Brown, Re; Re Brown [1991] QSC 352

IN THE SUPREME COURT OF QUEENSLAND O.S. No. 949 of 1991 Before Mr Justice Derrington Counsel: Solicitors: IN THE MATTER of the Succession Act 1981-1987 - and- IN THE MATTER of the Estate of William Moreton Brown also known as William Morton Brown late of 11 Forest Avenue Molendinar inthe State of Queensland,Businessman, Deceased Intestate - and - IN THE MATTER of an Application by Russell Peter Brown, Debra Ann Brown, James Morton Brown and rodney William Brown under Part IV of the said Act JUDGMENT - DERRINGTON J. Delivered the 11th day of December, 1991 Mr. North for the Appellant. Mr. Kelly for the Respondent/Public Trustee. Mr. Halliday for the Respondent/Widow. Biggs & Biggs t/a for Short Punch & Greatorix forthe Appellant. Official Solicitor to the Public Trustee. Chan & Coutts for the Respondent/Widow. Hearing dates: 25th November, 1991 -- 1 of 19 -- IN THE SUPREME COURT OF QUEENSLAND O.S. No. 949 of 1991 IN THE MATTER of the Succession Act 1981-1987 - and- IN THE MATTER of the Estate of William Moreton Brown also known as William Morton Brown late of 11 Forest Avenue Molendinar in the State of Queensland, Businessman, Deceased Intestate - and - IN THE MATTER of an Application by Russell Peter Brown, Debra Ann Brown, James Moreton Brown and rodney William Brown under Part IV of the said Act JUDGMENT - DERRINGTON J. Delivered the 11th day of December, 1991 This is an appeal from an order of the Master striking out an application brought by the four adult children of the abovenamed deceased who died intestate on 3 July, 1991. The Master acted under Practice Direction No. 7/1982 which provides as follows:- "1. Applications under the above Part are made by originating summons. On the first return date, by the practice of the Court, that summons is treated as a summons for directions and must in Brisbane be brought before a Master in Chambers. The consent of all parties is not required under O 86, r 1(a)(x) as it is not a 'hearing and determination' of the application itself: see O 64, rr 1 (11 ), 1C, 1D, 2. 2. The applicant should show a prima facie case that he or she is an 'applicant' as defined and is otherwise entitled to bring the application ... " -- 2 of 19 -- 2 ' The order to strike out the application was made under O. 22 r. 1 of the Rules of the Supreme Court which enables a Master to strike out a pleading as disclosing no reasonable cause of action, a summons in an application such as this being within the description of a pleading. It is argued by the appellants that the Master purported to act under the above practice direction, which, not being a rule of court, cannot invest jurisdiction to strike out an application. That the Master acted correctly in applying O. 1 22 r. 1 is demonstrated by her reference to a citation referring precisely to that point and then finding, in terms of the rule, that there was "no reasonable cause of action revealed by the applicants". Cf. Glover v. The Executor of the Estate of Marstella (unreported - 1988 O.S. 831/1987 Full Court 24 November, 1988). It then follows that the standards which have been established by authorities relating to the striking 9ut of a claim before the hearing should have application, that is, that it must be "plain and obvious" that there is no reasonable claim: Hubbuck & Sons v. Wilkinson Heywood & Clark [1899] 1 Q.B. 86, 91; Dey v. Victorian Railways Commissioners (1949) 78 C.L.R. 62, 84; Anglo-Pacific Trading Co. Pty Ltd v. Steadfast Insurance Co. Ltd [1955] V.L.R. 228, 237. As Dixon J. (as he then was) said in Dey v. Victorian Railways Commissioners at p. 91; the power conferred "is not to be used in cases of doubt or difficulty or where the pleading raises a debateable question of law". ( See also General Steel Industries v. Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125 at 129-130; Sinclair v. Murphy Ores Incorporated (1978) Qd. R. 239 at 240.) However in that same case Latham C.J. -- 3 of 19 -- 3 said at 84-85 that he did not agree with the view that the rule should be used only in easy cases. Where there is opportunity for full argument and full consideration of the question raised and the court reaches a clear decision which could not be altered by any evidence which could be adduced at the trial, then it is proper in the interests of both parties to dismiss the action instead of allowing the parties to incur completely useless expense. In Anglo-Pacific Trading, O'Bryan J. said: "If the matter is clear, then the parties should know as soon as possible what the issues are and unnecessary expense should not be incurred in the preparation of the case for trial, to meet issues which cannot afford an answer to the defence". These then are the parameters of the appropriate measure. On one side the court will dispose of a matter which is within its competence where it can be clearly seen from.the material that there is no foundation for a claim; but on the other side it will not take the serious step of striking out the claim unless the position is quite clear. In the application of