The Gazette 1958-61

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

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