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of so many others of very highly respectable character in cases
“I ever remain, dear Sir,
“ John Campbell.”
II. “Dear Sir,
“ Kingston, 2 Nov. 1807. “I was yesterday favoured with your note, intimating your determination of qualifying as one of Mr. Donaldson's executors; you are certainly the best judge of your own wishes; but if it should not be inconvenient to you, I would like to have a few minutes' conversation with you on the subject, and show you some papers previous to your carrying your resolution into effect; and if you are coming to town in the morning, I will thank you to give me a call; if not, I will wait on you when I return from Spanish Town on Friday.
“ Believe me, my dear Sir, yours sincerely, “To the Rev. John Campbell.
“ Alexander Grant."
III. “Dear Sir, "I beg to acquaint you that I have now qualified as one of Mr. Donaldson's executors. I again repeat to you, that I shall certainly not in anywise interfere in the management of the concerns of his different properties, any further than I may be called upon to do so by any of the gentlemen, who at present take the entire management, or by such circumstances as require my interference. Be assured that I remain, my dear Sir, with great esteem, “Your very obedient humble servant,
“ John Campbell.” Alexander Grant, esq. “Half-way Tree, 22d Jan. 1808."
On the 27th January 1812, the matter came on for argument on the further report and examinations, when the Chancellor declared it to be his opinion that the said John Campbell, as one of the trustees and executors named in the will
of the said testator, Alexander Donaldson, was well entitled to the usual commissions allowed to trustees and executors, from the 22d January 1808, and therefore he allowed the said exception in part, and he ordered and directed that the Master should take back his report, and take and state therein an account of the actions and transactions, receipts, payments and disbursements of the said defendant, as such trustee and executor in and about his, testator's estate, and therein to allow the said John Campbell, equally with the said Alexander Grant, John Meek and Joseph Green, as trustees and executors of the said Alexander Donaldson, to share a proportion of commissions arising from the rents, profits and produce of the estate of the said testator, Alexander Donaldson, from the 22d day of January 1808, to the end of the space of time up to which such commissions were calculated and reported in favour of the said Alexander Grant, John Meek and Joseph Green, the said other trustees and executors in the said report, and that the said Master should duly alter and amend his said report in such respect; and it was further ordered that the said Alexander Grant, John Meek and Joseph Green, should pay to the defendant John Campbell, or his lawful representative or representatives, the full costs out of purse of the said defendant, expended and incurred by him in consequence of his excepting to the said report, and the taking of the aforesaid examinations, to be taxed by the said Master.
From this order the appellants prayed and obtained leave to appeal to his Majesty in Council, and submitted that the same ought to be reversed, for the following, among other reasons :
1. That the claim of commission in this case arose under the 8th section of the Act of 24 Geo. 2, which was for the purpose of reducing and limiting to a certain sum the commission which agents, trustees and executors, had theretofore been accustomed to charge upon the footing of a quantum meruit. The act therefore specifically pointed out that the commission to be charged by the persons in that character should be according to their usual and respective receipts, payments, transactions, management and disposals; in a case, therefore, where
no separate receipts, payments, transactions, management or disposals by the respondent, nor any receipt or payment, transaction, management or disposal by him jointly with the other executors and trustees, there could be no title to any commission.
2. That the principle upon which the colonial law (differing in this respect from the law in the mother country) allowed trustees and executors to charge a commission, by way of compensation for their time and trouble, was to secure the diligence of active, and the personal responsibility of solvent trustees and executors, in the administration and protection of the property committed to them. That the conduct of the respondent tended to defeat both these purposes, since by his own examination he not only admitted that he never took any active step for the benefit of the property, but he in effect avowed, that he purposely abstained from acting, that he might avoid giving offence to the other trustees and executors: on this head, therefore, he could have no claim. On the other point it was clear that he had so conducted himself as to avoid all possible liability to the testator's estate, if his coexecutors and trustees had wasted and misapplied the whole property, and had become insolvent.
It was also stated, that it was apprehended that the opinion of the Chancellor must have been influenced by the supposed usage of the island, upon precedents adduced, showing that the courts did not regard the proportion of activity or of actual receipt, &c., by the several trustees or executors, but divided the legal commission amongst them equally ; it was, however, submitted, that cases of that nature did not apply as precedents to a case in which an individual trustee and executor intentionally abstains from acting, and, in fact, does not act in the execution of a trust.
The respondent, on the other hand, submitted that the order of the Court below ought to be affirmed for the follow
other reasons : 1. Because, by the Act of the Legislature of Jamaica for regulating the commissions of trustees and executors (24 Geo. 2, c. 19, s. 8), no distinction is made between the case of an
executor or trustee actually administering, and that of one who is qualified and ready to administer; nor had any such distinction been recognized by usage.
2. Because it did not appear that the respondent ever declined acting as trustee or executor, or was unwilling to take his share of responsibility or trouble as such, though he was desirous of being guided by the judgment of the appellants, as to the time and mode of his interference, for the benefit of the testator's estate.
3. Because the respondent, by the appointment of the testator, and by his proof of the will, being as well entitled as any of the appellants to all the privileges of an executor and trustee, it can be no just ground to deprive him of them ; that the convenience of the appellant, and, in their opinion, the advantage of the trust, were better consulted by their exclusive administration.
On the 23d September 1815 the appeal was heard before the Privy Council, when their Lordships agreed to recommend to His Majesty to affirm the order of the Court of Chancery in Jamaica of 27th day of January 1812, which was accordingly affirmed by an Order in Council on the 19th of October 1815.
ON APPEAL FROM THE COURT OF CHANCERY
Between SARAH HENCKELL, Widow ; DORO
THE OWEN, Widow; MARIANNE WARREN, | Appellants,
. John White, Esq., deceased In the month of July 1823 the appellants filed their Bill of
17 May Complaint in the Court of Chancery in Jamaica, against the respondent and against Richard Ryland, Charles Nicholas The immo
diate objeot Palmer and John Henry Grant, stating the will of Thomas of the JaWarren, whereby he devised, among other real and personal maica Act, estates, a certain plantation or sugar-work, called Lacoria, in c. 19, 6. 8, the said island, to Margaret Warren, his widow, Thomas Ful- was to procap lerton Warren, his son, John White and Richard Ryland, in the charges, trust to sell, and, after payment of his legacies, &c., to invest made by exthe produce thereof in the public funds, and pay the interest ecutors and and dividends of one moiety thereof to his wife for her life, and the managethe interest and dividends of the other moiety thereof to be ment of es
that equally divided between his daughters, the appellants, and his island. No grandson, Edward Francis Henckell; and after his said wife's is given out decease, the whole, if any of his remaining estate should be of the prounsold, the same was to be sold, one-third part whereof he the sale of an directed to be conveyed to his son, and the remainder to his estate, but
only on refour daughters, the appellants, and grandson, or such of mittances them as should be then living.
and though The testator died shortly after the making his will, which the equity of was proved in Jamaica by Thomas Fullerton Warren, his son, may include Margaret Warren, his widow, and John White, three of the such com.
mission, it executors named therein. Eduard Francis Henckell, the testator's grandson, and upon i sale
made and completed in the island, and not in this country.