185 / 266
business done by him. In accordance with the
decision in re Cooper (1939, 160 L.T . 453) this
power would not entitle a trust corporation to
charge its scale fees. Wallington J. o f the English
Probate Division held in the present case that the
testator plainly intended that the bank should be
the executor and trustee and must have known that
they would not have acted
con amore.
This could
be inferred from the fact that he had expressly
authorised the professional trustees first appointed
to charge for their services. He also held that there
is ample authority that the Court is entitled in cases
of this kind to order that a bank acting as executor
and trustee should be entitled to charge for the
work done in administering the estate.
The order made by the Court was a direction that
the bank should be entitled to receive its charges
and not a declaration construing the will and
codicil so that the jurisdiction exercised was the
discretionary power o f the Court to award the
charges even if the will and codicil had not author
ised them. (In the estate o f Campbell deceased,
1934, 1 W.L.R., 516).
Where a solicitor acts as trustee o f an estate without any
charging clause entitling him to receive payment fo r his
professional services and without an agreement with the
beneficiaries, the estate being insolvent, has the Court
jurisdiction to make an order that he shall be paid and
will the jurisdiction normally be exercised ?
The Court has jurisdiction but it will not be
exercised except in special circumstances. Sydney
Neville Worthington appointed his wife sole
beneficiary and executrix and died insolvent in 1947.
The widow consulted the testator’s solicitors who
advised her that she would receive no advantage
by taking out a grant o f probate. The widow went
to reside abroad and the solicitors subsequently
obtained from her a power o f attorney to take out a
grant in the hope that they would be able to negotiate
a settlement o f the creditors’ claims and thereby save
something for the client. A grant o f probate was
obtained by a member o f the firm o f solicitors as
attorney for the widow but it was impossible to
settle with the creditors and an application was
made to the Court for a discretionary order for
payment o f the costs o f administration. Upjohn, J.,
in the Chancery division held that the Court has
jurisdiction to direct remuneration in a proper case
(In re Masters, deed. 1953, 1 W.L.R. 81, and Dale
v.
Inland Revenue Commissioners, 1954 A.C. 34).
It is however a jurisdiction that should be exercised
sparingly and in exceptional cases. While conceding
that the solicitors had acted properly in the present
case and had saved expense to the estate the Court
was unable to hold that the circumstances were
exceptional.
I f the application were granted it
would be open to solicitors in almost ever case to
say that they acted properly and that there had
been no loss to the estate and the salutary rule that a
solicitor-trustee cannot charge for his services
would be virtually destroyed. (In re Worthington,
deceased, 1934 1 W.L.R. 526).
The owner o f property held subject to a mortgage on
which interest had not been paid instructed a solicitor to
clear up his affairs. The mortgagees' solicitor wrote to
the solicitors fo r the mortgagor stating that they wished to
have the mortgage paid off and the mortgagor's solicitors
wrote in reply
—“
we understand that Mrs. P.
(the
mortgagor) w ill shortly be making an appointment to see
you with regard to her accounts with you f o r some time
past. She has several questions which she wishes to raise.
Steps are being taken to rebuild
10 1
Mountview Road
and as soon as the work is in hand we w ill let you know,
when Mrs. P ’s. position can again be reviewed." Was
this a sufficient acknowledgment o f the debt to take it out
o f the provisions o f the 'Limitation A ct
1939 (
England
) ?
Yes. It was held that in the light o f the claims
made by the mortgagee’s solicitors the letter in
reply from the mortgagor’s solicitors constituted
an acknowledgment.
(Wright
v.
Pepin, 1034,
1 W.L.R., 635).
EXCHANGE OF MEDICAL
REPORTS.
In Devine
v.
British Transport Commission
(19 34 ,1 W.L.R., 686) the solicitors for the defendants
in an action for damages for personal injuries
suggested to the plaintiff’s solicitors that in order
to save expense it might be possible to have an
agreed medical report and to dispense with the
necessity o f oral medical evidence. The plaintiff’s
solicitors thereupon sent a copy o f their medical
report to the defendants’ solicitors who upon reading
it decided that it would not be possible to dispense
with oral evidence and returned the report. The
plaintiff’s solicitors thereupon asked for a copy of
the defendant’s medical report. They declined to
furnish it, but gave an undertaking that they would
not make use o f the information which they had
received from the plaintiff. It was held that there
was an implied understanding between the solicitors
that when the plaintiff furnished a copy o f his report
he would be entitled to see the defendant’s report.
If the reports were agreed they could be used in
Court. In the absence o f agreement medical evidence
would have to be called.
EXAMINATION RESULTS.
Preliminary Examination.
A
t
the Preliminary Examination for intending
apprentices to Solicitors held on the 12th and 13 th
7