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practice prevailing in the West Indies, by which commissions for the care and management of plantation property have been uniformly recognized. The 8th section of the Act regulates their amount, and enacts, " that from and after the first of January 1752, all commissions of attornies, or agents of persons absent from this island, trustees, guardians, executors and administrators, arising from their several and respective receipts, payments, transactions, management and disposals (after that time,) of the rents, profits, produce and increase of any of the estates and interests for which they were or shall be respectively concerned, shall be and the same are hereby reduced to 61. per cent., including the factorage commission for supplies made in this island, for such real estates for which such persons shall or may be concerned, and that from and after the said Ist day of January the commissions for receiving and remitting of monies, lent or remaining at interest in this island, and the interest of such monies shall be, and the same are hereby declared to be reduced to 5l. per centum; to wit, 21. 10s. for receiving, and 21. 10s. for remitting, and no more.”

No apportionment is made in respect of the activity of the trustee or executor, but the commission is solely receivable by him as trustee; and it is not essential that he even act as such if he has been duly appointed, provided he is ready and willing to act if called upon. The Court, both in Jamaica and here, have uniformly proceeded upon this principle in construing the Act. In Grant v. Campbell(a), decided by Sir William Grant upon appeal to the Privy Council, this principle was recognized and acted on: the question arose out of the

(a) Post, note, p43

1836.

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DENTON

v. Davy.

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trust estates of Alexander Donaldson; proceedings
were taken in the Court of Chancery in Jamaica,
which ultimately decided in favour of the claim; that
decision was appealed from, and came on before the
Privy Council in 1815; Sir William Grant presided,
and though he had previously, when at the bar, given
an opinion as to the impropriety of Mr. Campbell, who
was a clergyman, acting as such trustee, yet, when
the case came before him as Judge, he decided in
favour of the claim. So in the case of the executors
of Mr. Tharp, the representatives of Mr. Simon Taylor
recovered a moiety of the commissions, though his
acts consisted only in having visited the estate occa-
sionally. The respondents say that Denton had no
right to share the commissions with Davy, because
the latter had the sole management. That is not the
fact, but if it were, it is not necessary to give evidence
of distinct acts of management: the appointment of
trustee is sufficient in itself to entitle the party to re-
cover the commission. Denton was a joint trustee
and manager under the will of Palmer; his claim for
management is confined to the period of his residence
on the island; the ground of allowing such claim is
the liability of the trustee to every creditor of the
estate. The respondents, by their answer, insist that
Denton did not qualify; if, by qualifying, they mean
proving the will, such proof was not necessary. As a
trustee he was entitled of course, unless he disclaimed
the trust, which it is not pretended he ever did: no
letters testamentary were necessary; but if such were, he
proved the will before he quitted the island. He was
devisee for sale, with power to substitute by attorney;
his attorney could not act in his absence without such
proof, and therefore it became necessary, when he

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1836.

DENTON

Davy.

was about to quit the island, but he himself was fully qualified without. The nature of the claim is not affected by Denton and Gatfield being resident in England, where the sale took place; they both concurred and acted therein, though they executed the purchase-deeds by attorney; the purchaser cannot object to the claim on that ground. When the sale is to be effected, Denton being out of the island, Davy writes to him and Gatfield, to apprize them of the intended sale, and to request his and Gatfield's sanction: the correspondence which took place is in evidence, and the trustees in England give their consent to the sale, and ultimately send out a power of attorney to enable Davy to complete it; the sale is absolutely delayed till the arrival of the powers, and could not be completed without it. The trusts declared by the will are recited both in the mortgage-deed and defeazance. By the latter the legal estate is expressly vested in Denton, in whose name all real actions must be brought. As no sale could take place without the concurrence of all the trustees, they are all equally entitled to the commission on the purchasemoney; part of the prayer of the bill in the Court below, was to ascertain how much of the purchasemoney had been paid. Upon the sale of an estate the construction given to the clause in 21 Geo. 2, has been that a debt arises upon the estate in respect of the commission, and therefore, though no money actually pass, this claim has always been recognized by the Jamaica Courts. The arrangement for deducting the commission from the purchase-money was adopted instead of taking the benefit of the exchanges, as, between the debtor and the estate, he is bound to bear all loss, in putting the purchase-money into English

1836.

DENTON

Davy,

currency. The executor is entitled to 61. per cent. on the remission of all sums from the island. Here there are two distinct demands, one on account of the management, the other on account of the sale of the property ; in both cases the parties claim as trustees. Denton has an interest in both; but Gatfield claims only for the latter. The personal interference of the trustee is not essential to the claim for commission; the general right to such is admitted on the other side.

The bill is properly framed for the objects of the suit; the case stated shows the relief to be in equity, and not at law. It is not multifarious, the questions raised being necessary for the object of the suit, which is the taking of the accounts. The objection, for want of parties, was not taken in the Courts below.

Pemberton, K, C., and Rennalls for the Respon

dents, The only question here is as to the commissions. The question of account was never raised in the Court below, and is contrary to the manifest intention of the parties, and the tenor of the bill : the bill is filed against the parties alleged to retain the purchasemoney,

and not against the estate. If the law is as stated on the other side, it is contrary to all sense and

A man dies leaving three executors, two of whom act, and the third neither qualifies or acts until four years afterwards, when about to quit the island. Suppose the other executors had become insolvent, what right would the creditors of the estate have to call on Denton to account? he would say, I never qualified, I never acted; yet now he comes ten years after his appointment as a trustee, and claims commission for management and sale of the pro

reason.

1836.

DENTON

v. Davy.

perty; he cannot have a right on the ground of responsibility, having incurred none. We dispute the law stated on the other side; it is said, though he goes away from the island, yet he is responsible; how is that, does he leave his responsibility behind him? I agree to the position that the right to commissions does not depend on the degree of interference, if he does interfere, and is ready and willing to act, and has taken the trust upon himself. Chambers v. Goldwin (a); Forrest v. Elwes(6). Some erroneous notion exists respecting the opinion of Sir William Grant, in Grant v. Campbell; it cannot be an authority for the position insisted on.

Mr. Campbell was entitled, because he had incurred the responsibility and was ready to act; that appears from one of his letters. Tharp's case, and Ross v. Lewis, decided in the island, are the same; in both, the executors had qualified; but the point has been decided here by the late Master of the Rolls, in Henchell v. Daly (c). Has Denton received or remitted money? that is the question; he has done neither. How could the appellants file a bill for an account which they do not want? they have no right to any account of the estates, for they are closed, and are admitted to be so. The bill is not filed for the benefit of the cestuique trusts, they are not parties; it is filed in truth only to obtain costs out of the estate. If the objection, for want of parties, had been taken below, it would have been preliminary ; the ground on which the bill was dismissed, the cause having been fully heard, renders the fact of such an objection having been made impossible. The universal course of proceeding for commissions in the island

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