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Supreme Court","@language":"en"}],"DateAvailable":[{"@value":"2015-06-03","@language":"en"}],"DateIssued":[{"@value":"[1889?]","@language":"en"}],"DigitalResourceOriginalRecord":[{"@value":"https:\/\/open.library.ubc.ca\/collections\/bcbooks\/items\/1.0222178\/source.json","@language":"en"}],"Extent":[{"@value":"2, 18 pages ; 26 cm","@language":"en"}],"FileFormat":[{"@value":"application\/pdf","@language":"en"}],"FullText":[{"@value":" \nIN THE\n Re ELLARD TRUSTS\nCASE ON APPEAL\n \nTHEODORE DATE, Q.C. \nSolicitor for Applicants. \nINDEX.\n20\nPage.\nStatement > \u2022 1\nWill 2\nOrder 20th November, 1885 9\nOrder 25th July, 1887 11\nOrder 8th August, 1887 12\nOrder 8th February, 1888 .. 12\nOrder 18th August, 1888 12\nOrder 17th June, 1889 13\nPetition of A. Smither 14\n30\n< On Appeal to the Divisional Court.\n10\nIn the matter of the trusts of the Will of James Ellard^ Ute of the city of New\nWestminster, deceased, and in the matter of the Trustee Act. 1850. and\nBetween\nROBERT DICKTSSON AND GEORGE TURNER,\nPlaintiffs,\nAND\nMART ELLARD, JAMES ELLARD, ANNIE ELLARD,\nSIDNEY ELLARD, ADA EIiLARD, REUBEN ELLARD,\n(apellants) JAMES WILTON, HARVEY .AND ESTHER\nHARVEY, his wife, (respondents)\nDefendants.\nSTATEMENT.\n. )\n30\nJames Ellard late of the City of New Westminster, d9seased, departed this life on or\nabout the 10th day of January, A. D. 1878, having first duly made and executed his last\nWill and Testament, dated the 26th day of June, A. D. 1873, and with two Codicils thereto\ndated the 28th day of May, A. D. 1877 and the 10th day of January, A. D. 1878,\nrespectively, whereby he appointen Robert Dickinson 'and George Turner Trustees and\nexecutors thereof.\nCSC*?\nPreviously to his death the said|testator*had carried on business at a dry^ goods\nmerchaut at the city of New Westminster under the naxie of James EUard*& Co.'\n_n the codicil to his,will be directed,,the said executors to carry on'said businessior\nthe benefit of his wife and children and to receive the profits thereof and in ^the first\nplace to pay to James Wilton Harvey in consideration of his managing said business\nand in further consideration of his wife minding ^his children and acting as housekeeper\nto them as hithe< to a sum equal to one fourth of the profits of said business Yearly. %yj\u00a3&\n40 On the 20th November, 1885, the Honorable Mr. Justice Crease made a Decree\ndischarging the said Robert Dickinson and George Turner as such Excutors and Trustees\nupon passing and taking certain acconnts and making certain enquiries as will more fully\nappear in the Dpcree itself whieh is printed on page herein.\nIn and by said Decree of the Respondent James Wilton Harvey was appointed\nReceiver and Manager of the business of the Testator which he in his life time carried\non under the name, style and firm of Ellard & Co.\nOn the 14th day of July, A. D. 1887, the Eull Court granted special leave to the\nAppellants to appeal from the said Decree.\nOn the 25th day f.f July, A. D. 1887, the said Appeal was heard and the Full Court\namended and varied the said Decree in certain particulars and inter alia ordered that\nnew Trustees may be appointed of the Testator's Will and thereupon the appointment\nof the Respondent, James Wilton Harvey as Receiver should cease.\nOn the 4th day of August 1889 au order was made by the Honorable Mr. Justice 20\nCrease declaring that said James Wilton Harvey ia entitled to draw for his services as\nmanager of the Estate oi said deceased a sum equal to one fourth of the gross profits of\nsaid business and that said James Wilton Harvey shall be entitled to pay himself out of\nthe said business a sum equal to one fourth of the gross returns or profits of said business from the death of said James Ellard.\nOn the 8th of February 1888 an order was made by the Honorable Mr Justice Crease\nappointing Thomas Cunningham and William Archibald Duncan trustees of the will of\nJames Ellard deceased in in place of George Turner and Robert Dickson who were discharged by order of 20th November 1885 and directing a referrence to the registrar to qq\nascertain .what amount is due to said James Wilton Harvey in respect of his one fourth\nshare of the gross profits of said business as mentioned in the order of 4th August 1887.\nThe registar appointed Mr. Alfred Smither to take the accounts and all motion to\nconfirm Mr. Smither's rep ort to the registrar The Honorable Mr. Justice Crease order,\ned that the sum of $5,842.24 be paid to said James Wilton Harvey whereas the said\nJames Wilton Harvey is largely indebted to'the said estate.\nThis application is for leave to appeal against the said orders and that the same\nand all proceedings thereunder may be set aside. This is the last Will and Testament of me, James Ellard, of New Westminster, British\nColumbia, Dominion of Canada, Trader. I hereby revoke all former and other Wills,\nand declare this to be my last Will and Testament, I give devise and bequeath unto\nHenry Elliott and Walter Blackie, both of New Westminster, their heirs Executors and\nadministrators, all my real and personal property whatsoever and whosoever situate upon\ntrust in the first place to sell all my personal and convert the same into money and to\nstand possessed of the moneys to arise from such sale and conversion and if any ready\nmoney of which I may die possessed, upon trust to pay all my just debts,\nfuneral and Testamentary expenses, and subject thereto to invest the said moneys upon\nGovernment or real securities in the province of British Columbia, or elsewhere, or in the\npurchase of the stock or fully paid up shares of any chartered or incorporated Company\npaying a dividend with power to my said trustees, or the survivor of them to alter, vary or\ntranspose the same funds or securities, for other funds or securities, of the same or a like\nnature, and I declare it to be my Will, that my said Trustee or Trustees shall out of the\nincome to arise from