t. Maraljall Equity (Cnllertton (Sift of iE. 31. iMaraljall, IC.IC. 1. 1394 CORNELL UNIVERSITY LIBRARY 3 1924 084 263 122 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924084263122 GENERAL ORDERS OF THE OF THjr ' / lOTH OF JANUARY, 1879. WITH §ot(is attd Jormsi of ^voccedingis. BY GEOKGE S. HOLMESTED (Registrar of the Court.) SCot0ttto : ROWSELL AND HUTCHISON (o'5H^^ TABLE OF OASES. PAGE Abell V. Weir 8 Adams Re, Adams v. Muir- head 4 Barry v. Barry 3 Bromley Re 2, 3 CampbeU I'. BeU 3 Christie v. Dowker 14 City Bank v. Scatcherd .... 2 Cole i\ Glover 3 Daggj). Dagg 6 Denison v. Denison 6 Dunlevy Be 3 Eberts v. Eberts 2 English V. English 12 Ette Be 2,3 Farhall ». FarhaU 3 Foster v. Foster 2 Freeborn v. Carroll 3 Fullerton ■». Keely 13 Oorham v. Gorham 12 Graham v. Eobson 3, 6 Hutchinson v. Sargent 4 Jack Re, Jack v. Jack 2 Kirkpatrick v. Howell 16 PAGE Kline v. Kline 11 Marsh v. Marsh 2 Mc Andrew «. Laflamme.. . . 4 McGill V. Oourtioe 3 McMichael v. Thomas 14 Nelles V. Vandjke 11 Outram v. Wyckhoff. 3 Perrin v. Perrin 4 Pettee Ue,McKinley v. Bea- dle 3 Reynolds v. Coppin 2 Rowsell V. Morris 3 Shipman Re, Wallace v. Shipman 2 Simmers v. Erb 11 Slater v. Slater 3 Sovereign v. Sovereign 2 Springer v. Clark 3 Stewart v. Fletcher 3, 6 Sullivan v. Sullivan 3 Swetnam v. Swetnam 2 Vivian v. Westbrooke 3 Walker v. Seligmann 8 White V, Cummins 3 OF THE COURT OF CHANCERY, OF THE 10th or JANUAEY, 1879. 638. Any adult person entitled to apply, under Orders 467 or 471, for an administration order may apply to the Master in the County Town of the County (other than the County of York) where the deceased person whose estate it is desired to administer resided at the time of his death; and such Master may, on 14 days' notice being given to the person or persons entitled under the present practice to notice of such an applica- tion, make an order for the administration of, and pro- ceed to administer, such estate in the least expensive and most expeditious manner. This order is confined to applications made by adult persons ; where an administration of an estate is sought on behalf of an in- fant, or where the person whose estate is to be administered died in the County of York or in any County where there is no local Master — the application must be made in Chambers, or, when necessary, upon bill filed for that purpose. When the application is made by persons claiming as creditors, or as specific, pecuniary or residuary legatees or next of kin, notice must be served on the personal representative of the deceased person whose estate is sought to be administered ; and where an administration of the 2 OKDERS OF THE COURT OF CHANCERY, realty is required, unless the applicant himself be entitled to some- interest therein, some one or more of the heirs or devisees interest- ed therein must be served with notice of the application (Order m). Order 467 has been held to apply to simple cases only, and where executors were charged [with misconduct, it was held that a. bill must be filed (see Taylor's Orders, p. S39.—EbeHs v. Merts, 26 Or. 566) and the same rule it is apprehended would be adopted in the construction of Order 638. But when a plaintiff files a bill for ad- ministration, instead of applying for a decree on notice, he is not entitled to the extra costs thereby occasioned (Sovereign v. Sorer- eign, 15 Gr. , 569, and see Eberts v. Eberts, supra). Where an executor in answer to an application for administra- tion swore that the personal estate had not exceeded f50, the Court,, before it would make an order for administration, required the applicant to file an affidavit stating that he had reason to 1 lelie ve and did believe that the result of the proceedings would show a svibstantial balance of personal estate to be divided among the legatees (Foster v. Foster, 19 Gr., 463). Administration was refused on the application of a legatee whose claim, including interest on his legacy, only amounted to $28, notwithstanding that it was alleged that other legacies re- mained unpaid which amounted to a considerable amount (Reymlds V. Coppin, 19 Gr., 6S7). And where a creditor brings an administration suit after being informed that there are no assets applicable to the payment ot his claim, if the information appear by the result to be substantially correct, he may have to pay the costs of the suit (The City Bank v. Scatcherd,18 Gr., 186). There appears to be some conflict of authority as to whether a deficiency of assets for the payment of debts, is a sufficient ground for the personal representative to apply to the Court for adminis- tration (see Swetnam v. Swetnam, 6 Pr.B., IJfi, Be EUe, 6 Pr.R. , ,159,. Re Shipman, Wallace v. Shipman, S4 Gr. 177; Marsh v. Marsh 7 Pr. R., 1S9 ; Re Jack, Jack v. Jack, 13 C. L.J., 368 ; Re Bromley, before Blake V.C., 28 January, 1878). In the latter case it appeared that the assets were insufficient, that the applicant had been sued by one OF 10th JANUARY, 1879. S creditor in the Division Court, and that another creditor had writ- ten urging the applicant to obtain an administration order, and the application was granted. But it seems clear that an executor has no right to institute a suit for administration merely to obtain an indem- nity by passing his accounts ( Wli ite v. Cummins, S ' Oi: , 60S ; Cole v. Olorer, 16 Gr., S9.3 ; Barry i\ Ban-y, 19 6r., JiSS), and he may be refused his costs of a suit unnecessarily brought (Gh-aham v. Bohson, , 17 Or., SIS), or he may be ordered to pay the costs of a suit which turns out to be improperly instituted (McGiH ■». Courtice, 17 G-r ., 371; SuUiean v. SuUimn, 16 Gr., 9Jf) ; and where the guardian ad litem of an infant defendant had made no objection to the un- necessary proceedings, no costs were given either to the executors or the guardian of such proceedings (Spriiiger v. Clarh, 15 Gr. , 664) ■ So also executors have been charged with so much of the costs of a reference as were incurred in establishing charges against them which they disputed (Stewart r. Fletcher, 18 Gr., 21). Where the personal representative makes application for the administration of the personal estate, the application may be granted f.i/ pxrte (per Esten V. C, Be Dunlevy, see Or.ier Book 11, fo. 778 ; Be Ette, 6 Br.R. 159 ; Be Bromley, supra). Where there is more than one personal representative all must be notified, notwithstanding that one of them be resident out of the jurisdiction (Freeborn v. Carroll, 6 Pr. B., 188). A decree for ad- ministration cannot be made against an executor de son tort where there is no legal personal representative before the Court (Bowsell V. Morris, L.B. 17, Eq. 20 ; Outram v. Wyckhoff, 6 Pr. B., 150). A creditor making application must be a creditor of the deceased per- son and not merely a creditor of his executor or administrator, thus an application by a persoa who had made advances to the executor was refused (Camphdl v. Bell, 16 Gr. 116; Farhall v. Fwrhall, L.B. 7 Chy. 12S; Be Pettee, McKinley r. Beadle, 6 Pr. B. 157). A legatee or next of kin, cannot apply for administration until the expiration of a year from the death of the person whose estate is sought to be administered (Slater v. Slater, 3 Ch. B. 1 ; Vivian e. Westbrooke, 19 Gr. 461). When the estate in question is small, a suit for administration should not be brought until all reasonable means of avoiding the 4 ORDERS OF THE COURT OF CHANCERY, suit have been exhausted ; and where a next friend of an infant brought a suit for administration, without having taken steps to avoid litigation, and the suit afterwards appeared to have been un- necessary, he was ordered to pay the costs of the suit (Hutchinson V. Sargent, 17 Or., 8; Mc Andrew v. Laflamme, 19 Ch-., 193). In simple cases where all parties interested are represented be- ' fore the Master it would be possible, under this and the following order, for the Master to defer making any report until the accounts were taken and the estate realized, and then by one general report to wind up all matters connected with the estate, and this course will no doubt be pursued wherever practicable. The practice in administration suits is governed largely by Orders 211-2S7, ^70-^87, 584-9. Wherever, however, the provisions of any of the Consolidated General Orders conflict with these orders they are abrogated by Order 6S1. Under Order JflO the Master would have power to give any special directions he might think proper respecting the carriage of the order, where there are conflicting claims, and also to transfer its carriage from one party to another, if occasion should require. The rule being to give the conduct of the proceedings, ceteris par- ibus, to the party most interested in prosecuting them properly and economically (Perrin v. Perrin, 3 Oi.It. JfiS ; and see Re Adams Adams v. Mui/rhead, 6 Pr. B. S83, Taylor's Orders 340.) It would seeiri proper that orders pronounced by a Master under Orders 638, 639 and 6^0 should follow the phraseology heretofore adopted in prsecipe decrees, and should not be drawn in the first person. 639. Such Master shall have full power to deal with both the realty and personalty of the estate, the subject of administration, and shall dispose of the costs of the proceedings, and shall finally wind up all matters con- nected with such estate, without any further directions, and without any separate, interim, or interlocutory, reports, or orders, except where the special circumstances of the case absolutely call therefor ; and in so doing he shall be OF 10th januaby, 1879. 5 guided by the practice heretofore had in the administra- tion of estates upon an application made in Chambers for an administration order. Provided alpj^s, that all moneys realized from the estate shall aronce be p^3 into Court, and that no moneys shall be distributed or paid out for costs or otherwise, without an order of the Judge in Chambers or the Court, and on the application for such order, the Judge may review, amend, or refer back to the Master his report or order, or make such other order as he deems proper. The object of this order is to do away with the necessity of a hear- ing on further directions in administration suits ;the order to be made by the Master ought therefore to cover all those directions which, by the former practice, were usually made on the hearing on further directions, except the order for payment of the fund out of Court ; r. g., the Master may properly order any balances found in the hands of accounting parties to be paid into Court, he may also pro- perly direct a sale of the land, the payment of the purchase money into Court, the settlement of conveyances and the execution there- of by all proper parties, and he may also properly appoint some person to execute such conveyances for infants or other persons not sui juris who are incapable of executing the same themselves. The