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In Chambers this morning Mr Justice Williams delivered the following judgment in Winmill v. Gallie and others :

I have looked through the numerous cases cited. In some of them an executor who unsuccessfully propounded a will was condemned in costs, in others he was not. In these latter cases the parties for the most part seem to have been left to pay their own costs. No clear prinoiple can be evolved from these cases. Formerly, in Chancery, as well as in the Exleaiatical Courts, the Court did not decree costs against an unsuccessful party in cases where nowadays costs would ba given. The modern rule undoubtedly is that, except in very exceptional eases, the vanquished party should pay costs. I see no reason why this rule should not be applied to the case of a person unsuccessfully propounding a will, If it cm be shown that the litigation was rendered unnecessary by the conduct of the deceased testator, or if the circumstances were such that it became almo3t a duty on the part of the executor to propound the wil', the executor might, if unsuccessful, be fairly relieved from costs, or have his costs out of the testator's estate. In the present case I see nothing to exonerate the unsuccessful party from the ordinary consequences of defeat. There is, however, nothing in any of the cases to show tint the litigant condemned in costs is liable for anything more than tho ordinary coßts between party and party, Nor is there I any case in which, where such costs have been recovered, the estate has been made liable to the successful party for any additional costs. The rnlv question is whether the coßts should be paid by u ll the defendants or by the defendant Mrs Gallie alone. I think, looking at the pleadings and tho course the action has taken, that the order should be against all the defendants. All the defendants expressly set Up the validity of the will in their statement of defence. The counter-claim, propounding the will, is by Mrs Gaire, the executrix, alone. It was agreed that the claim and counter-claim should be tried together. It was contended by Mr Chapman that the defence of a valid will could not have been raised unless the will had been propounded by the counter-claim. That may be so, but as it has been propounded, and as the action and counter-claim were tried together, and thus treated as one action, the defendants must be considered as having taken upon themselves the proof of the allegation in th° ir statement of defence that the will was valid. This was the substantial issue tried, and the one to which the costs are referable. As it was the issue relied on by the other defendants as well as by Mrs Gallie they should all bear the costs of trying it,

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Bibliographic details

THE GALLIE WILL CASE., Issue 8044, 22 October 1889

Word Count

THE GALLIE WILL CASE. Issue 8044, 22 October 1889

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