of Taxation. The Vice-Chancellor further stated, that the principle appeared to be, that whenever Items in a Bill of Costs would be properly taxable if the facts alleged by the Solicitor were true, and the Items were deducted because he had not established those facts, the amount would reckon as a Deduction in the question of Costs of Taxation. That in the Case in Blackstone, the Items would not have been taxable between the Solicitor and Client, assuming the statement of the Solicitor to be true, because there the Client was only alleged to be a Surety for the payment of the Bill, which could not be taxed behind the back of the Principal. 1820. RIGBY v. EDWARDS. ELLIS v. KING. THE Defendant set down the Cause, and the Solici- 5th February. tor for the Plaintiff undertook to appear, without having a Subpana, to hear Judgment. When the Cause came on, the Plaintiff did not appear. The Vice-Chancellor held, the Bill could not be dismissed for want of an Affidavit that a Subpana to hear Judgment had been served on the Plaintiff, and that the Cause could only be struck out of the Paper; but said, that on an application for that purpose, the Solicitor for the Plaintiff would be made to pay the Costs occasioned by his défault of appearance. 1820. 5th February. JAMES BELL, JOHN BELL, and SARAH BELL, Testator be- THOMAS COLEMAN by his Will, 20th June 1783, queathed 400 l. to Trustees, to gave to his two Sons, Thomas Coleman, the Defendant, pay the Interest and Henry Coleman, and to Joseph Cook, 400 l. in Trust to his Daughter, that they or the Survivor, his Executors or Adminia married woman, strators, should place the same out at Interest, on Gofor her sole use vernment or Real Securities, and pay the annual Interest during her life, and Proceeds unto his Daughter, Sarah Bell, (since deceased), then the Wife of the Plaintiff, John Bell, for her life, for her separate use, and after her death, upon further Trust, to apply such Interest and Proceeds unto the Plaintiff, James Bell, for his life, and after his decease, to apply the 400 l. and the Interest thereof and their Children on thereon to arise from the death of the Plaintiff, unto attaining 21. It appeared by and amongst all and every the Children of Sarah Bell, Evidence,that the that should be living at her death, equally to be divided between them, to be paid as they should attain twenty-one; and if only one Child, the whole to such Child at twenty-one. and then to pay the same to her Husband for his life, and after his death to pay the Principal to Testator after wards advanced Husband of his that he gave a The Testator died in June 1789, leaving him survivReceipt for the ing Sarah Bell, his Daughter, and also her three same, expressing it to be as part of the portion of his Wife; and the Testator inclosed the Receipt, together with his Will, in an Envelope; and that since the Wife's death the Husband had received only Interest on 300l. for many years. Held, that the Gift of the 100l. was not an ademption, pro tanto, of the Legacy by the Will. Children, viz. James Bell, the younger, (since deceased,) and the Plaintiffs, John Bell, and Sarah Bell, Spinster. The Testator's Assets were more than sufficient for the payment of his Debts, Funeral Expenses, and Legacies. Sarah Bell, the Mother, died 19th December 1794, leaving her surviving her Husband the Plaintiff, James Bell, and also her Children, James Bell, the younger (since deceased), and the Plaintiffs, John Bell and Sarah Bell, her only Children. James Bell, the Father, administered to his Son James Bell. A Bill was filed by the Plaintiffs against the Defendant as surviving Executor and Trustee, stating the foregoing facts, and insisting that the Sum of 400l. ought to be invested for their benefit, and the Interest paid to the Plaintiff, James Bell, during his life; and the Prayer of the Bill was accordingly, and for the usual Accounts. The Defendant, by his Answer, stated, that after the execution of the Will, the Testator paid to the Plaintiff, James Bell, the Sum of 100 l. in part satisfaction of the Legacy of 400l. and submitted that the same was an ademption, pro tanto, of the Legacy, and that he was not bound to pay more than 300 l. the Interest whereof, at five per cent. had been paid to the Plaintiff, James Bell, since the decease of his Wife, until October 1817; and that he had invested 300 l. in the purchase of Three per cent. Consols, and had offered to make a declaration of the Trusts of the same. The Defendant went into Evidence, and proved a Receipt given by the Plaintiff, James Bell, to the Testator, bearing date the 3d August 1786, whereby he acknowledged to have 1820. 23 BELL and others 0. COLEMAN. 1820. BELL and others 0. COLEMAN. received 1007. part of the Portion of his Wife. The Receipts by James Bell, the Plaintiff, in respect of Interest at five per cent. on 300 l. since his Wife's death, were proved. There was also Evidence in the Cause, that Mary Bates, a Servant of the Testator, who had since become incapable of giving Evidence, being imbecile of mind, informed the Witness, that the Receipt for 100 l. given by the Plaintiff, James Bell, to the Testator, was found in an envelope, under seal, together with the Will. Mr. Heald, and Mr.for the Plaintiffs. Mr. Bell, and Mr. Twiss, for the Defendant. The VICE-CHANCELLOR: Prima facie this advance to the Husband is not a satisfaction, pro tanto, of the Legacy given by the Will to the Testator's Daughter, because the nature of the Gift is different from the Legacy, which is to the Wife for life, then to her Husband for life, and afterwards to the Children. Evidence, however, is admissible, to prove that it was meant to be a satisfaction, pro tanto; but the Evidence in this Case does not satisfactorily establish that intention. The Receipt, it is true, is for 100l. part of the Portion of his Wife, but it does not appear that the Husband had at that time any knowledge of the Legacy; and any advance which a Father makes to his Daughter, may well be called a part of her Portion, and be consistent with an intention that the Legacy given by the Will should not be disturbed. The circumstance of the Receipt being inclosed with the Will affords no certain conclusion In Thelluson's Case (a), there was decisive Evidence that the Testator intended that the India Stock given in his life-time should be considered as part satisfaction of the Legacy which he had bequeathed to his Daughter and her Children by his Will.-Let the Defendant transfer into Court the 300l. invested in 3 per cent. Consols, together with 100 l. in addition, and account for the Interest at 4 per cent. due from the death of the Plaintiff's Wife, (during whose life the Interest was regularly paid), taking Credit for the Sums paid already by way of Interest, together with Costs: (a) Ante, vol. iv. p. 420. 1820. 25 BELL and others v. COLEMAN. FITZGERALD v. JERVOISE and others. JANE JOYE bequeathed to Sir J. Pocock, and use; 11 & 21 Feb. Devise of an George Burley, the sum of 3,000 l. upon Trust, to in- Estate to Trusvest the same in the Funds, or at Interest upon Govern- tees, to sell the ment or Real Securities, and to pay the Interest, same, without Dividends or annual Produce, to her Niece Mary fixing any time Fitzgerald during her life, for her sole and separate and to apply the for that purpose, and after her decease, to pay the same to Frances Interest on the Purcell during her life, for her sole and separate use; Monies to arise and after her decease, to pay and assign the Trust- by the Sale to Monies, Stock and Securities, and the Interest, Divi- the use of the dends and annual Produce, unto and among all and Plaintiff for life, and then over. The Estates continued unsold, and the Plaintiff, as the Heir at Law, claimed the Rents and Profits of the Estate for the first year after the death of the Testatrix, as being undisposed of; and held, that he was entitled |