Master has also power to make any order or report which may be necessary for completely winding up the estate or protecting the rights of the parties to the suit ; for example, if it should become necessary to appoint a receiver or to grant an injunction, it would seem that it is intended that the Master shall have power to make the necessary order therefor. The words "without any separate or interlocutory reports, or orders, except so far as the special circum- stances of the case may require," indicate that it is only unnecessary orders or repurts that are dispensed with, but that so far as such interlocutory reports or orders may be essential to the winding up of the estate, the Master is to have power to make them. The drawing up and issuing of many orders may be avoided by acting under Order 231, which provides that a party directed by the Master to bring in any account, or do any other act, is to be held bound to (I ORDERS OF THE COCTRT OF CHANCE !IT, do the same in pursuance uf the direction of the Master without any warrant or written direction served for that purpose. The provis- ions of .that order of course only apply when the party attends the Master in person or by solicitor and has notice of the direction. The only order which the Master is precluded from making in suits for administration, or partition , in which he has issued a de- cree, is that for the payment out of the money in Court ; as to the distribution of the fund, it would seem to be intended that the Mas- ter should state the amount of the commission and what he finds would be a proper apportionment thereof among the different so- licitors under Order GJ/S, and also the amounts he finds payable to creditors, and other beneficiaries, respectively. The order for payment is to be made by a Judge or the Court. Application for this order is to be made in Chambers on a Monday {Order 590) : the application is to be made upon notice, and it would seem that all persons who, under the former practice, would be en- titled to notice of a hearing im further directions, woiild be entitled to notice of such an application. Under the ordinary administration decree, it has been lield that the Master may take an account of timber cut with which a defend- ant is chargeable (Steioart v. Fletcher, 18 O-r., 21) and may als'> without any special directions take evidence and report the facts as to payments made by executors for the maintenence and education of infant beneficiaries (Stewart v. Fletcher, 16 Gr., 235). The Master would have similar powers under a decree issued by himself, he would also be entitled to make all proper allowances to execu- tors, administrators, and trustees, by way of compensation for their services. Where a legacy is given to exeeiitors as compensation for their trouble, they are at liberty to claim a further sum under the statute if the legacy be an insuflicieut remuneration (Denison v. Denison, 17 Or., 307). Where a suit was brought by an executor unnecessarily the Court refused to allow him any commission (Graham v. Rohson, 17 Gr., 318). An executor, not being a trustee of the realtj , is not entitled to receive the rents thereof, and if he do, he is a mere in termeddler and not entitled to any compensation in respect of such rents (Dagg v. Dagg, 25 Gr. , 54^). OF 10th JANUARY, 1879. 7 640. Any adult person who has, heretofore, been en- title! to a decree or order for the partition of an estate. may, on serving one or more of the persons entitled to a share of the estate of which partition is sought, with a 14 days' notice of motion, apply to the presiding Judge in Chambers, or to the Master in the County (other than the County of York) wherein the land sought to be af- fected by the proceeding lies, for an order for the par- tition or sale of the premises in question ; whereupon such Judge or Master may make such order for partition or sale, or such other order as may be proper, and the Master shall thereupon proceed in the least expensive and most expeditious manner, according to the practice now in force, for the partition or sale of the premises, the ascertainment of the rights of the various persons inter- ested, the adding parties, the taxation and payment of costs, and otherwise. Provided always, that where an infant is interested in the estate, no order shall be made for partition, or sale, until such infant is represented by its guardian ad litem, ; and provided also that all moneys realized from the estate shall at once be paid into Court, and that no moneys shall be distributed or paid out for costs or otherwise, without an order of the Judge in Chambers or the Court ; and on the application for such order, the Judge may review, amend, or refer back to the Master his report or order, or make such other order as he deems proper. This Order is also confined to the case of suits iustituted by adult persons ; where an infant institutes a suit for partition a bill must be filed. This order extends the principle of Order 58 to partition suits ; formerly it was necessary to make all tenants in common of the land in question parties to the bill ; under this order it will suffice to notify one or more of such persons. Where the interests 8 ORDERS OF THE COURT OF CHANCERY, are unequal the person having the largest interest should, as a gen- eral rule, be notified of the application. Wherever an account is required from any person, such person should be