Strickland v. Strickland. liam's will, did, by writing under his hand and seal, renounce his right, title and interest in and to the probate and execution of the said will, and also in and to letters of administration, with the said will annexed, of the goods, chattels and credits of Sir William: that Sir William's personal representative was not made a party to the bill, nor was process thereby prayed against him; although, upon the complainant's own showing, such personal representative was a necessary party thereto. Mr. Knight Bruce and Mr. Shadwell, in support of the plea, cited Arnold v. Blencowe,(a) Scott v. Briant,(b) and Pawlet v. Freak.(c) [*257] *Mr. Bethell, in support of the bill, said that the fact that no person sustaining the character of personal representative to Sir William Strickland, was a party to the suit, appeared on the face of the bill of revivor and supplement; and, therefore, Sir George ought not to have pleaded to the bill on that ground, but ought to have demurred to it: that, if Sir George was entitled to avail himself of the defect in the bill by pleading to it, the plea was double; as it averred not only that Sir George Strickland never proved Sir William's will; but also that he never intermeddled with Sir William's personal estate. Mr. Knight Bruce, in reply, said that, as the bill of revivor and supplement alleged that Sir George had possessed assets of Sir William, the plea would not have been a defence to the bill, unless it had negatived that allegation; for the possessing of assets would have been an acceptance of probate; and that the non-acceptance of the probate and the renunciation of it, constituted but one fact. THE VICE-CHANCELLOR :-In this case, a bill of revivor and supplement was filed, which stated that, in May, 1838, the plain. tiffs exhibited their original bill against Sir George Strickland, Eustachius Strickland and Charles William Strickland, stating that Sir William Strickland made his will, by which he left a Strickland v. Strickland. legacy to each of the plaintiffs, and appointed Sir G. Strickland and Eustachius Strickland his executors; that the will was proved by both the executors, and that they possessed themselves of the testator's personal estate and effects: and the relief asked, by that bill, was that an account might be taken of what was due, to the plaintiffs, in respect of their legacies; *and that the executors might be decreed to pay to the [*258] plaintiffs, what should be found due to them on the taking of that account, out of the assets of the testator possessed by them; and, if they should not admit assets sufficient for that purpose, then that an account might be taken of the testator's personal estate and effects possessed by them. The bill of revivor and supplement then stated that the defendants appeared and put in their answers to the original bill; that the statement that both the executors proved the will, was incorrect, and that Eustachius Strickland alone proved the same; that, before any further proceedings were had in the original suit, Eustachius Strickland died, having made his will and appointed Sir George Strickland his executor; that Sir George Strickland proved the will, and thereby became and now is the legal personal representative of Eustachius Strickland, and also of Sir William Strickland, the original testator: the bill then stated that Sir George Strickland had, since the death of Eustachius, possessed his personal estate and effects; and also had possessed certain of the effects of Sir William Strickland; but it did not state when he possessed those effects. The bill then prayed for payment, by Sir George Strickland out of the assets of Sir William, of what should be found due to the plaintiffs, in respect of their legacies; and, if necessary, that an account might be taken of the assets of Sir William and also of the assets of Eustachius possessed by Sir George: and that the suit and proceedings might stand revived against Sir George Strickland as the personal representative of Eustachius and of Sir William Strickland. To that bill, a plea has been put in by Sir George Strickland, which states that the defendant is not the personal represen Strickland v. Strickland. [*259] tative *of Sir Wm. Strickland, and that he never intermeddled with the personal estate of Sir Wm. Strickland; and that he did, in the lifetime, and that he has since the death of Eustachius Strickland, renounced probate and execu tion of the will of Sir Wm. Strickland: And the plea then says that the personal representative of Sir Wm. Strickland, is not made a party to the bill, and that process is not prayed against him. Now it is objected, first, that this plea is bad as being double; and, also, that the defect on which it is founded, is apparent on the face of the bill, and should therefore have been brought before the court by way of demurrer, and not by plea. The law, as laid down in Hensloe's Case, (d) has been followed in Pawlet v. Freak, Arnold v. Blencowe, and other cases; and it has never varied. The law is thus laid down in Hensloe's Case: "And the court took this difference: when many are named executors, and some of them refuse and some of them prove the will, those who refuse may afterwards, at their pleasure, administer, notwithstanding this refusal before the Ordinary: but, if all refuse before the Ordinary, and the Ordinary commits administration to another, there they cannot afterwards ädminister. And this difference is proved by our books in 21 Edward 4, 24a, where it is resolved, by the justices, that, if twenty are named executors and one proves the will, it sufficeth for them all; and the refusal before the Ordinary is not any estoppel against them to administer after, when they please, in our law; and [*260] we have no regard, in this point, to the law of the church: And the executor who proves, ought to name them who refuse in every action to recover the testator's debts, and they may release the whole debt: and it is clear that they who refuse, shall have an action by survivor. But it is held, in 36 Hen. 6, 8a, that, if a man makes two executors and both refuse before the Ordinary, now they can never after administer as executors by force of the will; for now the testator dies intes (a) 9 Rep. 37 a. Strickland v. Strickland. tate: otherwise, when one proves and the other refuses before the ordinary, the other may administer with him when he will." Now, although the bill of revivor and supplement states that the statement, in the original bill, that Sir George Strickland proved Sir William's will, was incorrect; yet it seems to me that the proper mode of correcting that statement, was not by making an averment to the contrary in the bill of revivor; but by amending the original bill by striking out of it that incorrect statement; for, as the record now stands, there is an inconsistency between the two bills: and as there is no reason why credit should be given to the one rather than to the other, the court cannot tell which of the two statements is to be taken as the correct one. Moreover, it is observable that, though the bill of revivor and supplement states, in effect, that Sir George Strickland did. not prove the will of Sir William, yet it alleges that Sir George proved the will of Eustachius: and it further alleges that Sir George had possessed certain of the effects of Sir William; and, as it so alleges, it throws on Sir George the cha racter of executor of Sir William; and makes imperative upon him, in order to meet the allegation, in the bill, that he became the personal representative of Sir William Strickland, *not only to state that he renounced the probate of Sir [*261] William's will, both in the lifetime and also after the death of Eustachius; but also to aver that he never intermeddled with the estate of Sir William. For that averment gets rid of the conclusion of law, which must have been drawn from the statement in the bill of revivor, which amounts to his having taken upon himself the character of executor of Sir William Strickland. My opinion is that the averments in the plea amount only to this, that the character of executor of Sir William never was in Sir George Strickland. Anon.-In the matter of 52 Geo. 3, c. 101. I think that the plea is not liable to either of the objections which have been insisted upon in argument, and that it is a good plea, and must be allowed. [Plea allowed, with liberty to amend. [*262] 1841: 17th June. *ANON. Taxation.-Solicitor and client.-Costs. If a person out of the jurisdiction, petitions for the taxation of his solicitor's bill, he must give security for the costs of the taxation, and also for the balance that may be found due from him. THE Vice-Chancellor ruled that, where a person who is out of the jurisdiction of the court, petitions to have his solicitor's bill taxed, he must give security, to be approved of by the master, for the costs of the petition, and also for the balance that may be found due, from him, on the taxation. IN THE MATTER OF 52 GEO. III. c. 101. 1841 25th June. Charity.-Trustees. On a petition for the appointment of new trustees of a charity, the court directed that, in the deed appointing the new trustees, a power should be inserted, for appointing new trustees in future. THIS was a petition, presented under Sir Samuel Romilly's Act, for the appointment of new trustees of charity-property. Mr. Goodeve appeared in support of the petition; and, at his request, |