these principles and standards to the present case, any arguable facts must be assumed to be resolved in favour of the applicants, for in this respect the proceeding is much the same as a demurrer. The statement of facts which follows will be presented upon that basis. The value of the estate of the deceased was of the order of $700,000.00. He left surviving him his adult children, a daughter and three sons, who were the children of his first marriage, and his second wife whom he married less than two -- 4 of 19 -- 4 months before his death. They were married in the Philippines where he died unexpectedly. Some attempt was made to raise questions as to the quality of this marriage for although nothing is suggested against the lady herself there is evidence that the deceased enjoyed relationships with a number of women of doubtful character between the death of his first wife and his second marriage. Evidence of this nature is quite impermissible if it is intended to reflect upon the widow. Learned counsel for the appellants argued that although the evidence carried no allegations it was desired to investigate her character and the circumstances of her marriage to the deceased. That cannot help the case of the appellants except that in the somewhat unusual circumstances of the marriage, when it comes to assessing whether the deceased made adequate provision for the proper maintenance and support of his children, all the relevant surrounding circumstances must be taken into account. That includes any competing obligation which he may have to his widow, which in turn would depend upon the circumstances of the marriage including the duration of the marriage and co-habitation: In re Lawford (1954) N.Z.L.R. 1142, 1144. If the widow were to have no competing claim of any serious nature, then the question as to what is proper for the support for his children might be viewed differently from that where the available estate is reduced by reason of the competing claim. For the purposes of the present appeal, although it is probably too favourable to the appellants, it must be assumed that the obligation of the deceased to his widow was of little significance so that -- 5 of 19 -- 5 substantially the entirety of his estate should be regarded as available to answer the claim of the applicants; and it is in that context that it is necessary to decide whether the support which the appellants are to inherit under the intestacy can be regarded as proper in all the circumstances. This identifies the essential issue in this matter because on the evidence all of the appellants save one have modestly substantial estates of their own and they are all in good health and capable of earning a reasonable livelihood. Under the intestacy the widow takes one-third of the estate and the appellants shared the remaining two-thirds equally between them, which means that the widow will receive about $240,000.00 and each of the appellants will receive about $110,000.00. It is perhaps desirable to set out a short account of the circumstances of each of the appellants apart from this inheritance. James Moreton Brown is divorced from his wife and has one dependent child aged five years. Weekly he receives a defence forces' pension of $267.00, a disability pension of $10.20 and rental from a house property of $185. 00. He pays $50. 00 per week maintenance for his child and claims personal living expenses of about $200. 00 per week. He owns and _operates a trucking business which last year sustained a loss of $82,195.00 and has a surplus of liabilities over assets,,,~of about $80,000.00. -, Russell Brown is aged 38 years and is an employee of the Western Australian Government. He supports his wife and two children aged six and three years respectively. Including his house and car and cash, he has a surplus of assets over liabilities of about $125,000.00. However those liabilities -- 6 of 19 -- 6 include a mortgage and other debts of about $16,500.00 while his liquid assets, including money in a property trust, are about $8,000.00. Rodney Brown is unmarried and works as a Commonwealth Public Servant with an annual salary of $31,150.00. He has a surplus of assets over liabilities of about $115,000.00. These include his own residence and a motor vehicle, but his liabilities include a mortgage on his house and debts upon his car and other debts amounting in all to $33,500.00 while his liquid assets, including superannuation entitlement amount to about $10,000.00. Debra Brown is unmarried and aged 30 years. She has been employed by the Gold Coast City Council for 12 years. She has a surplus of assets over liabilities of about $130,000.00. Apart from the house, in which she lives with a companion, and an old car, she owns a unit worth about $82,000.00 and has a bank account of about $4,000.00. However she owes $43,000.00 upon the unit and has a further debt of $5, 000. 00. Her income is $23,252.00 from her employment and $130. 