Robertson vs. Wendell, 6 Paige Ch. 320

The Chancellor. Under the circumstances of this case, I think the decree was clearly wrong in charging the defendant with costs; and the only doubt I have is upon the question whether the defendant is not entitled to the costs of his defence, to be paid out of the fund. The conduct of the defendant in relation to the trust has been perfectly fair and blameless, except in the single point of neglecting to furnish the solicitor with a statement of the securities in bis hands, within a reasonable time after the receipt of his letter.

But as that letter did not contain any request to have the securities delivered over with a view to close the trust, I think a bill should not have been filed and this unnecessary expense made without some further communication with the defendant on the subject.

The facts stated in the answer, as to the information received by the defendant respecting the situation of the complainant, in connection with his very advanced age, would of themselves have been sufficient to justify the defendant in declining to deliver over the property to him, except under the direction of the court. although the trustee might have been misinformed as to the fact.

But as a replication was filed to the answer, and as there is no evidence in the case to show the age of the complainant or that there was any circumstance from which the defendant had any reason to doubt his capacity to do business, the defendant must lose the benefit of this part of the answer. I shall, therefore, though with much hesitation, affirm so much of the decision of the vice chancellor as refuses costs to the defendant. Indeed, it is somewhat doubtful whether the appeal is broad enough to reach such a claim.

So much of the decree as orders the defendant to pay costs to the complainant must be reversed, with costs.