COURTNEY v RUMLEY. [v C. Court.]

• Jurisdiction: Ireland
• Judgment Date: 07 December 1871
• Date: 07 December 1871
• Court: Vice-Chancellor's Court (Ireland)

V. C. Court.

COURTNEY

and

RUMLEY.

Court-ney v. Parker 16 Ir. Ch. R. 320.

Archbold v. ScullyENR 9 H. L. C. 330.

Peers v. CeeleyENR 15 Beav. 209.

Leedham v. ChawnerENR 4 K. & J. 458.

O'Ferrall v. O'Ferrall Ll. & G. t. P. 79.

Trustees' Expenses — Costs of Unsuccessful — Bona fides — Absence of Miscounduct or Negligence.

VoL. VI.] EQUITY SERIES. 99 COURTNEY v. RUMLEY. Trustees' Expenses-Costs of Unsuccessful Litigation-Bona fides-Absence Misconduct or Negligence. 1. A trustee is entitled to be reimbursed out of the trust property all the charges and expenses incurred in the execution of the trust, and in this the Court will always deal liberally with a trustee acting bond fide. 2. Where the costs or expenses claimed have been incurred through the misconduct or negligence of the trustee, he will not be allowed them ; but the fact of his having been unsuccessful in litigation, either as Plaintiff or DefendÂÂÂant, will not, in the absence of misconduct, disentitle him to be reimbursed his costs. BILL filed 8th June, 1870, for the purpose of having an account taken of the amount due to Plaintiff for certain fines, interest, and purchase-money advanced by him, and for interest thereon, and for the. costs of obtaining certain fee-farm grants ; and that the PlainÂÂÂtiff might be declared entitled to three-fifths of the said sums as a salvage lien and incumbranee upon the Defendants' three-fifths of the premises in the bill mentioned, with the usual relief in default of payment, &c. The facts of the case, which were very complicated, are fully stated in his Honor's judgment. The circumstances of the litigaÂÂÂtion, the costs of which formed a principal subject of discussion at the present hearing, also appear at length in the report of CourtÂÂÂney v. Parker (1), which was an earlier branch of the present proÂÂÂceedings. Messrs. Palles, Q. C., Leech, Q. C., and T. P. Law, for the Plaintiff, cited, as to the effect of the Statute of Limitations upon the relation of landlord and tenant in connexion with renewable leases, Archbold v. Scully (2). Messrs. P. White, Q. C., and Robertson, for the Defendant, cited, as to trustees not being entitled to the costs of abortive pro (1) 16 Ir. Ch. R. 320. (2) 9 H. L. C. 330. 100 THE IRISH REPORTS. [I. R, V, C. Court. ceedings or unsuccessful litigation, Peers v. Ceeley (1), and LeedÂÂÂ1871. ham v. Chawner (2) ; and as to the non-obligation of a tenant for COURTNEY life to renew a lease under a toties quoties covenant, O'Ferrall v. O'Ferrall (3). THE VICE-CHANCELLOR : The bill in this cause has been filed for the purpose of raising out of the Defendants' shares of the lands there mentioned their proportionate part of certain sums paid by the Plaintiff for the purpose of obtaining grants in perpetuity of these lands, and of certain costs paid by the Plaintiff in connexion with the obtaining of such grants. The lands were portion of the estate of the archiÂÂÂepiscopal see of Dublin, and were held by leases for years customÂÂÂarily renewable. A person named William Peck was, in his lifeÂÂÂtime, entitled to sub-interests, carved, but not directly, out of the head lease, in three separate lots of these lands, under three distinct sub-leases, each having a toties quoties covenant for renewal. These lots have been called by the names of the persons under whom he so held them-Byrne's lot, Rossiter's lot, and Smyth's lot. Peck, by his will, and a codicil thereto, both made in 1842, in which year he also died, appointed James Duggan and Mary Maguire his executor and executrix, both of whom proved the will. Peck thereby bequeathed his interests in these premises with others, to his executor, Duggan, upon certain trusts under which, in the events that have happened, three-fifths of the rents became payable to the Defendants, and two-fifths to persons named O'Connor. Duggan survived Mary Maguire, and by his will appointed the Plaintiff and Mary Anne Duggan, and John Classon, his executors. Duggan died in 1849, and his will was proved by the Plaintiff and Classon. The Plaintiff has survived his co-executors, and is the sole personal representative of Duggan, and therefore of the first testator, Peek, and as such he became possessed of the legal estate of Peek in these premises, and the person to obtain renewals of the leases, in trust for the Defendants and the O'Connors. IrreÂÂÂgularities had taken place in the lifetime of Peck, and. also after his death, in taking out renewals of his sub-leases. No question now arises as to the lot called Byrne's lot, of which a grant in perÂÂÂpetuity was obtained without litigation, the sum paid for this grant being £48 16s. 8d. The plot called Rossiter's plot was, in the year 1864, held by minors of that name, who were wards of this Court, and were the immediate reversioners upon Peck's subÂÂÂlease, and the parties to renew or grant a perpetuity to his repreÂÂÂsentatives. A sum of £79 5s. 3d. was paid to them for the purÂÂÂchase of the perpetuity fines, and interest on fines, to three-fifths of which the Defendants do not dispute the liability of their shares of these premises. The sum of £11 2s. lid. was paid by the Plaintiff to the solicitor of these minors, for the costs of proceedings in the minor matter connected with the obtaining of a grant of the perpetuity, three-fifths of which, and also of the sum of £13 6s. 7d., being the Plaintiff's own costs of these proceedings, the Plaintiff claims to charge against the Defendants' shares, but the Defendants dispute their liability to these sums. The principal contention is as to the third lot, called Smyth's lot, in reference to which much litigation ensued, and the costs claimed are large. It appears that the Plaintiff had become an incumbrancer on the O'Connors' two-fifths of these three lots, and instituted proÂÂÂceedings as such in the Landed Estates Court for a sale of them in the year 1859. Their shares were subsequently sold by that Court, and the Plaintiff purchased them, and obtained a conveyÂÂÂance. These three lots had been leased many years before by Peck, or the persons under whom he devised, to a person named Ennis, with a toties quoties covenant for renewal ; and his representatives, in the year 1851, assigned this sub-interest to Parker. But Ennis had also, in the year 1812, acquired the interest in Smyth's plot immediately above the interest of Peck, and thus was both landlord and tenant to Peck. The last renewal of this lot was granted by Smyth to Peck in the year 1806, at a rent of £5. Ennis's repreÂÂÂsentative assigned this superior interest to Parker at the same time as the sub-interest in all three lots-namely, by deed of the 12th September, 1851. The title of these parties thus became very complicated, and, to add to the complication, the boundaries of these lots became so confused that it was almost, if not altogether, V. C. Court. impossible to ascertain them. From some unexplained cause, no 1871. rent was, so far as has been ascertained...