00 per week from the rental of the unit when it is tenanted. In summary, with the exception of James Moreton Brown, whose net position is one of debt and whose income is not very substantial, the appellants have reasonably secure employment and a net asset surplus over liabilities of between $115,000.00 to $130,000.00. However, for the most part their assets consist of their respective homes and cars, and they mostly have debts exceeding their current liquid assets. Conversely, as it has been explained above, on the distribution of the estate of the deceased in intestacy each will also receive about $110,000.00. -- 7 of 19 -- 7 The evidence of the appellants is that they assisted the deceased when they were children in his farming activities, and in their later years at school they had casual part-time work the wages from which was used to assist with the costs of their education and upkeep; but of course the deceased otherwise provided them all with a good education and their upkeep while they needed it. This is generally consistent with what is found in the case of children in farming families. They also say that when the deceased began to acquire properties for rental or resale, they contributed some assistance in the cleaning and restoring of those properties to his financial benefit. Rodney and Russell both also say that they assisted the deceased in finding and managing investment property in Western Australia. Debra also assisted the deceased by providing household help during the illness and after the death of her mother. The appellants also seek to introduce a further consideration, that is, the substantial extent to which the evidence indicates that their late mother's efforts contributed to the estate of the deceased. Support for this is claimed to be provided by Henry Cunningham (deceased) Cunningham v. Cunningham (1936) N.Z.L.R. (Law Journal Supplement) s. 69 at s. 71. In that case it was certainly said in a single-Judge decision that the children of the first marriage were entitled to rely upon some moral claim arising out of the efforts of their mother in contributing to the testator's estate. However on that occasion it was invoked as a factor operating against the claim of the widow from the second marriage of the testator, and it is not necessarily convertible to the present situation where the -- 8 of 19 -- 8 issue is the quality of the support which the deceased should have provided to his children. Further the appellants have benefited from the estate of their late mother in about the sum of about $11,000.00 each, which has been included in the assets of each summarised above. Although the validity of this factor is arguable, this is not the place to determine it in the circumstances of this case. It should therefore be assumed that the efforts of their mother in assisting the deceased in the amassing of his estate should be taken into account in evaluating the moral claims of the appellants on the issue as to what is the proper level of support for them which a wise and just father would provide from his estate. There is one other matter which deserves attention. After the death of his first wife and before his remarriage the deceased had made a will leaving his entire estate equally between the four appellants, but that will was revoked by his later marriage. Nevertheless it manifests his general disposition towards them and his recognition of some obligation towards them. It is true that after his marriage he may have been content to allow the rules of distribution upon intestacy to operate, at least temporarily, so as to provide adequately for his new wife, but the relatively short period between his remarriage and his death makes it difficult to feel assured of this, rather than that he may not have had the opportunity to consider the matter adequately or to do anything about it. The effect of this is to reduce the usual reluctance of the court to inter£ ere with the distribution when the claimants are adult -- 9 of 19 -- 9 children in reasonable circumstances, but it still does not open the way for the court to effect a distribution as it would wish. The sum of $110,000.00 approximately which each of the appellants will now receive on the distribution under intestacy will certainly effect a significant improvement to their respective present financial positions, so that each will be more secure and comfortable than is already the case. The exception of course is James Moreton Brown. On the evidence his entitlement will provide him with little in excess of his deficit, but that is not the complete picture for it is likely that the injection of such an amount of cash into his trucking business will be of greater benefit to him than would appear from the mere calculation of figures. Nevertheless on the evidence his position is still fairly tenuous and insecure and he should have his chance to pursue his claim that although some provision has been made for him, it is not proper in the circumstances out of respect for the Master's decision, it should be added that the material upon which it was made did not satisfactorily indicate the serious financial plight of this party. While it is correct to have