the said Trust funds, pay to my wife Emma, so long as she shall remain unmarried the sum of two hundred and forty dollars a year and in case the income to\narise from my said personal estate shall be insufficient for that purpose, then I direct that\nthe deficiency shall be made up out of the income of my real estate, and upon further trust\nto pay and apply the remainder of the income of my said real and personal estate unto my\nchildren, living at the time of my decease or born in due time afterwards share and share\nalike, and after the death or second marriage of my said wife to pay the principal of the trust\nmonies to my children in like shares, as, and when they shall severally attain the age of\ntwenty-one years, or marry whichever shall first happen, and I direct my Trustees or\nTrustee after the death or second marriage of my said wife or during her life after providing for the due and punctual payment of the hereinbefore mentioned sum of two hundred\nand forty dollars in their discretion to pay any part of the principal or income of the share\nof any of my said children in or toward the maintenance and educating of such child until\nhe or she attain the age of twenty-one years or marry, whichever shall happen, and as to my.real\nestate subject as aforesaid I direct that the same shall be divided between all my children\nin such proportion as will give to each child, share of equal value and I direct that the\nshares so given shall be conveyed to them on their severally attaining the age of twenty-\none years. I further direct that my said Trustees or Trustee during the minority of my\nchildren respectively shall defray all taxes and charges which may be imposed on the said real estate by law out of any monies in their hands as it is my wish that the said real estate\nshall come to my children free and unincumbered. I further empower my said Trustees\nor Trustee during the minority of my children to lease all or any part of my said real\nestate for any term of years, not exceeding five years, in possession on such terms and\nconditions as to my Trustees or Trustee shall in their discretion think advisable, and I\ndeclare that the said Trustees or Trustee hereinbefore named or either of them, or any\ntrustee or trustees to be appoined as hereinafter is mentioned shall die or be absent from\nthis Province for more than twelve calendar months at one time or be desirous of being\ndischarged from, or becoming incapable to act in the trusts of this my Will, then it shall\nbe lawful for the surviving or contiluing trustee for the time (and for this purpose any retiring trustee shall be considered a continuing trustee) or for the Executors or administrators the last surviving or continuing trustee shall appoint any other person or persons to\nbe trustee or trustees in the place of the trustee or trustees so dying or being absent from\nthe Colony, or desiring to be discharged or becoming incapable to act as aforesaid, and\nupon every such appointment the said trust premises shall be conveyed so that the same\nmay become vested in the new trustees jointly with the surviving or continuing trustee or\nsolely as the case may be.\nAnd I declare that the trustees or trustee of this, my Will, shall be chargeable only with\nsuch monies as they shall respectively actually receive and shall not be answerable, the one for\nthe other of them, or for any banker, broker or other person in whose hands any of the\ntrusts monies shall be placed, nor for the unsufficiency of any stocks funds or securities nor\nfor the involuntary losses, and that the said trustees shall reimburse themselves or himself\nout of any monies which may come to them or his hands under the trust aforesaid all costs,\ncharges and expenses which he or they may incur or be put unto in or about the execution\nof the aforesaid trusts or any of them, and I appoint Henry Elliott, and Walter Blackie,\nExecutors of this WTill and guardians of my children. I n witness whereof I have hereunto\nset my hand at Victoria, British Columbia, this twenty-sixth day of June, A. D., 1873.\nSigned by the testator in our presence, who in\nhis presence and in the presence of each\nother all being present at the same time\nhave hereunto set our hands at witnesses.\n\"ROBERT JACKSON,\" Victoria, V. I.\n\"THOS. H. WILLIAMS,\" V. I.\n\"JAMES ELLARD.\" trea\n\"C.\" This is the paperwriting marked \"C,\" referred to in the affidavit of Ali\nSmithers, sworn before me this 24th day of June, A. D. 1889.\nW. NORMAN BOLE.\nI, James Ellard, hereby revoke the appointment of James Cunningham as one of my\nExecutors, which appointment was made in the Codicil to my last Will, and I hereby appoint Robert Dickinson as one of my Executors in his stead. My Executors being George\nTurner, of New Westminster, Engineer; and Robert Dickinson, of New Westminster, of\nLegislative Assembly; and whenever said lames Cunningham's name occurs in said Codi-\ncil the name Robert Dickinson is to be deemed inserted in his stead, in all other respects I\nhereby confirm said Codicil.\nSigned \"James 10th January, 1878, Ellard,\" as a further\nCodicil to his Will in the sight and presence of us present at the same time, who in Testator's sight and pres- \"JAMES ELLARD.\"\nence and in the sight and presence of each other hereunto attach our names as witnesses.\n\"CHARLES T. WOODS.\"\n\"W. NORMAN BOLE.\"\n\"E.\"\nThis is one of the Exhibits referred to in the affidavit of W. Norman Bole, sworn\nbefore me this 19th January, A. D. 1878.\n'A. ROCKE ROBERTSON.\"\nFiled 28th January, 1878.\n\"CHARLES G. LEGGATT, A. S. R.