ORMSBY v GOOD. [Probate.]

• Jurisdiction: Ireland
• Judgment Date: 23 June 1894
• Court: Chancery Division (Ireland)
• Docket Number: (1894. No. 22.)
• Date: 23 June 1894

Ormsby

and

Good.

Probate.

(1894. No. 22.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Costs — Executors propounding will — Withdrawal of opposition during progress of case — Secret compact — Principles regulating the allowance of costs in contentious proceedings — Equitable jurisdiction.

Plaintiffs, as executors, propounded a will and codicil of a deceased. The validity of the codicil was disputed by the defendants on the grounds of informal execution, want of capacity, that the deceased did not know and approve of its contents, and that its execution was procured by the undue influence of G. and O., two of the plaintiffs. The residuary legatees did not challenge the validity of the codicil, and were not represented at the hearing. The codicil in question bequeathed legacies of considerable amount to the two plaintiffs G. and O., and reduced the amounts of legacies given by the will to the defendants and intervenients, and had the result of reducing the residuary estate. After three witnesses had been examined in support of the plaintiffs' case counsel for defendants withdrew the defendants' pleas, and all charges of undue influence, and all further opposition to the proof of the codicil. Counsel for the plaintiffs then stated that they did not ask for costs against the defendants, but asked to be allowed their costs out of the estate. The Court directed the jury to find in favour of the plaintiffs, and made a decree for probate of the will and codicil; and, being of opinion, on the evidence adduced, that the defendants had no reasonable ground for opposing the codicil, ordered defendants to pay the plaintiffs their costs, refusing to onerate the estate with the payment of such costs.

Previous to the withdrawal of the opposition of the defendants to proof of the codicil, a secret arrangement, embodied in a memorandum of consent or compromise, was entered into between the parties. It was signed by the two plaintiffs G. and O., and by counsel and solicitors representing the parties. It was not intended to be disclosed to the Court. On the refusal of the Judge to allow the costs of the plaintiffs to be paid out of the assets, and his direction that the defendants should pay plaintiffs' costs, counsel for plaintiffs, in answer to an inquiry by defendants' counsel, stated they would levy the costs against the defendants. Counsel for defendants then stated that that would be a distinct violation of the arrangement between them, and handed up to the Court the memorandum of consent, which was in the following terms:—“Ormsby v. Good—Pleas of undue influence and others withdrawn. No costs asked for by plaintiffs against defendants. Plaintiffs and their solicitors to pay the defendants £900 on foot of all costs.”

On motion to vary the minutes of the judgment so far as the same provided that the defendants should pay the costs of the plaintiffs:—

Held (1), that although the consent was intended to be kept secret, still, on the construction that its effect was to release the defendants from liability to pay costs, their counsel was at liberty to disclose it to the Court, when he was informed that the plaintiffs would levy their costs, as given to them by the order of the Court, against the defendants.

(2) That it was not necessary to leave the consent to be interpreted in a subsequent independent proceeding inter partes; but that once the consent became known to the Court, it ought not, as between the parties, to make any award of costs contrary to the letter and spirit of the compact.

(3) That the necessary effect of the consent, as between the parties to it, was to discharge defendants from any obligation to pay the costs of plaintiffs, and that, even if that were not its strict legal construction, it would be inequitable and contrary to the honour of the transaction to make defendants pay the costs of the plaintiffs.

Held, also, that as the estate ought not, under the circumstances, to be onerated with the payment of the costs of the plaintiffs, and as they had forfeited their right to be paid same by defendants, such costs, as between party and party, must be borne by plaintiffs themselves.

In dealing with costs in cases of compromise of contentious Probate proceedings there are three possible courses which may be adopted:—1. The Court may form its opinion of the reasonableness or unreasonableness of the opposition from the course of the trial and the evidence actually given before the compromise is arrived at. 2. The Court may refuse to make any specific adjudication as to costs. 3. Or, perhaps, in a certain class of case, the Court may itself inquire into the reasonableness of the opposition by calling witnesses or otherwise.

Gervas Lennox Taylor, late of 21, Molesworth-street, Dublin, died on 31st January, 1894, aged 83 years, leaving assets valued at about £86,000. He made a will and codicil, dated respectively 7th December, 1882, and 16th October, 1893. By the will, after leaving a number of legacies to friends, relatives, and servants, amounting to about £20,000, and about £40,000 to various hospitals and other institutions, including £8000 to the Adelaide, and £2500 to Mercer's hospital, he bequeathed the residue of his property between the Irish Church Education Society and the Church of Ireland Representative Body. The validity of the will was not disputed. By the codicil he bequeathed a number of other legacies, including £5000 to Mr. Robert Gibney (in addition to £500 left to him by the will), £3000 to his friend and medical attendant Surgeon Ormsby for his kindness and attention to him during many years; and he reduced the bequests to the Adelaide and Mercer's hospitals to £5000 and £1000 respectively, The validity of the codicil was disputed by the Governors of these two institutions, on the grounds of informal execution, want of...