Menzies v. Connor. suit the defendants Edward and Olivia Turner filed their bill against Ann Connor, and on the 2nd August, 1847, obtained a decree for the administration of the intestate's estate. That decree was imperfect in form, as not containing the usual inquiries as to next of kin, and as to outstanding personal estate. That decree, however, was subsequently rectified, but not before the plaintiff Margaret Menzies had filed the present creditor's suit against Ann Connor, making Edward and Olivia Turner parties, on the ground that the intestate had in the character of a mortgagee died seized of real estate, and charging spoliation. On the 29th April, 1848, the Vice-Chancellor Knight Bruce made an order in both causes, directing the cause of Menzies v. Connor to stand over, and that the plaintiff Margaret Menzies should have liberty, in the suit of Turner v. Connor, to go in and prove her debt. Upon that occasion, the defendants Edward and Olivia Turner asked that the bill as against them should be dismissed, but the Vice-Chancellor declined to make the order. On the 3rd August, 1849, the suit of Menzies v. Connor came on to be heard, when the Vice-Chancellor made an order, that the plaintiff Margaret Menzies should pay the costs of the defendants, Edward and Olivia Turner, not exceeding 201., and that the defendant Ann Connor should pay the plaintiff her costs including her costs of prov ing her debt in the suit of Turner v. Connor out of the personal estate of the intestate. The defendant Ann Connor appealed against so much of this order as directed the costs to be paid to the plaintiff, and the defendants Edward and Olivia Turner also appealed on the grounds that the bill in Menzies v. Connor ought to have been dismissed as against them, and that the plaintiff, ought to have been ordered to pay them their full costs. Wigram and Karslake for the defendants, Edward and Olivia Turner, submitted that the 123rd order of May, 1845, empowering the court to award a sum in lieu of taxed costs, was applicable only to the costs of interlocutory applications; that this was not as would be contended an appeal for costs, because the decree ordered the payment of the costs out of a particular estate, which brought the case within one of the recognized exceptions against appeals for costs, and because the question was not whether there had been a proper exercise of discretion, but whether there was not a manifest error on the face of the decree, the parties being still subject to all the expense of a taxation, and still liable to be served on any motion, as the bill had not been dismissed as against them. They referred to Utterson v. Mair, 2 Ves. jun. 95; Millington v. Fox, 3 Myl. & Cr. 338; Angell v. Davis, 4 Myl. & Cr. 360; Chappell v. Purday, 2 Phil. 227. Daniell's Ch. Pr. vol. 3, p. 100; ed. 1. Bacon and J. V. Prior, for the defendant, Ann Connor, adopted the same line of argument. Russell and Anderson, for the plaintiff, contended that this was Menzies v. Connor. clearly an appeal for costs alone; that the cases of exception were well defined, and that the present did not fall within any of them; that the decree as originally obtained in the suit of Turner v. Connor was imperfect even as a decree in an administration suit, and that when completed, did not suffice to give the plaintiff all the relief to which she was entitled, for her debt could not be paid until after the proper inquiries as to the next of kin had been made, which inquiries might never be taken. With respect to the costs they further contended that the plaintiff was clearly entitled to have the costs of the suit out of the estate, at least up to the time when the order was made for staying proceedings in the suit, and giving the plaintiff liberty to go in and prove her debt in the suit of Turner v. Connor, inasmuch as the frame and scope of the present suit was different from that of the suit of Turner v. Connor, and that in strictness a second decree ought to have been made in the present suit. They cited and commented upon the following authorities: Jenour v. Jenour, 10 Ves. 562; Attorney-General v. Butcher, 4 Russ. 180; Burkett v. Spray, 1 Russ. & M. 113; Gould v. Granger, Mos. 395; M'Aulay v. Adam, 1 Shaw & Mac. 665; Clyne's Trustees v. Dunnet, Mac. & Rob. 28; Godfrey v. Maw, 1 Y. & C. C. C. 485; Pott v. Gallini, 1 S. & S. 206; Pickford v. Hunter, 5 Sim. 122; The Earl of Portarlington v. Damer, 2 Phil. 262; Budgen v. Sage, 3 Myl. & Cr. 683; Angell v. Davis, 4 Myl. & Cr. 360; Reid v. Territt, 1 Coll. 1. Bacon and Wigram both made a few observations in reply. Nov. 13. The Lord Chancellor, after stating the circumstances under which the appeal had been brought, adverted to the objection, that the appeal was for costs alone and that the other matter of complaint was only colorable. His lordship observed, that the authorities did not support the objection; that the rule as to there being no appeal for costs, had not been greatly approved, and exceptions to it had been allowed, Lord Hardwicke, in the case