\"\nWhereas I, James Ellard, of New Westminster, in the Province of British Columbia,\nhave made and duly executed my last Will and Testament in writing, the date of which I\ndo not recollect, but which is now in the custody of Messrs. Drake & Jackson, Solicitors,\nVictoria, Vancouver Island; Now, I do hereby declare this present writing to be a Codicil\nto my said Will, and I direct the same to be annexed thereto and taken as part and explanatory thereof, hereby revoking any clauses or devises in said Will which are contrary or\nrepugnant to this Codicil, and whereas by my said last Will I have appointed Walter\nBlackie and Henry Elliott Executors thereof, now I hereby revoke said appointment and I\nappoint James Cunningham, of New Westminster, Member of Parliament, and George\nTurner, of New Westminster, Civil Engineer, Executors thereof and of this the Codicil\nthereto. 4\nWhereas I have for sometime past carried on the business of a draper and general\ndry-goods merchant at my one store sitnate at Columbia Street, New Westminster, and\nwhereas I am desirous that the said business should be carried on after my decease for the\nbenefit of my wife and children, father and mother, in manner hereinafter mentioned.\nNow, therefore, I do hereby give and bequeath my said business as a draper and general\ndry-goodt merchant, and all my interest therein, and all stock and effects now or hereafter\nto be employed therein, and all moneys and debts which shall be due and owing to me at\nthe time of my decease, for and on account of the said business or connected with the\ncarrying on of the said business, unto the said James Cunningham and George Turner,\ntheir executors or administrators, upon trust. That the said business shall be carried on\nas heretofore under the title of James Ellard and Company, upon trust, to receive the\nprofits thereof, and in the first place pay thereout to my brother-in-law, James Harvey, in\nconsideration of his managing on said business, and in further consideration of he and his\nwife minding my children and his wife acting as housekeeper for them as hitherto, in\nlieu of salary, a sum equal to one-fourth of said profits yearly and every year while he so\ncontinue to act as manager of said business, but in case he refuses, neglects or declines so\nto do, or in case he and his wife do not mind my children, or she neglect to act for\nthem during minority as housekeeper as hitherto. Upon trust to employ sume proper and\nsuitable person to manage said business and pay him such salary proportionate to the\nprofits, but in no case exceeding one-sixth as to such trustees shall seem meet, and in case\nsaid lames Harvey shall at the time of his decease be so acting as the manager of my said\n\u25a0J J O O J\nbusiness, then upon trust to pay to his wife, my sister, a yearly sum equal to one-fourth of\nsaid profits of said business for her sole and separate use and after her death upon trust to\ndivide said interest among her surviving children and in case my said sister shall have no\nchildren her surviving, then upon trust to stand possessed of said fourth share of the capital,\nand profits of said business upon trusts hereinafter set forth with regard to the remaining\ncapital and profits of said business upon trust, to pay out of the proceeds or profits of said\nbusiness such sum as is now payable for the maintenance of my wife, Emma Ellard, who\nis now an inmate of a lunatic asylum at Hitchim, Hertfordshire, England, during her na-\ntural life and upon trust to pay by way of annuities to my father, Thomas Ellard, Senior,\nthe sum of one hundred dollars yearly, said annuity to be continued to my mother, Mary\nEllarad, in case she survives him, always provided the profits from said business are not less\nthan they may be at the time of my decease, when and in such case said annuity shall be proportionally reduced, and I hereby declare it to be my will that in case said James\nHarvey shall cease, refuse, neglect, or decline to carry on said business he and those\nclaiming under him shall forfeit all claim or benefit under this Codicil. And I do hereby\ndeclare and direct that the said James Cunningham and George Turner, their heirs, executors and administrators shall from and after my decease stand and be possessed of and\ninterested in my said business upon the trusts following, that is to say upon trusts for my\nsix children, Mary Ellard, James Ellard, Ann Maria Ellard, Sidney Ellard, Ada Ellard,\nRuben Ellard, in equal shares, the share or respective shares of each of them as shall be\nunder the age of twenty-one years and unmarried at my decease, to be vested in and transferable to him or them as and when he, she or they shall attain that age if sons or marry\nif daughters which shall first happen if daughters so as such marriage be had with the consent and approbation of said James Cunningham and George Turner, or respective shares\nof such of them in said business as shall attain the age of twenty-one years if a son or\ntwenty-one years or day of marriage.\nJ J J O\nSaid share shall not be paid till after the expiring of one year from day of marriage,\nsame to be for the sole and separate use of such child, if a daughter free Irom the debts\nand control of her then husband, or any future husband and in case of a son, said share not\nto be paid till after giving twelve months notice of withdrawl to said lames Cunningham\nI -O o JO.\nand George Turner, but always provided such notice cannot be given by any son till he\nattains the age of twenty-one years. And I desire that in case any one or more of my said\nchildren shall die under the age of twenty-one years, if a son or before day of marriage, if\na daughter or shall marry without such consent as aforesaid, then as well as the original\nproportion or portions, provided for each such child so dying as every other portion which\nhe, she or theyr shall by virtue of this codicil and said Will have taken by way of survivorship or accruer of and in the said business shall from time to time accrue and belong, and\nbe in trust for the others or other of said children in equal shares, and shall become vested\nin and payable or transferable to my said children as and when their original portion or\nportions become vested and payable as aforesaid, and with the respect to the profits of the\nsaid business subject as aforesaid upon trusts to invest the balance thereof in buildng two\ngood substantial brick houses upon the plot of ground adjoining my new shop, Columbia\nStreet, New Westminster when the profits shall- amount to a sufficient sum to build same.