made a defendant in the first instance, as it would seem doubtful whether parties served with the decree in the Master's of- fice can be made to account thereunder ( Walker v. Seligmann. L.R. IS Eq. 15S1). The plaintiff was formerly bound to allege, and if disputed, to prove, his title, and under this order it will still be necessary that the affidavits in support of the application should establish the ap- plicant's title, and it would also appear to be necessary to show ■thereby the estates and interests of all other persons interested as joint owners. The Court will not decree partition of lands, for which no patent has issued, neither will it decree a sale of such lands at the instance of the representatives of a deceased locatee (Abdl v. Weir, 2JfGr., 464). Where there is no Master resident in the County where the lands lie or where they are situate, in the County of York, or in more Counties than one, the application for partition should be made to a Judge in Chambers. .The new jurisdiction, here conferred on a Judge in Chambers, cannot be exercised by the Referee in Cham- bers (see Order 560); the latter's powers are limited to those matters which on the 23rd of February, 1871 , were done or transacted by a Judge sitting in Chambers. Where two or more orders are made for partition of different parts of the same person's estate, the proceedings may be consolid- ated under Order 64I. By this 0) der the Master is empowered to make such a decree as the Court has heretofore been accustomed to make in partition sviits, — except the order for payment of the money out of Court (see note to Order 639). He would therefore appear to be entitled to make a decree under which an account of rents and profits could be taken, and under which a sum in gross could be allotted in lieu of dower, or curtesy, or any other life estate, and under which all other usual and necessary accounts and enquiries could be taken and made as the circumstances of each case may require, it seems OF 10th JANUARY, 1879. 9 hardly necessary, for the decree to specify all the accounts and en- quiries to be taken and made by the Master with the same detail as has been customaiy in decrees pronounced in open Court. The object of these orders is to lessen the expense of litigation, and if a shorter form of decree can be devised that will embrace all that was included in the form of decree heretofore pronounced in Court, it would seem desirable that it should be adopted. The form given in the appendix has been framed with that view. All parties interested in the land who are not served with the notice of motion for the decree, will have to be served with an office copy of the decree {Order 344)- 641. When after an order has been made under Order 640, lands are discovered in another County, an application may be made to a Judge in Chambers for the IJartition or sale of such lands under the order formerly made, and where two or more orders have been made by Masters in different Counties, an application may be made in Chambers for an order as to the conduct of the future proceedings. The object of this order is to prevent more than one suit being brought in respect of the same estate. Where more than one suit is brought, under this Order application may be made to consolidate them. 6^^. There shall be an appeal to the presiding Judge in Chambers — on any day that he may sit in Chambers— against any decree^ order, report, ruling or other deter- mination of any Master ; the notice of such appeal shall be a seven days' notice, and shall set out the grounds of ob- jection, and the appeal shall be set down for argument not later than the Saturday jpreceding the day on which it is to be argued, and shall be brought on for argument within a month — not including vacation — of the making of such decree, order, report, ruling or determination, or 10 ORDERS OF THK COURT OF CHANCERY, within such further time as a Judge may think proper, and the presiding Judge may then hear, or adjourn into Court, or otherwise dispose of such matters on such terms as he thinks proper. This order works an important change in the practice. All ap- peals from Master's reports are now to be brought on in the first instance before a Judge in Chambers, who has power to adjourn any case he may think proper into Court. Under Order S5S a report became absolute without an order confirming the same at the expiration of fourteen days from the filing thereof, unless previously appealed from. Under Order 64^ the time for appealing is altered, and dates from the making and not the filing of the report. No report which requires confirmation, therefore, would now become absolute until a month had elapsed from its date, and if any proceedings were required to be taken thereunder before the expiration of the month, it would require a special order confirming it. An order for confirmation before the lapse of the month would as a general rule, only be made on con- sent of, or notice to, all parties interested therein and entitled to appeal therefrom. Power is reserved to a Judge to extend the time for appealing under this Order, so as to meet the case of parties who are not noti- fied of the order, report, etc. , until after the time limited for appeal- ing therefrom has expired, or so nearly expired as to prevent the party from prosecuting the appeal within the limited time. This Order applies to all orders made by Masters, and