regard to the extent to which the present entitlement of the appellants will improve their position, it is also necessary to have regard to the extent to which that position could be further improved out of the estate by an order of this Court. If as the result of such an order the widow were to be left with nothing out of the estate, a contingency which is highly unlikely, then if the appellants were to benefit equally, e~ch would receive a further $60,000.00 only which means that each would receive $170,000.00 instead of -- 10 of 19 -- 10 $110,000.00. This further means that in respect of the appellants other than James Moreton Brown the average net asset surplus would increase from about $235,000.00 to about $295,000.00. Further, the benefit which the others might receive would be less if James Moreton Brown were to receive special treatment. For example, if he were to receive a special grant of $100,000.00, and the balance were then to be divided equally between them with nothing going to the widow, then the four appellants could then expect only an additional $35,000.00 each. The court's jurisdiction under s. 41 of the Succession Act 1981 to grant relief is limited to the case where the intestate has failed to provide adequately for the claimant's proper maintenance and support, but as it has been explained, what is proper maintenance and support may well vary from case to case depending upon the size of the estate. In the case of very substantial estates, it is felt that a higher standard of comfort and security may be necessary in order that the maintenance and support be proper. However there is a limit upon this. The principles are, with respect, very well analysed and stated in the following passage from In the Will of Alfred Michael Anderson (O.S. No. 414 of 1981 Supreme Court of Queensland (Kelly J.) 30 May , 1 9 8 4 ) : - " The matter which first requires consideration is whether adequate provision has not been made from the estate for the proper maintenance and support of the respective applicants. The estate is very large and it is clear from the authorities that the size of the estate is a material consideration: see, for example, Bosch v. Perpetual Trustee Co. (1938) A.C. 463, at p. 478; Blore v. Lang (1960) 104 C.L.R. 124, at p. 128; Pontifical Society for the Propagation of the Faith v. Scales (1961-1962) 107 C.L.R. 9, at p. 19; Re Bodman (1972) Qd. R. 281, at p. 284; Re Buckland, -- 11 of 19 -- 11 deceased (1966) V.R. 404, at p. 415; Kleinig v. Neal (1981) 2 N.S.W.L.R. 532, at p. 540. In Re Buckland, deceased (supra), at p. 415, Adam J. said:- I consider the proper conclusion to be drawn from the authorities is that the court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. For a child, particularly a dependant daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom from anxiety for the future which for those not so circumstanced might well seem somewhat extravagant, but it should fairly come within the conception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance. ' In Kleinig v. Neal (supra), at p. 540, Holland J. said: 'One of the circumstances must be the size of the testator's estate because a man cannot be expected to give what he cannot afford but, if he can well afford it, he should provide adequately for those for whom the statute expects him to provide.' At pp. 540-541 the learned judge said: In my opinion, there is nothing in the terms of the statute or in the statement in Bosch's case [1938] A.C. 463, of the approach which the statute as there interpreted requires the court to make to each individual case that compels the court to take a narrow view of what may be permitted to constitute in an applicant a need for provision for maintenance, education or advancement in life. Nor do I think there is any warrant for isolating the question of the existence of a need from a consideration of the size of a testator's estate. If the court is to make a judgment as to what a wise and just testator ought to have done in all the circumstances of the -- 12 of 19 -- 12 case, it could not be right to ignore that the particular testator was a wealthy man in considering what he ought to have done for his widow or children in making provision for their maintenance, education or advancement in life. There are different levels of need for such things. In the case of maintenance and advancement in life they can range from bare subsistence up to anything short of sheer luxury. A desire to improve one's standard of living or a desire to fulfil one's ambition for a career or to make the fullest use of one's skills and abilities in a trade or business, if hindered or frustrated by the lack of the financial means required for the fulfilment of such desire or ambition, presents a need for such assistance and it would seem to me that it is open to a court to say, in the case of a wealthy spouse or parent who could have but has failed to provide such financial assistance, that as a wise and just spouse or parent he ought to have done so and to find, therefore, that in the circumstances of