[CHANCERY DIVISION]

In re WILLIAM DAVIES.

DAVIES v. DAVIES.

[1887 D. 717.]

Originating Summons - Jurisdiction - Question between Legal Devisees - Rules of Supreme Court, 1883, Order LV., rr. 3, 5, 6.

Upon an originating summons under rule 3 of Order LV., of the Rules of Supreme Court, 1883, there is jurisdiction to determine such questions only as before the existence of that rule could have been determined under a judgment for the administration of an estate or execution of a trust.

Consequently, there is no jurisdiction upon an originating summons to decide a question arising between legal beneficial devisees under a will.

An objection to the jurisdiction upon an originating summons having been taken by the Defendants for the first time after the hearing of the summons had been adjourned into Court:-

Held, that the objection ought to have been taken in Chambers, and that, though the objection was good, and the summons must be dismissed with costs, the Defendants could not be allowed the costs of the adjournment into Court.

ORIGINATING SUMMONS by John Davies, who claimed to be a devisee under the will of William Davies, deceased, for an order

declaring that, upon the true construction of that will, and in the events which had happened, certain messuages in the county of Cardigan were devised to and became vested in the Plaintiff, John Davies, and Timothy Davies, deceased, in fee simple as joint tenants and not as tenants in common. The devise to John Daviesand Timothy Davies was a legal devise. The persons served with the summons were residuary devisees, and devisees in trust, under the will of Timothy Davies. Neither the trustees nor the executors of William Davies were served with the summons. The testator, William Davies, died in September, 1846. Timothy Davies died in July, 1876.

J. G. Wood for the Plaintiff.

Everitt, Q.C., and Stutfield, for the Defendants:-

There is no jurisdiction under rule 3 of Order LV., to determine a question between legal devisees upon an originating summons: In re Carlyon (1).

J. G. Wood, for the Plaintiff:-

There is nothing in the words of rule 3 to limit the jurisdiction to trust estates. The Plaintiff is a "devisee of a deceased person," and he claims the determination of a "question affecting the rights of a person claiming to be a devisee." Rule 5B, which provides that when the summons is taken out by any person other than the executors, administrators, or trustees, it is to be served on the executors, administrators, or trustees, does not cut down the preceding rule 3; it only means that, if there are any trustees, they are to be served. Here there are no trustees of the property in question, and all the persons who are interested in the question to be determined have been served.

At any rate this objection ought to have been taken in Chambers, and the Defendants should not be allowed the costs of the adjournment into Court.

NORTH, J. :-

The question which is raised by this summons arises between two legal devisees, viz. whether the devise to them was as joint

(1) 56 L. J. (Ch.) 219.

tenants or as tenants in common. In my opinion I have no jurisdiction under rule 3 of Order LV. and the following rules to deal with such a question. As I have already said, in In re Carlyon (1), the object of these rules was to afford an opportunity obtaining a decision in a summary way of questions affecting the administration of an estate or a trust where it would previously have been necessary to have a decree or judgment for the administration of the estate or execution of the trust. Formerly, in order to obtain a decision of a single question arising in the administration of an estate, it was necessary to obtain a judgment for the general administration of the estate. The expense of this was felt to be a crying evil, and I am glad that the rules have provided a mode of avoiding that expense, and of obtaining a decision of any question affecting (inter alia) the rights of a person who claims to be a devisee, without a general administration of the estate of the testator or of the trusts of the will. Devisees are not deprived of the rights which are conferred on other persons, and any question which arises between a devisee and the executors or trustees of the will can be determined on an originating summons. But, in my opinion, these rules give no general power to determine any question arising between devisees and other persons, unless it is a question which would have arisen in the administration of an estate or execution of a trust. That, I think, is the proper construction of rule 3, looked at alone, and this view is borne out by rules 5A and 5B, which provide for the persons who are to be served with an originating summons. When the summons is not taken out by the executors or trustees it is to be served on them. Then rule 6 provides that the Court may direct such other persons to be served with the summons as it may think fit. No doubt the Court has jurisdiction to order other persons to be served, but still, in my opinion, the rules only apply to questions arising between the executors, administrators, or trustees on the one hand, and the person, be he creditor, or devisee, or next of kin, who sets up the claim, on the other hand. It may be necessary to serve other persons when the executors or trustees are only incidentally interested, but, in my opinion, the Court has no jurisdiction to decide any question which could not have been

(1) 56 L. J. (Ch.) 219.

determined under a judgment for the general administration of an estate or execution of a trust. I adhere to what I said in In re Carlyon (1). In that case I acted upon the submission of the parties, and at their request I decided the questions raised by the summons, but I pointed out that there could be no appeal from my decision. I must dismiss this summons, with costs. The question of jurisdiction was decided by me in In re Carlyon in December, 1886, and my decision was reported in the Law Journal in March, 1887. The objection to the jurisdiction in the present case might therefore have been taken in Chambers, and I shall not allow the Defendants any costs of the adjournment into Court. I know that Mr. Justice Stirling has expressed the same view of the construction of rule 3.

Solicitors for Plaintiff: Helder & Roberts, agents for W. Morgan Griffiths, Carmarthen.

Solicitor for Defendants: Thomas Lovell, agent for Roberts, Son, & Evans, Aberystwith.

W. L. C.

(1) 56 L. J. (Ch.) 219.