The Gazette 1952-1955

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