\nAnd I declare it to be my Will that such of my sons as wish to enter said business shall be\ntaken into same upon attaining the age of sixteen years, and such son so learning the busi-\n\\ Paee 6 missing from document Page 6 missing from document 7\neducation of my said children until if sons they shall attain the age of twenty-one years, or\nif daughters shall attain the age of twenty-one years provided that they have not married\nwithout consent of my said Executors, or day of marriage in such marriage take place with\nthe consent of my said Executors as aforesaid, and when and as soon as my said sons shall\nattain their respective ages of twenty-one years, and my said daughters shall have attained\ntheir respective ages of twenty-one years, provided they have not in the meantime married\nwithout the consent of my said Executors, or their respective days of marriage\nwhen such consent was had and obtained then upon trust to pay each son so attaining\nthe age of twenty-one years or daughter attaining the age of twenty-one years or day of\nmarriage, subject aforesaid his or her equal share of the trust money, stocks, funds and securities in or upon which the same shall be invested into and to the use of such son or\ndaughter for his or her own use and benefit, in case of -a daughter same to be for her sole\nuse and benefit free from the debts and control of any husband she may then or thereafter\nhave. Provided always it shah be lawful lor my said Executors at any time during the\nminority of my said sons to dispose of the share or shares, portion or portions of such of\nmy said sons, not exceeding one-third of his other share or shares, in or for the placing of.\nhim or them in any professional business or employment or for his or their instruction\ntherein or otherwise for his benefit or advancement in the world, and I declare that the\nshare or shares of such of my children as may die before same becomes payable to him,\nher or them under the provisions of this Codicil, or may be forfeited as aforesaid, shall be\ndivided share and share alike among my surviving children, and I direct my said Executors, James Cunningham and George Turner, when the youngest of my children shall attain the age of twenty-one years, to stand possessed of the rent of the brick house now\nbuilt and the two which are to be built upon trust to pay the rents, issue and profits thereof share and share alike to my children as aforesaid, with liberty to them to sell said house\nto any of my children who may be able to by same.\nNext my new shop in Columbia Street, New Westminster, and to apply the monies\narising from such sale according to the foregoing trusts of this Codicil, and I hereby revoke\nthe specific disposition of my real property contained in my Will, now in the custody of\nDrake & Jackson, and I hereby declared that the receipt or receipts of the said James Cunningham or the survivor of them and of the Executors and Administrators of such survi-\nO\nvor shall be an effectual discharge for any sum or sums of money that shall become payable to him or them under or by virtue of the trusts aforesaid and the person or persons so 8\npaying such money or moneys shall not be obliged to see to the application thereof or be\nanswerable for any misapplication or non-application thereof or of any part thereof. And\nI hereby ratify and confirm my said Will save where the same is hereby revoked and\naltered as aforesaid, In witness whereof I have to this Codicil set my hand and seal this\ntwenty-eighth day of May, 1877.\nSigned by the said Testator as a Codicil to his last Will\nand Testament in the sight and presence of us present at the same time, who in Testator's sight and presence and in the sight and presence of each other have\nhereunto subscribed our names as witnesses.\n\"CHARLES T. WOODS,\" Archdeacon of Columbia.\n\"W. NORMAN BOLE,\" Solicitor.\n\"JAMES ELLARD.\"\nSEAL |*n ttje Supreme \u00a9ourt of $riti#h \u00a9olumbia.\nIn the matter of the trusts of the Will of James Ellard, late of the City of New Westminster, deceased, and in the matter of the Trustee Act of 1850.\nUpon hearing Mr. Bole of counsel for George Turner and Robert Dickinson, the\nexecutors and trustees under the Will of the late James Ellard, Mr. Eberts of counsel for\nMr. A. J. McColl, the Guardian ad litem of Mary Ellard, fames Ellard, Ann Maria Ellard,\nSydney Ellard, Ada Ellard, and Ruben Ellard, the children of the said James Ellard, and\nMr. Corbould of counsel for James Wilton Harvey and Esther Harvey his wife, arid upon\nreading the petition of the said George Turner and Robert Dickinson filed the 20th day of\nNovember, 1885, and the documents therein referred to, and on reading the affidavit of\nGeorge Turner sworn the 18th day of November and filed the 20th day of November,\n1885, and the exhibits therein referred to, and on reading the affidavit of Robert Dickinson sworn the 18th day of November, 1885, and filed the 20th day of November, 1885.\nThis Court doth declare that the trusts of the Will and Codicils thereof of the late\nJames Ellard, the testator in the Petition named ought to be performed and carried into\nexecution subject to this decree, and doth order and decree the same accordingly and doth\norder that the said George Turner and Robert Dickinson be discharged from the duties\nimposed upon them as executors and trustees under the Will and Codicil thereto of the\nlate James Ellard deceased upon passing and having taken and made the following accounts\nand enquiries, that is to say:\n1. An account of the personal estate not specifically bequeathed of the said James\nEllard the testator in the petition named come to the hands of the said George Turner\nand Robert Dickinson the Executors of his said Will and Codicil or any or either of them\nor to the hands of any other person or persons by the order or for the use of the said Executors or either of them and especially with regard to the business carried on by them under said Will and Codicil at New Westminster under the name and style of Ellard and\nCompany, and all receipts, disbursements, outlay expenditure, loss and profits, and all\nprofits and losses arising therefrom or connected therewith.