Rogers v. Ross
New York Court of Chancery
THIS cause came on to be heard upon the equity reserved, upon the coming in of the Master’s report, (vide ante, p. 388. S. C.) a question arose, whether the costs of the defendant should be charged upon the assets of her testator, or upon the fund in controversy, being the rents and profits of certain real estate. for the plaintiff, contended, that the costs ought not to fall upon the fund, for that would be making the owners of the fund pay the costs of the defendant in…
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THIS cause came on to be heard upon the equity reserved, upon the coming in of the Master’s report, (vide ante, p. 388. S. C.) a question arose, whether the costs of the defendant should be charged upon the assets of her testator, or upon the fund in controversy, being the rents and profits of certain real estate. for the plaintiff, contended, that the costs ought not to fall upon the fund, for that would be making the owners of the fund pay the costs of the defendant in unsuccessfully resisting their démand.
1Opinion of the Court
The Chancellor.
Neither the defendant, nor her testator, were in fault. Her testator was the executor of Alexander Henderson, and the will of A. II. was expressed so ambiguously, as to the disposition of the intermediate rents and profits of the farm devised to William Henderson, that counsel differed as to the true construction and legal operation of the will on that point. It was, therefore, an act of
*609sound discretion in the executor of A. H., and in the defendant, as his executor, to require the direction of this Court; and the fund in dispute, not his own estate, ought to bear the expense…
2Cited by10 opinions
- Downing v. . MarshallNew York Court of Appeals · 1867
- Walton v. WaltonNew York Court of Chancery · 1823
- Ex parte PlittU.S. Circuit Court for the District of Eastern Pennsylvania · 1853
- Sherman v. LemanIllinois Supreme Court · 1891
- Merriam v. WolcottNew York Supreme Court · 1881
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