of Owen v. Griffith, Amb. 521, declaring "the rule is not so general with respect to parties appealing for costs only, that in particular cases such rule may and has been dispensed with;" that in Angell v. Davis, 4 Myl. & Cr. 360, and Chappell v. Purday, 2 Phil. 227, the court had given relief on appeals for costs only, when the manner in which they had been dealt with below was contrary to the practice of the court; and that the present case did not fall within the rule as explained by those decisions. His Lordship then proceeded to deal with the general merits of the case, observing that the allegations as to the frame of the present suit, being essentially different from that of Turner v. Connor, were altogether unfounded; that all the relief sought in Menzies v. Connor might have been obtained in the other suit, and that therefore the bill in Menzies v. Connor ought not to have been filed, and must be dismissed with costs; that the utmost to which the plaintiff was entitled was the costs of proving her claim before the Master in the suit of Turner v. Connor. Staniland v. Willott. Nov. 15. On this day the cause was again put into the paper, to be spoken to on the minutes. J. Russell, asked for the costs of the present suit up to the time when the omission in the decree in Turner v. Connor was rectified. The Lord Chancellor refused the application, repeating in effect his former observations, and adding that the omission referred to was a mere slip, and that the suit of Menzies v. Connor would have been carried on for costs alone, the plaintiff having no interest to be advanced by its prosecution, as she must have been well aware. STANILAND v. WILLOTT.1 November 8, 9, 11, 12, 13, 1851. February 26, 1852. Donatio Causâ Mortis-Trust-Costs. The plaintiff being possessed of shares in a public company, when in a state of extreme sickness, transferred the shares into the name of the defendant; the plaintiff having recovered from his sickness, but having subsequently become lunatic, a bill was filed in his name by his committee, to have the defendant declared a trustee of the shares:Held, that as the plaintiff had survived the sickness during which the transfer was made, the gift could not operate as a donatio mortis causâ, and it appearing that the gift had been received by the defendant upon the distinct understanding that it was to be absolute only in the event of the death of the plaintiff : Held, that the defendant must be considered as trustee of the shares for the plaintiff. The bill contained charges of fraud, which were neither supported nor repelled by evidence; but, inasmuch as the costs were not increased by such charges: Held, that the costs of the suit ought not to be affected thereby. THE question involved in this appeal was, whether the defendant William Willott, into whose name certain shares in a public company had been transferred by the plaintiff, was to be regarded as the beneficial owner or trustee of such shares under the following circumstances. The transfer had been made by the plaintiff when in a state of extreme sickness, but having survived that sickness, and subsequently become lunatic, the present suit was instituted by him and his committee, for the purpose of having it declared that the defendant was such trustee, and for a retransfer of the shares. By a decree of the late Vice-Chancellor Wigram (the plaintiff having declined an issue), the defendant was in effect allowed to retain the shares as owner. The facts of the case are so fully set forth in the judgment of the Lord Chancellor, that the above summary will be found sufficient to introduce the arguments of counsel. 13 Macnaghten and Gordon, 664. Staniland v. Willott. J. Parker, W. Page Wood and Glasse, for the plaintiff in support of the appeal, submitted that the gift by the plaintiff was analogous to that of a donatio mortis causâ, and that recovery from the illness during which the gift was made was ipso facto a revocation, Gardner v. Parker, 3 Madd. 184; that the gift of a mortgage deed was clearly the subject of a donatio mortis causâ, Duffield v. Elwes, 1 S. & S. 239; and that although it might be contended that in the present instance the execution of the transfer deed of the shares altered the case, yet, having been executed after the delivery of the shares, it would constitute the transferee a trustee for the plaintiff. They also submitted that the defendant had exerted undue influence over the plaintiff, and commented upon the fact of his having abstained from calling in the plaintiff's solicitor; and referred to the cases of Huguenin v. Basely, 13 Ves. 105; Bulkley v. Wilford, 2 Cl. & Fin. 102; Dent v. Bennett, 7 Sim. 539; s. c. 4 Myl. & Cr. 269; Bridgman v. Green, 2 Ves. 627; Gibson v. Jeyes, 6 Ves. 266; Griffiths v. Robins, 3 Madd. 191. Rolt, Hale and Selwyn contended, that the transaction having been completed, the court would give it effect, though not as a donatio mortis causâ, Edwards v. Jones, 1 Myl. & Cr. 226; that the cases as to undue influence were inapplicable, inasmuch