that case the will has failed to make adequate provision for the proper maintenance and advancement in life of the spouse or children who had such need.' The approach which should be adopted in the case of an adult son has been the subject of a number of pronouncements by the courts. In a much-cited passage, Fullagar J. in In re Sinnott (1948) V.L.R. 279, at p. 280 said: No special principle is to be applied in the case of an adult son. But the approach of the court must be different. In the case of a widow or an infant child, the court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to "maintain and support" himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the court under the Act.' · In their joint judgment in Mccosker v. Mccosker (1957) 97 C.L.R. 556, at p. 576, Dixon C.J. and Williams J. said: 'The broad proposition that an able-bodied son able to maintain himself in the future -- 13 of 19 -- 13 exactly as he has done in the past cannot hope to succeed in an application made under the Act cannot be sustained. Each case must depend on its own circumstances. The claim of such a son may well have to be relegated to a low order of priority where there are other competing claims, such as those of a widow or unmarried daughters, and the estate is of insufficient value to meet them all. The present contest is between persons all of whom are able-bodied sons and the estate is of considerable value.' In Scales' Case (supra), at p. 19, Dixon C.J. said: 'The "proper" maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is "adequate" must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions.' In the same case, at p. 24, Taylor J. in a dissenting judgment said:- Cases such as In re Sinnott (1948) V.L.R. 279; Mccosker v. Mccosker (1957) 97 C.L.R. 566; and Stott v. Cook (1960) 33 A.L.J.R. 447 make it clear that the fact that an applicant is an adult son does not necessarily mean that relief in applications of this character must be refused. But such cases present special difficulties and, of course, before relief can be granted it must appear that the circumstances are such that the applicant is, in the language of the Queensland Act, left without "adequate provision for his proper maintenance and support". But what is "adequate" and what is "proper" must be determined in the light of all the circumstances of the case . ' Although Taylor J. differed from the other members of the court as to the outcome of the appeal, this statement of principle nevertheless carries authority. It was referred to in Re Buckland, deceased (No. 2) (1967) V.R. 3, at p. 5, by Gillard J. who then went on to say: The relationship between an adult son and his father, the dependency of such son -- 14 of 19 -- 14 on his father, the son's special needs, theson's moral claim, if any, and all other surrounding circumstances as at the date of death of the testator must be investigated: see Coates v. National Trustees Executors & Agency Co. Ltd. (1956), 95 C.L.R. 494; [ 1 9 5 6 ] A . L . R . 7 3 9 ; Dun v . Dun ( 1 9 5 9 ) , 1 0 0 C.L.R. 361; [1959] A.L.R. 820.' In Hughes v. National Trustees, Executors & Agency Co. of Australasia Ltd. (1978-1979) 143 C.L.R. 134, at pp. 147- 148, Gibbs J., as he then was, referred to the passage from In re Sinnott (supra) which I have already set out and continued: 'More recent cases confirm the view there expressed: see Stott v. Cook (1960) 33 A.L.J.R. 447, at p. 448; Pontifical Societyfor the Propagation of the Faith v. Scales ( 1 9 6 2 ) 1 0 7 C . L . R . 9 , at pp . 1 9 , 2 4 ; Re Buckland, deceased [No. 21 [1967] V.R. 3; ReAdams, deceased [ 1967] V .R. 881. In some cases a special claim may be found to exist because the applicant has contributed to building up the testator's estate or hashelped him in other ways. In other cases a son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the .proper maintenance and support of the adult son must depend on all the circumstances - that is, on all the facts that existed at thedate of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts.' In Kleinig v. Neal (supra), at p. 541, Holland J. said: 'I find nothing in the terms of the statute or in the doctrine laid down by Bosch's case [1938] A.C. 463, to require the court in every case or any case to approach the claim -- 15 of 19 -- 15 of an adult son for provision out of his parent's estate for his maintenance and advancement in life with the a priori view that he will be unable to succeed unless he comes up with a need or claim that can be considered to be "special".' The learned judge dealt with the matter further at p. 543 in these terms: 'The circumstances of individual cases vary so widely, the terms of the statute are so general and the judgment which the court has to make as to jurisdiction is in its nature so broad that there is, in my opinion, no room for laying down a rule, rigid or otherwise, imposing a disability upon a specified class of applicant. I doubt very much whether a jurist as eminent as Fullagar J. would have intended to do so and I suspect that the passage in his judgment that