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rule of the Court, that where a party is made a coplaintiff, having no interest whatever in the object sought by the other co-plaintiff, and the bill can only be sustained in respect of that object, it cannot be sustained at all.
It is said, however, that the bill ought to have been sustained, because, in effect, it was a bill filed by two of the trustees against the third trustee, for the purpose of taking the accounts generally, and if there had been any objection for want of parties, it was the duty of the Court below to have directed the cause to stand over, and given leave to amend by adding parties. There can be no doubt that if the bill had been framed eo intuito, for the purpose of taking the accounts generally of the trust-estates, and it appeared that the cestuique trusts were not parties, such would have been the duty of the Court; but is impossible to read these proceedings without seeing that the thing really intended to be put in issue, was the right of Denton to a share in one commission, and the right of Gatfield to a share in the other, and the account which is asked generally in the prayer of the bill was merely ancillary to that personal purpose or interest which the two claimants had. But the very objection, for want of parties, was made by the answer, and it seems therefore, that the course which was taken in the management of the cause in the Court below, precludes the appellant from taking that objection now. The very form in which the bill of revivor was filed, shows that the plaintiffs themselves understood the object of their suit not to be for the purpose of taking the accounts on behalf of the cestuique trusts, since, if that had been the primary object, there would, strictly speaking, have been no abatement, because the suit
would have been sustainable by Denton alone, and no necessity, therefore, to file a bill of revivor by Denton, the representative of Gatfield, as by the petition of appeal is stated to have been done; that, therefore, was an admission that they were prosecuting the suit on behalf of that interest, which could only be properly represented by making Denton and the representatives of Gatfield co-plaintiffs in the bill of revivor,
It seems, therefore, to their Lordships, upon the whole, that the case has failed with respect to the principal point in establishing the right to the commissions claimed, and that it therefore fails with respect to the other point, and consequently we are of opinion that the decree made by the Chancellor in the Court below was perfectly right, and that this appeal must be dismissed with costs.
ON APPEAL FROM THE COURT OF CHANCERY
ON the 14th December 1805, Alexander Donaldson, Esq., 23 September late of the island of Jamaica, but then residing in England, made and executed his will, whereby he devised his estates in Jamaica to certain trustees therein named, including the appel
* For the notes of this and the succeeding cases the Reporter is indebted to his friends Mr. Burge and Mr. W. R. Rennalls.
Held, that though a
trustee individually abstain from acting in the trusts of a
will, yet if he is qualified, and is ready and willing to act when called upon by his co-trustee, he is entitled to a share of the commissions under the Jamaica Act, 24 Geo. 2, c. 19, s. 8.
lants and respondent, upon trust, amongst other things, to be carried on and cultivated in manner therein mentioned; and appointed them executors, with the usual powers for the appointment of new trustees in case of death, or refusal, or incapacity to act under the trusts.
The testator died shortly after the execution of his will, on his passage to Jamaica.
A suit was instituted in the Court of Chancery of Jamaica, soon after the testator's death, by two of the persons interested under his will, for the purpose of passing the executor's accounts and the cause was heard on the 28th May 1809, when a reference to the Master to take the usual accounts was made.
The Master, by his report of the 19th May 1810, after finding various sums due from the testator's estates to the appellants, as acting trustees, on account of their management, proceeded to state, that "Whereas he had been directed, by the order of reference made in the cause, to take and state an account of the actions and transactions, receipts, payments and disbursements of the Rev. John Campbell (the respondent), in, about, touching and concerning the estate, real and personal, of the said testator. He certified that the said John Campbell had not produced, or laid before him, any such account of such his actions and transactions, receipts, payments and disbursements, excepting certain accounts unto that, his report, annexed. The first of which, purporting to be an account incurred by the said John Campbell for qualifying as executor on the estate of the said testator, amounting to the sum of 91. 15s.; the second of which was an account of expenses incurred by him as a defendant in the cause, amounting to the sum of 1897. 98. 91d., which account had accrued subsequent to the period to which the accounts stated in his report in that cause extended; and the third of which, was an account of a demand claimed as due from the said testator's estate to the said John Campbell, as such executor and trustee under the said testator's will, for his share of the commissions, appearing by the draft of his report to be payable on the personal estate, and the rents and profits of the real estate of the said testator, during the period the said report purported to
comprize, amounting to the sum of 2,6317. 11s. 9d., which said accounts he had refused stating, not considering himself authorized by that honourable Court to take and state the same; and it did not appear to him that the said John Campbell had acted or interfered further in the affairs and concerns of the said testator."
To this report the respondent, John Campbell, on the 30th May 1810 excepted, on the ground of the disallowance of the above respective sums to him, as one of the trustees and qualified executors of the testator; and although evidence was tendered to the said Master of the said John Campbell having always been ready and willing to do whatever act might be requisite, in his capacity of executor and trustee, for the benefit of his testator's estate, and of his having signified such his readiness to his co-executors and co-trustees; and although evidence was also tendered to the said Master, that according to the usage and practice of that island, the said John Campbell was thereupon entitled to share in the commission, payable to the trustees and executors of the said testator upon their transactions with, and the management of, his real and personal estate.
On the 27th July 1811, the exception came on for argument before the Chancellor of Jamaica, when it was referred back to the Master to inquire, ascertain and report whether the said defendant, John Campbell, did offer to the other defendants in the cause, or either of them, to act or interfere in the management of the estate or concerns of the testator, and if so, at what time, and in what manner, and in what manner such offer was received or regarded by the said other defendants, or some, any, and which of them, and to enable the said Master to make the inquiries thereby directed, he was authorized to send for and examine any person or persons whomsoever he might consider necessary or proper, upon oath, or interrogatories, or otherwise.
The Master made his report to this further reference on the 10th September 1811, whereby he certified (among other things) that he had been attended by the defendants, Alexander Grant and John Campbell, and had taken their exa
minations, and the examination of Francis Ilfley, which he annexed thereto; and he found that certain letters, which he also annexed, had passed between the said John Campbell and Alexander Donaldson, relative to the said John Campbell's intention and final determination of qualifying as executor of the said testator; and he further found, by the examination of the said John Campbell, that in a conversation between him and the appellant, John Meek, (who was one of the defendants to the suit,) respecting his acting in the affairs of the estate of the said Alexander Donaldson, the said John Meek recommended the said John Campbell to visit the estates of the said testator; but the said John Campbell never did. And it did not appear, by the examinations of the said John Campbell and Alexander Grant, that he, the said John Campbell, had ever acted or interfered in the management of the affairs and concerns of his testator, Alexander Donaldson, excepting his paying his attorney's bill for qualifying as an executor, and his solicitor's bill as a defendant in the cause; nor did it appear from the said examination that the said John Campbell was ever prevented or hindered from acting in the testator's affairs and concerns by the other defendants in the
The following were the three letters referred to and annexed as part of the above report:
"After having given the subject very mature consideration, and also consulted friends of more experience in these matters than myself, I have come to a determination of immediately qualifying as one of Mr. Donaldson's executors.
"As I shall not, except positively required to do so, ever interfere in any shape or degree whatever in the direction or management of the properties, or of his affairs in general, no injury or detriment respecting them can possibly arise from my taking this step.
"I shall just further observe, that I cannot but feel myself perfectly justified in this measure, when I advert to the conduct