as there was nothing in the shape of a fiduciary relationship existing between the plaintiff and defendant, but only that of an intimate friendship; and that the plaintiff ought to have accepted the issue offered by the ViceChancellor. Hunter v. Atkins, 3 Myl. & K. 113. They cited and commented upon the following authorities; Middleton v. Sherborne, 4 Y. & C. 348; Harris v. Tremenheere, 15 Ves. 34; Pratt v. Barker, 1 Sim. 1. J. Parker, in reply, in reference to the plaintiff having declined the issue, said, that in a similar case Lord Eldon had observed, that it would be impossible to mark the shades of incapacity of a person situated as the plaintiff, by any possible indorsement on the postea. Welles v. Middleton, 1 Cox, 112; see p. 121. Feb. 26, 1852. The LORD CHANCELLOR. This is an appeal from a decree of the Vice-Chancellor Wigram, whereby the defendant William Willott was allowed to retain eighty-five shares in the East London Waterworks Company, which had been transferred into his name by the plaintiff, Charles Harrison Staniland, under the circumstances which I shall hereafter state. The bill, which was filed by the plaintiff by Matthew Howitt his committee, the plaintiff being a lunatic, prayed, that it might be declared that the transfer of the eighty-five shares in the East London Waterworks Company was improperly obtained by the defendant from the plaintiff, and that the defendant was a trustee of the shares for the plaintiff, and that the defendant might be decreed to transfer to the plaintiff the shares with all arrears of interest thereon due, and unreceived at the time of such transfer; and that an account might Staniland v. Willott. be taken of the dividends on the eighty-five shares, which had been received by the defendant since the 7th November, 1843; and that an account might be taken of what was produced by the sale of thirty shares, part of the eighty-five shares sold by the defendant, and also of the present value of the thirty shares, and of the amount of the dividends which would have accrued due thereon, since the same were so sold, if the same had not been disposed of, and also of what would have been the present value of thirty new shares in the company, if the same had been allotted to the defendant, in respect of the thirty original shares so sold by him, and that the defendant might be decreed to pay the plaintiff either the amount of the money produced by the sale of the thirty shares with interest thereon at 51. per cent. per annum, from the day the shares were sold, or a sum of money equal to the present value of thirty shares, and the dividends which would have accrued on such thirty shares so sold, if the same had not been disposed of, as might be most for the advantage of the plaintiff, after making just allowances; and that the defendant might also be decreed to pay to the plaintiff such a sum of money as might be equal to the present value of thirty new shares in the company; and that an account might also be taken of all payments of bonâ fide made by the defendant to or on behalf of the plaintiff, since the 7th November, 1843; and that in the meantime the defendant might be restrained from selling or disposing of or receiving the dividends now due or to become due upon the shares; and for a receiver. The decree appealed from ordered that, the plaintiff by his counsel declining an issue to try the validity of the original transfer of the shares, and the defendant submitting to pay the annuity of 6802. to the plaintiff, it should be referred to the Master to take a proper security for the payment of the annuity. The questions in the case to which I think it necessary to advert are, whether the shares in question were transferred to the defendant as a donatio mortis causâ, and whether, the donor not having died, the defendant has continued to possess those shares as a trustee for the plaintiff, and ought to be decreed to retransfer them. In November, 1846, the present bill was filed, and, among other allegations and charges, it is charged that the transfer of the shares in question was improperly obtained, and that according to the defendant's own showing, the object and intention of the plaintiff touching the shares were testamentary, and ought to have been carried into effect by a will or codicil, and that the plaintiff never expressed any intention to transfer the shares by an immediate transfer so as to make the same the absolute property of the defendant, or deprive the plaintiff of the shares in the event of his recovery, and the operation and effect of the transfer were not explained to the plaintiff, and he was not in fact capable of understanding the same, and that, under the circumstances, a trust and confidence were reposed in the defendant touching the disposal of the shares, and the defendant became and was a trustee of such shares for the plaintiff, and was bound to transfer the same and account for the dividends to him. The bill further charged that it never was the intention of the plaintiff to vest the |