is always relied upon has been pushed far beyond the point that Fullagar J. would have expected or intended. First, it is to be remembered that the claim in Re Sinnott [1948] V.L.R. 279, was by a daughter and the evidence was all directed to the relationship to her father and the financial circumstances of a daughter and therefore it may be right to treat the passage in question as obiter dictum. Be that right or not, the second thing is that Fullagar J. began his remarks by saying, "No special principle is to be applied in the case of an adult son". And thirdly, in referring to some special need or some special claim, he made it clear that he did so, "generally speaking".' With respect, I would consider that the view taken by Holland J. is supported by the authorities to which I have referred and in particular by the conclusion reached by Gibbs J. in Hughes' Case (supra), namely, that the question whether adequate provision has been made for the proper maintenance and support of an adult son must depend on all the circumstances in the sense which the learned judge there indicated." A minor warning must be uttered concerning this analysis which does not go to its validity but to its application. It is clear that almost all the statements collected are directed to a rebuttal of the proposition that an able-bodied adult child, particularly a son, has no claim unless he has a special claim. -- 16 of 19 -- 16 Consequently the thrust of all the discussion is by way of explanation as to how an adult child may have a claim, especially if the estate is very large. Consequently the discussion does not address the other side of the question, that is, the limits of such circumstances that would support a claim. When a child is already endowed with assets and receives a substantial inheritance from the estate, there is a limit to the claim that there should have been more, in other words, that the sum provided was not proper. That is really the question here, which is quite distinct from that to which the above dicta are directed. Nevertheless, subject to this caveat they are useful. Upon the favourable features of these principles, and even if all the facts upon which they rely are accepted and if all doubtful principles are resolved in their favour, it is clear that the appellants other than James Moreton Brown still cannot succeed. The court's powers are not exercised upon any bare standard of fairness as to the distribution of the assets of the estate among the relevant beneficiaries for the "award" must come fairly within the concept of Buckland (No. 2) (1967) V.R. 3. maintenance and support: Re It will not in effect write a fresh will for him: Re Duncan (1939) V.L.R. 355. Whilst the appellants' contributions and that of their mother towards the amassing of the estate and the modestly large size of that estate are certainly relevant considerations in the present case, the ultimate question is still tied to adequate provision for the proper maintenance and support of any such person within the larger meaning of that expr~ssion. This is always the essential issue notwithstanding that ·there may be variation in different -- 17 of 19 -- 17 cases in the determination as to what is proper maintenance and support, particularly where the estate is a large one and the competing interests are relatively few. In the present case, when their ages, standard of education, security of employment, assets and present inheritance from the estate are taken into account, then it cannot be said that those three appellants are inadequately provided for from an estate of this size because their inheritance will provide each of them with only an additional $110,000.00 rather than some rather larger sum. With what they will receive it is clear that they will each be so comfortably placed, with reasonable security against adverse contingencies of life, that it cannot be said that the court's power provided for by the Act is enlivened. That being so the appeal must fail. The position of James Moreton Brown has been excluded from the above conclusion because his position is manifestly different and, as it has been observed, it is certainly arguable on the material now before this Court that further provision should be made for him. The appeal should therefore succeed in respect of his claim. In the result, the appeal by Russell Peter Brown, Debra Ann Brown and Rodney William Brown should be dismissed and the appeal of James Moreton Brown should be upheld. The order below should be set aside to the extent to which it applies to his claim and the application to have it struck out should be dismissed with costs on a solicitor and client basis to be paid out of the estate. Because his success on the appeal was only because of the additional material advanced by him, the costs of the -- 18 of 19 -- \ ' 18 respondents to his appeal should be paid out of the estate on a solicitor and client basis both in respect of the application and of the appeal. The costs of the appeal by the other appellants will now require further argument. -- 19 of 19 --