executor being a solicitor, and acting as such in the administration of the estate, by bringing or defending suits or otherwise, is entitled 52 CARMICHAEL V. WILLSON [1830] IV BLIGH N. S. to an allowance for costs, in respect of his professional labour, beyond costs out of pocket, and if so whether as between solicitor and client.-Qucere. Andrew Carmichael, by his will, bearing date the 24th day of April, 1794, gave, devised and bequeathed, the sum of five shillings to Elizabeth Crofton, otherwise Carmichael; and all the residue of his property he devised and bequeathed, equally to be divided, share and share alike, among his widow and children; he appointed the Respondent, who had married his daughter Margaret, sole executor. The testator died, on the 4th of May, 1794, without altering or revoking his will. The testator was a practising attorney, and clerk of the crown and peace for various counties in Ireland, and almost the whole of his assets, consisted of bonds, mortgages and judgment debts ; money having been lent out by the testator on those securities to one hundred and fifty persons. The Respondent, who served his time as clerk to the testator, and was in his employment conducting his business at the time of his death, prosecuted, in his character of executor and as attorney, sixty suits at law and fifteen suits in equity, for the recovery of the mortgage and judgment debts due to the testator. He also de-[147]-fended eleven suits in equity and three suits at law, commenced against him as executor. The Appellants, who were legatees and representatives of legatees, on the 17th of October, 1812, filed their bill in the Court of Chancery against the Respondent, charging mismanagement and misapplication of the assets; and praying an account of the personal estate and effects of the testator received by the Respondent, or which without his wilful default might have been received; and that in taking the accounts, yearly rests should be made and interest charged on the balances; and that the Respondent might be ordered to tax his costs against the estate of the testator, in presence of Plaiiitiff's solicitor, and be allowed only such costs as were necessarily and properly incurred, and for the benefit of the testator's estate; and that the usual accounts might be taken. The Respondent filed his answer to the bill, on the 5th of May, 1813, with schedules, giving an account of the receipt and expenditure of the assets which had come to his hands. The cause was heard on the 14th of April, 1818, when it was decreed, that so much of the Appellant's bill as related to the offices in the pleadings mentioned should...

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