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The Pamphlet Collection of Sir Robert Stout: Volume 74
Re the Judgment of the Court, p. 41
Re the Judgment of the Court, p. 41.
No. 2—Residuary estate misapplied by Mr. Mills and now restored, p. 34.
| a | Misapplied without the knowledge of Mrs. Isaac, p.p. 16, 33. |
| b | No account rendered to her that these disbursements from her funds had been made, p. Id. |
| c | Misleading and inaccurate accounts furnished to her, p.p. 23, 33. |
No. 3—Interest for 25 years on misapplied funds disallowed to her by the Court, p.p, 13, 44.
| a | Each amount restored is the disclosure of a new fact. p.p. 28, 33, 38, 39. Concealed from her knowledge till this suit, p.p. 22. 23, 42A, 43A. |
| b | Cases decided in English highest Courts ruled "to govern this," p.p. 42, 44. |
| c | Submitted and affirmed for Mrs. Isaac that they stand in marked contrast, p.p. 23. 39, 42A . |
| d | Submitted that Wm, Exors, p. 23. Keckwich, J., L. J.'s Davey, Kay, and Lindley, p.p. 38, 39, are over-ruled. |
No. 4—Re filing of accounts, p.p. 19, 43A.
| a | No accounts were filed, p.p. 19, 43, 49A. |
| b | Penalty by Statute, p. 43A. Ruled that no penalty is incurred for not filing unless claimed by beneficiary, p. 43. |
| a | Submitted that the Statutory Rules of practice impose no such condition, p. 43A. |
| b | Affirmed that Mrs. Isaac's counsel in argument claimed that the penalty was incurred and should be imposed. |
| c | Submitted that Mr. Mills in not filing failed to comply with the Rules of Practice, and disobeyed the order of the Court, p. 43A. |
| d | Affirmed that the loss of ledgers, p. l9, vouchers for disbursements of fully £50,000. p. 30. Absence of filed accounts, rendered all efforts of counsel for Mrs. Isaac to arrive with any degree of certainty, at the knowledge of what accounts had been rightly debited to Residue funds, exceedingly doubtful and unsatisfactory. |
Ruled that "no penalty was incurred by Exors In not filing after obtaining on their own motion an extended time for filing." Judgment, p. 43.
Submitted that Statutory Rules of practice (full text p. 43A) is in direct conflict with above, which affirm that" at the expiration thereof (the extended time) if the Exor shall fail to pass his accounts he shall be chargeable," &c.
Submitted that statutory Rules of practice are overruled.
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No. 5.—Ruled that "Mr Issac ought to have known how things stood. "Was equally liable with Mr. Mills." If funds lay univested "it was Mr. Isaac's bussines to see that they were invested." judgement, p.p 47, 48
| a | Submitted that under the authority OF Vice Chancellor Stuart in the case of Wilkins v. Hogg. and on appeal in the judgment of Lord Chancellor Westbury (if similar clause of exoneration in Will, p. 32A) a trustee was not liable for acts of his co-trustee, and to discharge anyone trustee from liability who handed over the estate to another trustee, and that "no court had any right to invest such trustee with responsibility," &c., p.p. 82, 32A, |
| b | Submitted that Vice-Chancellor Stuart and Lord Chancellor Westbury are here over-ruled. |
No. 6.—Held that "Mrs. Isaac's understanding is that proceedings are mainly directed against Mr. Mills," and "apparently she is not aware that the action by her in to recover money from Mr. Isaac," and, "Mr. Isaac was a party to these alleged breaches of trust, "p. 48.