\n2. An account of the Testator's funeral expenses.\n3. An account of the Testator's debts.\n4. An account of the legacies and annuities given by the Testator's Will and Codicil.\n5. An inquiry what parts if any of the Testator's personal estate are outstanding and\nundisposed of. IO\n6. An inquiry as to what real estate the Testator was seised of or entitled to at the\ntime of his death,\n7. An account of the sales, rents and profits of the Testator's real estate.\nAnd all monies received by the said George Turner and Robert Dickinson or any or\neither of them, or by any other person or persons or by the order or for the use of them\nthe said Executors or any or either of them in respect thereof. The said accounts and inquiries to be taken before the Deputy Registrar of the Supreme Court at New Westminster copies thereof to be also filed with the Registrar of the Supreme Court at Victoria.\nLet the said Executors be allowed the sum of $100 each as an honorary recognition of\ntheir services in successfully carrying out the Trusts of said Will and Codicils.\nAnd it is hereby declared that Esther Harvey, wife of James Wilton Harvey in the\nPetition herein named is entitled to the sum of three thousand six hundred dollars in lieu\nand discharge of her contingent interests under said will and codicils, the same to be paid\nand payable out of the said business of James Ellard and Company in six equal annual instalments of six hundred dollars each by the receiver hereafter appointed, or by the receiver for the time being. Same to be paid to her on the 20th day of November in each\nand every year during said term of six years, the first of said instalments to be paid on the\n20th day of November, 1886, her receipt to be sufficient discharge to the receiver for payment of the same. Let lames Wilton Harvey, the manager named in the said will and\ncodicil be appointed receiver to carry on and manage, under the directions of this Court,\nthe business of James Ellard and Company at New Westminster, to receive the rents and\nprofits of the real and household estates, and to collect and get in the outstanding personal\nestate of James Ellard, the testator, named with full power and authority to do all matters\nand things requisite and necessary to the effectual carrying on and managing the said business of James Ellard and Company writh power for that purpose, to contract debts, purchase\nand sell goods, sign, draw, and endorse promissory notes and bills of exchange, as fully\nand effectually as the said Executors could or might have done under said will and codicil\nat a salary of two thousand five hundred dollars per annum payable out of the profits of\nsaid business ; also the free use of while he continues receiver, as a dwelling for himself and\nfamily and the children of the said James Ellard of that part of the brick building wherein\nthe business of James Ellard and Company is carried on now used as a dwelling, and let\nsuch receiver from time to time pass his accounts at least once a year.\nLet the costs of all parties appearing on the petition be taxed and paid out of the estate. Reserve leave to all parties to apply.\n[Signed] HENRY P. PELLEW CREASE,\/\nDated, Saturday, 20th November, 1885. 11\n\u00a71 tire Supreme \u00a9curt of $ritt#h \u00a9oliimbta\nIn the matter of the trusts of the Will of James Ellard, late of the City of New Westminster, deceased, and in the matter of the Trustee Act of 1850.\nAnd between Robert Dickinson and George Turner, Plaintiffs ;\nAnd Mary Ellard, James Ellard, Annie Ellard, Sidney Ellard, Ada Ellard, Ruben Ellard,\nJames Wilton Harvey and Esther Harvey his wife, Defendants.\nBy Amendment,\nThis cause coming on this day to be heard before the full Court by special leave to\nappeal by Thomas Clive Atkinson and Mary his wife, and James Ellard, Ann Maria\nEllard, Sidney Ellard, Ada Ellard, and Reuben Ellard, infants by T. C. Atkinson, their\ntnext friend on the 25th day of July 1887, in the presence of Mr. Drake, Q.C. of Counsel\nfor the applicants, Mr. Pooley, Q.C. of Counsel for James Harvey and Esther Harvey, Mr.\nBole Q.C. of Counsel for George Turner and Robert Dickinson, and upon opening and\ndebate of the matter, and hearing the order dated the 20th day of November 1885, and\nwhat was alleged by Counsel on both sides and upon motion of Mr. Pooley Q.C, that the\ntitle be amended by adding to the title the parties to the action and upon reading the Writ\nof Summons in this action, and the probate copy of the Testator's Will and Codicils, and\nthe affidavits and exhibits filed herein and it being alleged and admitted by the Respondents\nthat the Petition mentioned in the said order now under appeal and all other documents in\nthe case have been lost, and upon reading the Registrar's certificate that such documents\nhave never been filed and it being admitted by all parties that the conduct of the said James\nHarvey is not impeached, and all parties desiring that he should continue as manager as in\nthe said Will mentioned. This Court doth order that the title of the said order be amended\nby adding thereto, \"and between Robert Dickinson and George Turner, plaintiffs, and\nMary Ellard, James Ellard, Annie Ellard, Sidney Ellard, Ada Ellard, Reuben Ellard, and\nJamer Wilton Harvey, and Esther Harvey, defendants. This Court doth further order\nthat the order of 30th November 1885, be varied by omitting so much thereof as directs\nthat the sum of $100 00 each be paid to the Executors as an honorary recognition of their\nservices and by omitting the declaration that Esther Harvey is entitled to the sum of $3,-\n600 in lieu and discharge of her contingent interest under the said Will and Codicils, and\nby omitting the declaration that James Wilton Harvey is entitled to a salary of $2,500 per\nannum out of tha profits of the said business, and to the free use of the Testator's house\nand dwelling for himself and family. And this Court doth further order that an enquiry f\n12\n12(1)\n10\n(STYLE OF CAUSE)\nSaturday 18th August 1888.