Major v Major
| Jurisdiction | England & Wales |
| Judgment Date | 24 April 1854 |
| Date | 24 April 1854 |
| Court | High Court of Chancery |
English Reports Citation: 61 E.R. 727
HIGH COURT OF CHANCERY
Practice. Costs. Order of Payment of Costs.
[281] major v. major, April 24, 1854. Practice. Costs. Order of Payment of Costs. Costs of litigation in the Ecclesiastical Court for determining which is the testator's will, although ordered by the Ecclesiastical Court to be paid out of the estate, are postponed to the costs of administration in this Court. This case" coming on on further directions, a question arose whether certain costs incurred in a litigation in the Ecclesiastical Court for determining which of certain testamentary instruments should be admitted to probate, and which costs had been by the decree of the Ecclesiastical Court decreed to be paid out of the estate, should be paid in priority to or after the costs of administration in this Court. The litigation in the Ecclesiastical Court arose on the will of Mary Eobinson; an instrument of a subsequent date had been propounded as a codicil to her will, but was refused admission to probate. Certain costs, amounting to 625, had been incurred in support of this alleged codicil by Peter Knight and Thomas Knight, and the Ecclesiastical Court ordered those costs to be paid out of the testatrix's estate. Mr. Willcock and Mr. Greene, for the Plaintiff, the representative of the estate. The Messrs. Knight are not the legal representatives of Mary Robinson. They could not, if the assets had actually come to their hands, have legally retained their costs; the costs of the administration must be first paid. The rule is, that the costs necessarily incurred in realizing the fund take priority. It would be quite unreasonable to pay first the costs incurred by them in a litigation, the object of which on their part was to upset the very will on which this suit is founded. Mr. J. H. Palmer and W. H. Clarke, for other parties in the same interest. [282] Mr. Selwyn, for the Knights. I quite admit the general rule as stated on the other side, that when costs are necessarily incurred in realizing assets, they should be first paid. Now here there was a will and codicil. Whether both of those were to be admitted, or which was to be admitted, had to be decided by the Ecclesiastical Court. The Knights were necessary parties to the suit to determine which was to be admitted, this will or the codicil. It was necessary before the...
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