Re Smith's Estate

• Jurisdiction: Ireland
• Judgment Date: 01 January 1894
• Date: 01 January 1894
• Court: Chancery Division (Ireland)

In the Matter of the Estate of Michael Smith, Owner; John Thos. Hinds and John O'Reilly, Petitionees.

Monroe, J.

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 THEREPROM IN

THE COURT OF APPEAL.

1894.

Solicitor and client — Costs — One of several trustees acting as solicitor in relation to trust estate.

A mortgage was vested in two trustees of a settlement, upon the trusts thereof. One of the trustees, who was a solicitor, acted professionally in the matter of a petition on behalf of his co-trustee and himself for sale of the mortgaged premises:—

Held, that the rule in Cradock v. Piper (1 Mac N. & G. 664) applied, and that the trustee solicitor's costs of the proceedings were entitled to rank on the final schedule of incumbrances in priority to the mortgage.

Motion by the surviving petitioner, John O'Reilly, to set aside the objection to the final schedule of incumbrances filed by Miss Adelaide Potterton, administratrix of the deceased petitioner, John Thomas Hinds, solicitor.

The objection stated that Mr. Hinds had been solicitor for the petitioners (O'Reilly and himself) from the presenting of the petition for sale till his death, which occurred on the 2nd December, 1887, and claimed the costs due to the estate of the said John Thomas Hinds, as solicitor for the petitioners, and that the same should be inserted in the schedule next after the duties to the Crown, and prior to the claim of the first mortgagee.

The first mortgage appearing in the schedule was vested in the surviving petitioner, John O'Reilly. It was a security for £1000, dated the 29th November, 1880, granted by the owner to John Thomas Hinds and John O'Reilly, who were trustees of a settlement dated the 25th July, 1871, made on the marriage of Francis John O'Reilly and Rebecca Hoey, the £1000 being the wife's fortune, and vested in the trustees on the trusts of the settlement.

John O'Reilly now contended that as John Thomas Hinds was trustee of the mortgage he was not entitled to charge as against his cestui que trusts any costs of the present proceedings, or, at all events, that he was not entitled as against them to any profit costs. The settlement of the 25th July, 1871, was lost, and the contents of it were proved by the affidavit of Francis John O'Reilly. It was not alleged by Miss Potterton that the settlement contained any clause enabling John Thomas Hinds to charge for...