\nUpon hearing Mr. Bole Q. C. of Counsel for the plaintiffs, Mr M. W. T. Drake,\nQ. C. of Counsel for the defendants except James Wilton Harvey and Ester Harvey his\nwife and upon hearing Mr C. E. Pooley Q. C. and Mr A. J. MeColl of Counsel for James\nWilton Harvey and upon reading the Report of Alfred Smithers dated the fourteenth day\nof May 1888 made by him by consent instead of the Registrar of the Supreme Court I\ndo declare that James Wilton Harvey is entitled to receive from the Estate of the late\nJames Ellard for his share of one fourth of gross returns or profits from the death of the\nsaid James Ellard up to the thirty first day of December 1887 the sum of $5842.24\nand I do order that the said sum of $5842.24 be paid to the said James Wilton Harvey\nout of the estate of the said James Ellard.\nLet the costs of all of all parties be taxed and paid out of the Estate.\n(Signed) HENRY P. PELLEW CREASE, J.\n20\n30\nm m N\"\u00abyg| |ra xi.unidb v^unhingnam and William Archibald Duncan, be and they\nare hereby appointed Trustees of the Will of the said James Ellard, deceased, in the place 12\nbe had before the Registrar of this honorable court what the profits of the said business\nof Ellard & Co. have been since the Testator's decease, and showing the outgoing therefrom. And it is further ordered that new trustees appointed of the Testator's Will and\nthereupon the appointment of the said James Wilton Harvey as receiver shall cease. And\nit is further ordered that the costs of all parties of and consequent hereon and of the motion\nfor leave to appeal the taxed and paid out of the said estates.\n\u25a0Kill itt^^W STYLE OF CAtlSE. vj&kfy;* -\nThursday, 4th day of August, 1887.\nUpon hearing Mr. McColl of counsel for James Harvey and Mr. C. E. Pooley, Q.C.\nof counsel for Esther Harvey, and Mr. M, W. T. Drake, Q. C,, of counsel for Mary\nEllard, now Mary Atkinson, and for the other defendants above mentioned other than the\nsaid James Wilton Harvey and Esther Harvey, by Thos. C. Atkinson their next friend,\nand the said Thos. C. Atkinson. And upon reading the draft copy of the order of the full\nCourt made herein on the 25th day of July, 1887, and upon reading the Will of James\nEllard deceased, I do order that the said James Wilton Harvey is entitled to draw for his\nservices as manager of the estate of James Ellard deceased, a sum equal to one-fourth part\nof the gross return or profits of the said business and that the said James Wilton Harvey\nshall be entitled to pay himself out of the said business a sum equal to one-fourth of the\ngross returns or profits of the said business from the death of the said James Ellard, that\nthe costs of all parties of and consequent upon this application as been solicitor and client\nbe taxed by the proper office and paid out of the Estate.\n[Signed] HENRY R PELLEW CREASE, J.\nSTYLE OF CAUSE.\n(BEFORE THE HONORABLE MR. JUSTICE CREASE,)\nWednesday the 8th day of February, A. D., 1888.\nUpon reading the Petition filed herein on the 13th day of January 1888, and upon\nreadino- the Will and codicils of the said lames Ellard, and upon reading the order of the\n20th day of November 1885, as varied by the order of the Full Court of the 25th day of\nJuly 1887, and the order of the 4th day of August 1887, and upon hearing Mr. Drake, Q.\nC, for the Petitioners, the Cestuis que trust and Mr. Pooley, Q.C, for James Wilton\nHarvey and Esther, his wife.\nIt is ordered that Thomas Cunningham and William Archibald Duncan, be and they\nare hereby appointed Trustees of the Will of the said James Ellard, deceased, in the place of Goorge Turner and Robert Dickinson, who were discharged by the said order of the\n20th November 1885.\nAnd it is further ordered that the said James Wilton Harvey, the receiver do pass his\naccounts before the Registrar of this Court forthwith and thereupon be discharged.\nAnd it is further ordered that it be referred to the Registrar to ascertain what amount\nis due to the said James Wilton Harvey in respect of his one-fourth share of the gross\nprofits of the said business as mentioned in the said order of the 4th day of August 1887,\nand that the said James Wilton Harvey, be paid the sum so ascertained to be due to him\nforthwith out of the personal or real estate of the said testator by the Trustees hereby appointed.\nAnd it appearing that there are liabilities now existing in respect of the said business,\nit is declared that the Trustees here be appointed may and they are hereby authorised\nforthwith to raise by way of mortgage of the Testators real estate a sufficient sum tO pay\nthe said liabilities including the amount due to the said James Wilton Harvey as aforesaid\nand to carry on the business of the said Testator.\nAnd it is further ordered that the costs of all parties as between Solicitor and Client\nbe taxed and paid out of the said estate.\n\"HENRY P. PE-LLEW CREASE.\"\/,\nSTYLE OF CAUSE.\nUpon the application of Mr. Bod well of counsel for T. C. Atkinson, next friend of the\nabove named Annie Ellard, Sydney Ellard, Ada Ellard, and Ruben Ellard, infants. And\nupon reading the petition of the said infants presented by their said next friend whereby it\nappears that said Annie Ellard, Sidney Ellard, Ada Ellard, and Ruben Ellard-are infants\nand that Alfred Smither of the City of New Westminster, gentlemen, is a proper person\nto be appointed their guardian and has no interest in this suit adverse to the said infants\nas by an affidavit of Thos. C. Atkinson made this day appears. And upon reading the\nsaid affidavit and the two affidavits of T. C. Atkinson of the 14th instant. This Court\ndoth order that the said Alfred Smither be assigned the guardian of the said infants Annie\nEllard, Sydney Ellard, Ada Ellard and Ruben Ellard by whom they mny defend this suit\nand make such applications to or take such proceedings in this Court as they may be advised.