279 / 324
plaintiff condemned in costs. As an alternative, he
asked that the plaintiff pay towards the defendant's
costs the sum of £i 50 lodged in Court; alternatively,
he asked that the plaintiff be ordered to bear his
own costs. The plaintiff, on the other hand, applied
for an order for the payment of his costs out of the
estate.
If this had been a case of opposition by the
testator's brother to probate of the will propounded
by the executor I should have no hesitation in
saying that in my opinion the testator's own conduct,
viz., the state of his health a fortnight before the
will was made and three weeks after its execution,
coupled with the subsequent history of his illness,
was to be considered the cause of the litigation which
occurred after his death as to the validity of his
will. Moreover, the medical evidence given on
behalf of the plaintiff went further than deposing
to the testator's condition some time before and
some time after the execution of the will;
the
opinion was offered that the testator's condition of
insanity had probably not changed very much in
the meantime.
Is this case, then, different from a case of un
successful opposition to probate ? I am not satisfied
that it is. When the plaintiff acquiesced in a grant
of probate in common form his own information
about the condition of the testator's health was
what he had been told in the letter of the 5 th February
1951. That letter did not inform him that Dr.
O'Regan, a fortnight before the will was made, had
reached the conclusion that the testator was certi-
fiably insane. Moreover, the plaintiff was resident
in the United States.
In these circumstances and in view of the prin
ciples as I find them stated in the cases which I have
referred to, I think it is proper that the plaintiff
should have his costs out of the estate. In reaching
this conclusion I am fortified by the course which
Gibson, J., indicated he was prepared to take in
Smith
v.
M'Cashin—32. I.L.T.R. (1898), 55.
The plaintiff has, however, already received by
way of distribution of his share of the residue a sum
stated by counsel to be approximately £326. He
must repay this money to the executor as a condition
of the payment of his costs out of the estate.
The sum of £150 lodged in Court by the plaintiff
by way of security for the defendant's costs must be
paid out to the plaintiff. It is money paid into Court
for a specific purpose ; and, much as I might desire
that it should reach the hands of the executor in
part-repayment of the plaintiff's share of the residue,
I do not think I have any power to deal in that way
with the money lodged in Court as security for
costs.
The defendant must, of course have his costs
out of the estate as executor's costs.
(Mulligan
v.
McKeown—(1955) I.R. 112.)
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of costs. Signature where solicitor practises under a
business name.
The plaintiff, a solicitor practising alone under a
business name, delivered to the defendant a bill of
costs signed in the business name. In proceedings
for recovery of the costs it was pleaded inter aHa
that the plaintiff had not delivered to the defendant
a bill of costs subscribed with the proper hand of
the plaintiff as required by the Solicitors (Ireland)
Act, 1849 (12 and 13 Vie. C. 53), Section 2. The
Circuit Judge held that the Bill was not properly
signed and dismissed the action and an appeal was
taken to the High Court on Circuit. In the course
of his judgment allowing the appeal, Haugh, J., said :
The plaintiff, William L. Carroll, is a solicitor carry
ing on business alone under the name of Carroll &
McKenna. The bill of costs was signed Carroll &
McKenna, and it was objected on behalf of the
defendant that such signature was not sufficient to
comply with the provisions of the Solicitors Act,
and that Mr. Carroll should have put his signature
at the foot of the bill. The point has never been
decided in Ireland, but there is a decision of the
English Court of Appeal (Goodman
v.
Eban, 1954
—L.Q.B. 550), in which it was decided that such a
signature was sufficient to comply with the English
Act, the Solicitors Act, 1932 (22-23 George V.,
C. 57, S. 65). The phrasing of the relevant section
is different in the two Acts, but I find that in sub
stance the relevant provisions as to the required
signature of a solicitor's bill of costs are the same.
I propose to follow the decision of the Court of
Appeal in England and accordingly I will allow the
appeal with costs. In the event of this case being
reported I would like to add that I think as a matter
of prudence a solicitor practising alone under a firm
name should sign in his own name for and on behalf
of the firm name.
(Carroll
v.
Ryan, 91 I.L.T.R. 194.)
Exemption from rates—advancement of profession.
The Royal College of Nursing in England claimed
to be entitled to a rating relief under Section 8 of
the Rating Act, 195.5, in respect of their premises
on the ground that their main objects were charitable.
The main objects of the College were
(a)
to promote
the science and the art of nursing and the better
education and training of nurses and their efficiency
in the profession of nursing ;
(b)
to promote the
advancement of nursing as a profession in all or any
of its branches. It was admitted by the local authority
that the objects in
(a)
are charitable.