1833. THIS NALDER v. HAWKINS. 1833. Nov. 14. 19. has been filed on behalf of infants, under raising a strong suspicion against the motives circumstances HIS was a motion, on behalf of the Defendants, that Where a bill Henry Browne, as next friend of the infant Plaintiffs, might be restrained from further proceedings in the suit; and that an inquiry might be directed, whether it would be for the benefit of the Plaintiffs, that the suit should be further prosecuted; and if the Master should be of opinion in the affirmative, then that he might friend, the appoint some other proper person as the next friend of Court will the infants, to have the conduct of the suit in the place of the said Henry Browne. of the next direct an in the suit is for the benefit of the infants, The Vice-Chancellor had refused the application, with and if so, costs. The bill was filed in January 1833, on behalf of the four infant daughters and only children of John Nalder, by Henry Browne, as their next friend, against the two persons who were appointed trustees and executors under John Nalder's will, and against Elizabeth Nalder his widow. It stated the will of John Nalder, which was duly attested, and which, after giving a rent-charge of 70%. a year in lieu of dower, as also a pecuniary legacy, and a life interest in his household furniture and effects to his widow, devised and bequeathed his real estate, and his residuary personal property, to the Defendants, the trustees (whom he also appointed his executors), for the absolute benefit of his four infant daughters, equally, with a power to apply the interest of their respective shares towards their maintenance during their minority; and it appointed his said trustees jointly with his widow to the guardianship of the children. The bill stated that the Plaintiffs were whether such next friend is a proper person to con duct it, or who is a otherwise, proper person to be appointed next friend in his place. 1833. NALDER V. HAWKINS. of the The bill prayed that the testator's will might be established, and the trusts thereof carried into effect; that the usual accounts of his debts, and funeral and testamentary expenses, and also of his personal estate, and of the rents and profits of his real estates might be taken, and, if necessary, part of such real estate might be sold to satisfy his debts; that the Defendant the widow might elect between her right to dower at common law and the benefits given her by the will; that an allowance might be made for the maintenance of the Plaintiffs; that a receiver might be appointed of the outstanding personalty and of the rents and profits of the real estate; and that the Defendants, the executors and trustees, might be restrained from getting in such outstanding personalty and collecting such rents. The The affidavits, made by the different Defendants in support of the motion, positively denied all the charges in the bill, with respect to the trust funds being in danger, the straitened circumstances of one of the trustees, the intention imputed to the other not to act, and the testator's alleged incompetency to enter into the agreement. The widow, also, in her affidavit stated, that she had elected to take under the will. It further appeared from the affidavits, that the testator's real estate might be worth, in the whole, between 700l. and 8001. a year; that the trustees had agreed to let the principal part of it, exclusive of the mansion house and adjoining fields, for a period of ten years, at a yearly rent of 6157.; that no member or relative of the family had sanctioned or advised the suit, but that it had been set on foot entirely at the instigation of a solicitor of the name of Tilby, who had for many years acted for the testator in his professional capacity, but who had latterly been discarded, and another solicitor of the name of Phillips employed in his stead; that a few days before Mr. Nalder's death, Mr. Phillips was sent for to assist in making his will, and that a will was then actually prepared and executed; that the day after the execution of that will, Mr. Tilby, without having been sent for, called upon, and made his way into the room where the testator then lay upon his death-bed, and induced or persuaded Mr. Nalder to make and execute another will, which was substantially the same with the former, but which differed from it in not giving such ample powers to the trustees with respect to the management of the property; that the testator afterwards expressed to his brother-in-law and his wife much vexation and anger at his own weakness in having yielded to Tilby's importunity and executed this second will, and wished that it should be destroyed and another will prepared by Mr. Phillips; that this second will was the one which the bill sought to establish and carry into effect; 1833. NALDER v. HAWKINS. 1833. NALDER V. HAWKINS. that Henry Browne, the next friend in the suit, was of The affidavits, filed against the motion, stated some circumstances which gave reason to apprehend that a suit might be necessary, in order properly to protect the interests of the Plaintiffs; but they did not materially alter the facts stated in the affidavits of the Defendants. No other bill had been filed for the purpose of carrying into effect the trusts of the testator's will. Sir E. Sugden and Mr. Hayter, for the motion, contended that upon the facts stated in the affidavits, a case of abuse was disclosed which called for a summary and decisive remedy. The institution of the suit was a most unjustifiable attempt to subject a widow and her fatherless children to the expensive interference of the Court of Chancery-an interference which, however useful on many occasions, was here perfectly wanton and unnecessary, and could have no other object or effect, than to transfer a portion of the moderate fortune to which these Plaintiffs were entitled, into the pocket of Mr. Tilby, the real Plaintiff in the cause. If such a suit were suffered to proceed, the Court would in fact sanction any rapacious solicitor who had been disappointed in his expectations of employment from executors, in hunting out some needy dependent, who would allow his name to be used as a next friend, and then, under pretence of protecting the rights of infants, and without waiting for a case of suspicion against those whom the testator testator had appointed for that purpose, putting a bill upon the file, and thus bringing those infants and their property under the expensive machinery of this Court. Richardson v. Miller (a) was an express authority for the present application. Mr. Pepys and Mr. James Russell, contrà, submitted, that there was enough upon the face of the will itself, and upon the circumstances disclosed by the counter affidavits, to shew that the testator's estate could not possibly be administered, or the interests of the Plaintiffs sufficiently secured, without the assistance of a suit. This was the only bill upon the file relative to the testator's estate; and no one had denied, that it was a bill properly framed to attain all the objects which it professed, and which the state of the family and property required. Instead of discouraging, it had been the uniform practice of the Court rather to encourage and give facilities to persons who sought to throw the protection of a suit around parties whose infancy incapacitated them from acting for themselves; and the Court therefore would not curiously inquire into the circumstances and station in life of persons, who placed themselves in the important and responsible situation of next friends. Davenport v. Davenport. (b) Pennington v. Alvin. (c) Stevens v. Stevens. (d) 1833. NALDER บ. HAWKINS. The LORD CHANCELLOR. It is undeniable that the habit of the Court has been to encourage persons to come forward as next friends, for the purpose of obtaining its aid in behalf of parties (a) 1 Sim. 133. (c) 1 S. & St. 264. inca Nov. 19. |