\nDated the 17th day of June, A. D. 1889.\nMATT. B. BEGBIE, 1 J. J IJIIIU.-H-,\n14\nSTYLE OF CAUSE.\nTo the Honorable the Judges of the Supreme Court of British Columbia sitting as a Full\nCourt. ;Si?\nThe humble petition of Annie Ellard, Sidney Ellard, Ada Ellard, and Ruben Ellard,\nall of the City of New Westminster, by Alfred\" Smither, of the same place, their Guardian\nad litem- appointed under an order of Court, dated the 15th day of June, 1889 ; Sheweth\n\u25a0i:: That your petitioners are children of James Ellard, late of New Westminster, B.\nC, deceased, who died on or about the roth day of January, 1878, and are all infants\nwithin the age of twenty-one years.\n2. That at the time of the decease of the said James Ellard, he was engaged in business at New Westminster, as a dry-goods merchant, under the firm name of James. Ellard\n& Company. The children of the deceased who surviued him are your petitioners,,and the\ndefendants Mary and James. The said defendant James Wilton Harvey intermarried before the beath of the said James Ellard, with a sister of the said James Ellard.\n3. By the terms of the last Will and. Testament of said James Ellard, the trustees\ntherein mentioned, the said plaintiffs, Robett Dickinson and George Turner were directed\nto carry on the business of James Ellard and Company upon trust to receive the profits\nthereof and in the first place to pay thereout to the said James Wilton Harvey, in lieu of\nsalary, and in consideration of his managing said business and of his wife and himself assuming the care and nurture of the remaining children of the said testator during their\no o o\nminority, a sum equal to one-fourth of. said profits yearly and every year while he so continues to act as manager of said business. Your petitioners for greater certainty crave leave\nto refer to the said Will. \u00a711\n4. That on the 4th of August, 1887,, an order was made in this cause by the Honorable Mr. Justice Crease, directing that James Wilton Harvey, one of the defendants, be\nentitled to draw for his services as manager of the estate of James Ellard, a sum equal to\none-fourth part of the gross returns or profits of the said business from the death of the\nsaid James Ellard, and that the costs of all parties of and consequent upon said application\nas between solicitor and client be taxed by the proper officer and paid out of the estate.\n5 By. another order of the Honorable Mr. Justice Crease dated the 8th February,\n1888, it was directed that an account should be taken of what was due said James Wilton\nHarvey in respect of his one-fourth share of the gross profits of the said business as mentioned in the said order of the 4th day of August 1887. i5\n6 By a further order made by the Honorable Mr. Justice Crease, dated Auguet 18th\n1888, it was declared that the said James Wilton Harvey was entitled to receive from the\nestate of the said James Ellard for his share of one-fourth of gross returns or profits from\nthe death of the said James Ellard. up to the 31st December 1887, the sum of $5,842,24,\nand it was further ordered that the said sum of $8,842,24 be paid to the said James Wilton\nHarvey out of the estate of the said James Ellard, and that the costs of all parties be taxed\nand paid out of the estate.\n7 That the said last mentioned order besides proceeding upon an erroneous principle\nwas based upon an error in \u25a0uduwilinR], sucnerror being the placing of a sum of $10,770,48\non the wrong side of the account.\n8 You Petitioners were not represented upon the applications upon which the said\norders or either of them were made.\n9 Your Petitioners further say that under eolor of the said orders large sums have\nbeen retained out of the estate of the said James Ellard by the said James Wilton Harvey\nthe retention of which moneys is not authorised or provided for by the last Will and Testament of the said James Ellard deceased. Your Petitioners humbly submit that the said\norders are erroneous and prejudicial to your Petitions.\nYour Petitioners humbly pray for leave to appeal against the said orders, and that the\nsame and all proceedings taken thereunder may be discharged and set aside, and that the\nsaid James Wilton Harvey may be ordered to account for all moneys received or retained\nby him out of the estate of the Testator beyond the moneys authorised to be paid to or retained by him under the Tastator's will. And your Petitioners will ever pray, etc,\n\"THEODORE DAVIE,\"\nCounsel of Petitioners.\nTo the said Robert Dickinson and George Turner. To James Wilton Harvey and\nEsther Harvey, and to T. C. Atkinson and Mary his wife, and to James Ellard.\n1 =5\nmm\n\u25a0hsmh\nmwwi\n^fc*\nH the Jfettjirettie ^ftmrt a\nttmbuL\nELLAKD\nv.\n10\nELLARD\n20\nSaturday, 18th August, 1888.\nI have considered the arguments of counsel, and the report of Alfred Smithers, the\nAccountant, (of the 14th May, 1888) who was appointed to ascertain what sum one-fourth\nof the gross returns or profits of James Ellard and Company, between the date of James\nWilton Harvey's appointment as Manager, and the 31st December, 1887 would amount to,\nto enable the order of the Court of the 4th August, 1887 to he- carried out in favor of\nJames \"W\". Harvey the Manager.\nMr. Smithers seems not to have clearly apprehended the extent of the duty he was\nby the consent of both parties, called on to discharge, and to have experienced a difficulty\nin determining the meaning of the words \"gross profits\" and from tnis cause gave himeelf\na quantity of very unnecessary trouble.\nHad tht) order of Court of the fourth August, 1887 been shewn to him, he would\nthere have read the words \"Gross returns or profits\" made since the death of the said 3.0\ntestator adding \"and of the amount received by the said J. W. Harvey and Esther\nHarvey.\"\nThe meaning of the phrase \"gross returns or profits,\" so common in legal documents\ndealing with partnership or firm accounts is clearly laid down in \"Lindley on partnership,\"\n5th Ed. Vol. 1., p p. 8 and 9 who says:\n\"The actual or gross returns obtained by advances obviously include profits, if profits\nhave been made. But those returns do not include losses, if losses are incurred ; for\nlosses are excess of advances over the returns and come out of the advances, not out of ^n\nthe returns. Heneu persons who share gross returns necessarily share profits, but they\ndo not, by sharing the returns, share losses ; for these fall entirely on those making the\nadvances.\"\nMoreover although a division of gross returns is a division of profits, if there are\nany, it is so only incidentally and because such profits are included in what is divided.\nIt is not a division of profits as such; and under an agreement for a division of gross\nreturns whatever is returned must be divided whether there be profit or not.\n\u2014\u2014i- \u25a0B\n^^\n17\nOf Mr Smithes'skill and rectitude as an Accountant, both sides spoke favorably; so\nthe mistakes he made in attaining the desired end may be attributed to something\nerroneous in the instructions he received: although I do find mistakes of his own in his\nanalysis of the accounts, which were unnecessarily elaborate such as the $320.00 damages\npaid b\\ an insurance Company for non-delivery of certain goods in transit the chargefor\nInsurance Dress-making and the like which belong to the expenses of the business,\nwith which the gross returns or profits have nothing to do.\nI have thought it right to consult with more than one accountant in this matter; and\nhave been struck by the decided proclivity of each of these gentleman to work out the\naccount of tbe gross profits as if it were one of net profits. This tendency crops out on all\noccasions and necessarily affects the accuracy of their conclusions. *\nBy the assistance however, derived from tbe various sources before me, I have at\nlength at a result, which fairly carries out Lord Justice Lindley's definition in ascertaining the gross returns required in this case.\nTo effect this we have first to ascertain the gross proceeds of sales from the testator\nJames Ellard, to the 31st Decemher 1887. Next, in order to ascertain the cos* of the\ngoods sold in that time, we have to find tbe value'of the goods which Harvey took over\nas Manager; and to those add the cost of goods since purchased by him; less any balance\nunpaid thereon.\nFrom the sum thus arrived at, we have sfciljl to deduct the cost of any goods\nremaining still ou hand on the 3\u201est December 1887.\nThen by deducting the result thus obtained from the .gross proceeds of sale first\nstated, we shall get a sum which constitutes the gross returns or profits up to 31st\nDecember 1887. And when from this we have deducted any sum unaccounted for in 30\nMr. Harvey's accounts, we shall have the balance of \"gross returns or profits\" up to tbe\nend of 1887, of which one fourth is to be credited to Mr Harvey; and this is what the\nAccountant was employed to get, but failed to ascertain.\nStated in figures the account would stand thus:\nProceeds of sales during the prescribed interval $260,800.58\nThe cost of goods taken over by Harvey when he became manager. .$19,882.31\nThe cost of goods subsequently purchased by him $194,305.27 less\n$10,770.48 unpaid thereon 183,534.79\n$203,417.10\nDeducting the cost of goods on hand 26,615.18\n 176,801.92\nLeaves , $83,998.66\nDeduct unaccounted for 1,058.60\n$82,940.06\n1 h\u2014 =\n18\nOf which Harvey's one quarter share $20,735.01\nThe sums admitted by him are as follows:\nReceived on account to end of year 1887 $14,292.77\nAmount paid Mrs. Harvey 600.00\n $14,892.77\n$5,842.24\nThe sum claimed by Mr. Harvey as balance and which I now order to be credited to him\nup to the 31st December 1887 in account with the estate and under the Will of James\nEllard deceased.\n(Signed) HENRY P. PELLOW CREASE, J.\nj J ","@language":"en"}],"Genre":[{"@value":"Legislative proceedings","@language":"en"}],"Identifier":[{"@value":"spam19577","@language":"en"},{"@value":"I-0820","@language":"en"}],"IsShownAt":[{"@value":"10.14288\/1.0222178","@language":"en"}],"Language":[{"@value":"English","@language":"en"}],"Notes":[{"@value":"Page 6 missing in print.
Other Copies: http:\/\/www.worldcat.org\/oclc\/606326456","@language":"en"}],"Provider":[{"@value":"Vancouver : University of British Columbia Library","@language":"en"}],"Publisher":[{"@value":"[Victoria] : [publisher not identified]","@language":"en"}],"Rights":[{"@value":"Images provided for research and reference use only. For permission to publish, copy, or otherwise distribute these images please contact digital.initiatives@ubc.ca.","@language":"en"}],"SortDate":[{"@value":"1889-12-31 AD","@language":"en"},{"@value":"1889-12-31 AD","@language":"en"}],"Source":[{"@value":"Original Format: University of British Columbia. Library. Rare Books and Special Collections. spam19577","@language":"en"}],"Subject":[{"@value":"Claims against decedents\u2019 estates","@language":"en"},{"@value":"Claims","@language":"en"},{"@value":"Inheritance and succession","@language":"en"}],"Title":[{"@value":"In the Supreme Court of British Columbia. On appeal to the Divisional Court. In the matter of the trusts of the will of James Ellard, late of the city of New Westminster, deceased, and in the matter of the Trustee Act, 1850, and between Robert Dickinson and George Turner, plaintiffs, and Mary Ellard, James Ellard, Annie Ellard, Sidney Ellard, Ada Ellard, Reuben Ellard, (apellants) James Wilton, Harvey and Esther Harvey, his wife, (respondents), defendants","@language":"en"}],"Type":[{"@value":"Text","@language":"en"}],"Translation":[{"@value":"","@language":"en"}],"@id":"doi:10.14288\/1.0222178"}