Grant v. Maclaren

of brandy,, whisky, wine or gin, was treated in this manner, and the profit on every quarter cask averaged $25, and the invoice books in my possession will show that the estate is liable to the Dominion Government for nearly $300,000, or in other words, the duty on one fourth of every cask of liquor imported;"

" I am not desirous of attempting to injure you as you have attempted to injure me ; fortunately none of my family were ever engaged in the liquor traffic, and therefore any exposure, although it might be intensely gratifying to the St. John public, would be harmless to myself and family, but you can see that your own selfishness and base ingratitude may at any time place you in an unfortunate position, and so serious is the offence in the eyes of the law that had the particulars been divulged in the lifetime of your father it would have cost him his liberty.

I do not intend that either of you, or any of your sisters, shall become trustees."

After receiving this letter the plaintiffs instituted a suit in equity for the purpose of having the Grants removed from the trusteeship of the estate. At the hearing the judge in equity, without entering into the merits of the suit, ordered a reference to have the accounts of the defendants taken.

When the case came before the referee defendants' counsel claimed that as the accounts had been passed every year before the Probate Court they could not be reviewed in the equity suit, but the referee proceeded to investigate them and disallowed a number of items as improper charges.

On exception before the judge in equity to the referee's report that learned judge held that the passing of the accounts by the Probate Court was final, and not open to review in another proceeding.

On appeal from this ruling it was reversed by the Supreme Court of New Brunswick, and the report of the referee was confirmed.

The defendants then appealed to this court.

I am of opinion that the Probate Court had no jurisdiction over the accounts in so far as the charges and disbursements of the defendants were incidental to their duties as trustees and not to their duties as executors. Therefore whatever the Probate Court may have determined with respect to the accounts of the trustees, as distinguished from those of the executors, was rightly held by the court below not to be binding on the equity court. The technical rule relied on by the appellant that a judgment cannot be attacked for want of jurisdiction in a collateral proceeding does not, it seems to me, apply to such a case.

For this the case of Atty. Gen. v. Hotham (4) which was referred to by my brother Taschereau during the argument is a sufficient authority.

The exceptions to the referee's report were properly disallowed by the full court on the appeal to it from the equity judge who had allowed some of these exceptions.

There being no res judicata binding the referee it appears to me that we cannot now interfere so far as to reconsider the several items in the accounts which have been made the subject of exceptions for the purpose of ascertaining if the exercise of discretion by the referee, confirmed as it has been TheChief by the court on appeal, should be altered by this Justice. court. Two tribunals have already pronounced upon them and exercised a judicial discretion in the allowances made and no question of principle is involved. Certainly this court as a second court of appeal ought not to review the items of the account in detail in such a case as this. It is laid down in two recent cases in the House of Lords (1) that where two courts have concurrently decided a question of fact that tribunal will not review their decisions, and this principle of adjudication seems to me to apply still more strongly where the subject matter of appeal is one in which the courts appealed from have exercised a discretion as to amounts, not involving any question of principle, in allowances made in taking trustee's accounts.

With refere'nce to the conduct of the trustees which has been dwelt upon by Mr. Hazen, it appears to me that Major Grant acted most improperly in writing the letter which is set out in the bill. The judge in equity ought to have removed Major Grant from the trusteeship at once.

A trustee who threatens to betray the interests of his cestuis que trust in the manner in which Major Grant did in the letter in question should not have been allowed to remain in control of the trust estate as that gentleman has been left up to the present time. 1 cannot understand how any court of equity, having regard to the relationship existing between trustees and cestuis que trust, especially where some of the latter were infants or married women (as in the present case), could allow a trustee who had so far forgotten his duties as to write such a letter still to continue in the administration of the trust funds and property.

Therefore, so far as the conduct of the trustee ought to have any influence on the questions involved in the exceptions taken to the referee's report, Justice. it must be decidedly unfavourable to the appellants.

If I were called upon to take the accounts over again, scrutinizing each item and thus reviewing the discretion exercised by the referee and the Supreme Court of New Brunswick, I could come to no other conclusion than that arrived at by those tribunals.

The charges disallowed were excessive and improper.

The payment of $1,500 a year as a salary to Ronald C. Grant for collecting rents, in addition to the allowance he was entitled to receive as a trustee under the will, was unjustifiable.

The trustees were paid for performing the duties of their office and beyond that clerks were employed and a commission allowed to Charles

Grant, another son of the appellant, for collecting the rents due to the estate.

These charges indicate that there was generally extravagant expenditure.

My reason for making these observations is that the circumstances upon which I have remarked appear to me to afford good ground why we should not be astute in scrutinizing every item in the trustees' accounts which has been disallowed, and why we should adhere to the judgment of the court below as having been a reasonable and proper exercise of its discretion. Further, I think even if we were to take the accounts over again we ought to come to the same conclusion as the Supreme Court.

The appeal must be dismissed with costs.

concurred.

J.-I concur in everything said by his

Lordship.

As to the letter written by Grant I can only say that, could I find words of condemnation stronger than those used by Mr. Justice Tuck I would employ * them. I think what he said is exactly what these gentlemen deserve.

It is this: "The man who could write Tasereau such a letter to ladies, his relatives, of whose estate he had control is not fit to be a trustee, and had the hearing been before me I would have dismissed J. McGregor Grant at once, without hesitation, and have ordered an account to be afterwards taken.

A more cruel, I was about to say diabolical, letter, under the circumstances, could not have been written.

Young ladies, without father or mother, are asking from Mr. Grant only that which they believe to be their right, and they are answered with an implied threat to blast the reputation of their late father, or if not that, then to make him appear contemptible in their eyes. It is a heartless letter, and unworthy of a gentleman." I think these men deserved fully what has been said and I concur with his Lordship that they should have been dismissed from their position as trustees, and disconnected from the estate, at the first opportunity given to the court. I can only say that I hope, for the sake of the administration of justice in New Brunswick, that these men will not be allowed to remain long as trustees of this estate.

J.-I also concur, and I think that, considering the circumstances under which the reference was ordered, the appellants here are not the persons to avail themselves of the objections made.