| a | Submitted upon the above cited cases that Mrs. Isaac's attitude is legally and authoritively sustained, p. 32. |
| b |
Because Mr. Mills kept all the books, paid all accounts, applied all estate funds, and was uncontrolled and undirected by his co-trustees, and was a paid fiduciary appointed under the sanction of the court, p.p. 15, 17, 22. Submitted that Mrs. Isaac is deprived of interest contrary to law and equity, p.p. 23, 38, 39, 43. |
No. 7.—Held in the judgment that "Mrs Isaac has a life interest in one-half of the Residue the income of the half being payable to her," and, "the persons, however, who have the life interest on the other half do not make any claim" &c., p.p. 47, 48,
| a | The latter persons who have "the other half" received out of the Residue Funds, held in this judgment to be £4321 16 4, (p. 34) on 1st September, 1870, the sum of £2550, (the Bell Award) and have ever since wrongly, through no fault of theirs, enjoyed the benefit of it to that extent, p. 34. |
| b | Mrs Isaac has not to the present time benefited one penny from her share of Residue, p. 34. |
| c | Therefore her claim is not singular or unreasonable. |
| d | And, that when referring to Mrs Isaac's interests in the estate, and those of her children apparently. His Honor, Mr Justice Williams . . . (the remaining portion of this paragraph is illegible.—ED.) |
No. 8.—Held that Mrs. Isaac "could at any time have ascertained the state of the Residue Account" p. 43, and must be deprived of 25 years interest due to her, because she did not ascertain, p. 44, and all future interest which may accrue from the now restored Residue Fund, p.p. 43, 44.
| a | The books were inaccurate, p. 38. |
| b | The H list, p. 33, was omitted from the accounts till this suit, p. 16. |
| c | "The red ink " Residue Funds, p. 23, received from Rich, Short, and others £593 19s 6d, have not yet got into the Residue Account. |
| d | The above b and c amounts were omitted from the accounts rendered by the order of the Court, Nov. 1802, for filing, p. 16, accompanying an affidavit by Mr. Mills that " these were all the monies he or his co-trustees had received," &c. |
| e | Therefore it was affirmed that it was not at any time possible to have ascertained from the books the state of the Residue Funds. |
| f | And upon the authority of Lewin on Trust, p. 43A, that it was not Mrs. Isaac's duty to ascertain. |
| g | And upon the authority of Lord Chancellor Westbury, p. 32, that it was not " Mr Isaac's business to have known how things stood," p. 47. |
- That Mrs. Isaac is therefore deprived contrary to Law.
No. 9.—Held that "The Court had examined this account (Rich, Shorts, & Co., above) and was unable to satisfy itself that this sum was in hand for the whole of that period," and "if there was a sum in hand it was Mr Isaac's business, with the other trustees, to see that it was invested," p. 32A.
| a | That Mr Isaac's, neglect (if it existed, p.32) did not discharge the Managing Trustee who misapplied her, and did not disclose it to her, from liability to Mrs Isaac, p.p. 42, 43A. |
| b | Rich and Short's payments as per ledger, none of which were ever invested, p.p. 38, 32B. |
| c | Mrs Isaacs was not informed that this money was received, it was a new fact disclosed by this suit, p.p. 88, 38. Submitted that Lord Langdale, in p. 31, about retaining Trust Funds in hand more than one year is overruled, and that Mrs Isaac is wrongly deprived. |
Note.—For the loss of books and vouchers of which no proof was ginve. For Deed of Release for all breaches of Trust committed by Mr Mills, give by him to Mrs Isaac to sign, unread to her and contents unknown by her (p. 14). For neglect to obey the order of the Court given, 16th April, 1870 (p. 43A) to file and pass accounts, on account of which of Trust Residue Funds (p.34). For leaving Mrs Isaac's Trust Funds uninvested (p.37) and her Residue Funds uninvested (p.32B) For acquiring Trust Estate (p. 7, 37B) etc., no single word of disapproval was expressed from the Bench (p. 19), but this administration was almost entirely as Mr Mills says, (p. 10) susatained and uphead by the Court; while Mr Isaac, who voluntary undertoook the execution of imporatnt duties, and against whom personally on one act of mistake or wrong was ever suggested, or can be proved, the Court felt called upon and at liberty to freely blame and censure, p.p. 19, 47, 48.]