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Decisions of the Nineteenth Century Tasmanian Superior Courts

Williams and others v. Scott and another [1841]

succession, costs to be paid out of deceased estate - equity

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 2 February 1841

Source: Hobart Town Advertiser, 12 February 1841


            Mr. Browne for the defendants applied for an order of court for the costs in this suit, to be paid out of the proceeds of the descended estate of T. C. Simpson Esq., deceased. The personal property having been all expended in payment of the debts, and the only fund now remaining in the hands of the registrar being the proceeds of the descended estate, and the decree stating that the costs were to be paid out of the estate generally - the Registrar entertained doubts whether he would be authorised in paying them out of this particular fund.

The Chief Justice thought that such an application should be preceded by notice given to the heir at law, if not to other persons. The Registrar had applied to him in chambers, but he declined giving any opinion.

Mr. Montagu had the misfortune to differ from his Honor. It was the duty of a Judge or any officer of the court to give advice to any other officer if required. For his own part he considered it surprising how, if the Registrar understood the Queen's English, he could have any doubt upon the matter. If the Registrar consulted him he should not shrink from the responsibility of informing him what would be the practice at home, as he despised any imputation that he would give an opinion out of court that he would not give from that Bench. It was, however, just to the Registrar to add that it was very natural for him to be confirmed in his doubts when one of the Judges declined to advise him on a point, which would not, his Honor was assured, take the present Master one moment to decide. Perhaps if the learned counsel had no objection to withdraw the application till next court day the doubts of the Registrar might be removed, as his Honor was happy to bear testimony of the zeal, activity, and ability with which the Registrar invariably performed the duties confided to him.

Mr. Browne consented to let the case stand over.

Pedder C.J. and Montagu J, 12 February 1841

Source: Hobart Town Advertiser, 16 February 1841

            Mr. Browne again moved for an order of Court, for the Registrar to pay the costs of this suit out of the proceedings of the testators descended estates.

            Mr. Solicitor-General and Mr. Stephen, for the Defendants, would consent to the order being made.

            The Chief Justice was averse to making an order of the kind without knowing something more of the facts. There was one difficulty, and a very serious one - there was nothing before the Court to shew that the purchasers of these Estates would accept their titles, in which case the funds would not be available for the purpose sought.

Mr. Justice Montagu considered this fatal to the application, as he believed the funds now in Court were merely the deposits on purchases not yet completed. The order must therefore be refused. His Honor also begged to know if the Registrar had been applied to again since the last Court day, as suggested by him?

Mr. Brown replied in the negative.

Mr. Montagu much regretted this. It was quite possible that the doubts of the Registrar might be removed, and his Honor was convinced that no man more than the Registrar himself would regard the multiplication of costs upon costs, fees upon fees, to no other purpose than the profits of the lawyers, through any misconception of his. His Honor was not aware what the doubts upon the Registrar's mind were. If the decree given were intelligible, he was sure it would be acted upon; but if it were not intelligible the Registrar had no alternative, but must come to the Court to amend it; and if the decree on account of unintelligibility could not be acted upon, the Court would take great blame to itself for issuing such a document. The Registrar should have been again applied to, which might have saved all these extra costs - costs taken from the infants - and other parties to the suit, to enrich the lawyers.

Mr. Browne. - "Your Honor, I am not the Registrar."

His Honor. - "It is perhaps fortunate you are not." (A Laugh.)

Mr. Brown, (pettishly). - "I should be sorry to be so, to be exposed to these remarks."

It was then agreed that the Registrar should be applied to again, and if his doubts still remained, the application was to be made on an affidavit that the funds in hand were the produce of sales where the purchasers had accepted the title.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania