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will of the late Sir Frederick Henry Royce, Bt., and
who, later, after the testator had died and the will had
been proved, became a trustee of the will, was pre
cluded by section 15 of the Wills Act, 1837, from
taking remuneration for his services as trustee.
Section 15 of the Wills Act, 1837, provides:
". . . if any person shall attest the execution of any
will to whom or to whose wife or husband any bene
ficial .
.
. interest, gift. . . shall be thereby given or
made, such .
. . interest, gift. .
. shall so far only as
concerns such person attesting the execution of such
will, or the wife or husband of such person ... be
utterly null and void, and such person so attesting
shall be admitted as a witness to prove the execution
of such will .
.
. notwithstanding such .
.
. interest,
gift...."
Mr. Justice Wynn Parry, giving judgment, said
that there was no direct authority on the question
with which he had to deal. It arose because the first
defendant was an attesting witness to the testator's
will and on the death of one of the two trustees
named in the will he was appointed to be a trustee of
the will. Under clause 16 the testator provided that if
so long as his trustees were retaining any part of the
trust fund it should be lawful for them to pay them
selves out of the income "before dividing the same
such a sum as shall equal 5 per cent thereof to be
'equally divided between them by way of remunera
tion for their services." Then in clause 17 the testator
provided that "any person who may for the time
being be an executor or a trustee of my will and who
may be a solicitor shall be entitled to charge and shall
be paid out of my estate for his services in the same
manner as though not being an executor or trustee
he had been employed by my executors or trustees to
render such services."
Now having regard to the circumstance that the
first defendant attested the will, was he on becoming
a trustee entitled to receive remuneration under
clause 16 and to make professional charges under
clause 17, or was the circumstance that he attested the
will fatal to bis right to receive any benefit under
either of those clauses ? The question really turned
on section 15 of the Wills Act 1837.
It has been held, and the proposition was beyond
dispute, that the provision in a will that a solicitor
was entitled to charge, was a legacy. In
In re Pooley
((1888) 40 Ch. D. i) a testatrix appointed a solicitor
as one of the trustees of her will and declared that
any trustee of her will who should be a solicitor
should be entitled to charge for all business done in
relation to the estate. The solicitor was one of the
attesting witnesses and it was held by the Court of
Appeal that he was not entitled to any profit, costs
for business done by him in relation to the estate,
for the right to make professional charges could only
be claimed under the will and was a beneficial interest
under it, from claiming which he, being an attesting
witness, was precluded by section 15 of the Wills Act
1837. That was not exactly this case, because in that
case the solicitor was named as solicitor and trustee
of the will, whereas here the solicitor only became
trustee after the death of the testator.
It was perfectly true that the appointment of the
first defendant as a trustee had the result of enabling
him to take out of the assets of the testator that
which the law would not otherwise allow, because
there was a charging clause. Against that it had to be
borne in mind that it was with the proving of a will
that primarily at any rate section 15 of the Wills Act,
1837, was concerned. There then remained the short
but difficult question on the language of the section :
Has one who attested the will, although not in the
class which had any benefit under it either when the
will was attested or when the will came to be proved,
any right if he afterwards entered a class denned by
the will to take the benefits which the provisions of
the will seek to confer on that class.
He had come to the conclusion that the only safe
view to adopt was that if a man attested a will he
should not in any way be enabled to take any benefit
under that will, not even if he entered a class intended
to be benefited by the will after the will was proved.
Other minds might take a different view, because
there was a great deal to be said for the argument of
counsel for defendant, but (his Lordship) thought
that in many cases it might lead to uncertainty and
in certain cases to collusion.
(In re Royce's Wills Trusts—Tildesley
v.
Tildesley-
(1958) 3 A11E. R. 586).
The Court will not interfere with the exercise of his discre
tion by a Taxing Master, in the allowance offees to counsel.
However, if the Master errs in principle in the fees allowed
he will be asked to re-tax the items.
This was an appeal from a decision of Murnaghan
J., upholding the decision of a Taxing Master in the
taxation of the respondents costs of a case stated
from a District Justice to the High Court, to have
decided if a member of the Garda Siochana was ob
liged, if called as a witness, (i) to disclose the nature
of the instructions which he had received from a
superior officer and (ii) if he was privileged in re
fusing to produce a written statement made by him.
The High Court (Dixon and Teevan J. J., Davitt P.
dissenting) decided that the witness was privileged
from disclosing the nature of his instructions and in
refusing to produce the statement, and directed the
respondent to pay the Attorney-General's costs. The
respondent appealed to the Supreme Court where it
was intimated that an appeal to the High Court, by
way of case stated did not lie. This Court allowed