Armstrong v Lynn

• Jurisdiction: Ireland
• Judgment Date: 30 January 1875
• Date: 30 January 1875
• Court: Rolls Court (Ireland)

Rolls.

ARMSTRONG

and

LYNN.

Jones v. SmithENR 1 Hare, 55.

Boursot v. SavageELR L. R. 2 Eq. 134.

Whitbread v. Jordan 1 Y. & C. Ex. C. 303.

Taylor v. BakerENR 5 Price, 306.

Penny v. WattsUNK 1 hall & Tw. 266; 1 M. & G. 150.

Foster v. CockerellENR 9 Bli. N. S. 332.

Warbuton v. HillENR 1 Kay, 470.

Le Neve v. Le Neve 2 Tudor L. C. in Eq., pp. 43, 33, 52.

Abbott v. Geraghty 4 Ir. Ch. R. 23.

Ex p. Lloyd's Banking Co.ELR L. R. 4 Ch. App. 630.

Pennington v. BeechyENR 2 Sim. & St. 282.

Loveridge v. CooperENR 1 Russ. 3.

Ware v. Lord Egmont 4 D. M. & G. 423.

Green v. GreenENR 19 Ves. 665; 2 Mer. 86.

Gaskin v. RogersELR L. R. 2 Eq. 291.

Cooper v. Cooper L. R. 6Ch. App. 15.

Cooper v. CooperELR L. R. 7 H. L. 54.

Wombwell v. HanrottENR 14 Beav. 143.

Wilson v. Piggott 2 Ves. Jun. 351.

Simpson v. PaulENR 2 Cox, 34.

Clune v. Apjohn 17 Ir. Ch. R. 25.

Lee v. HeadENR 1 K. & J. 620.

Ware v. Lord Egmont 4 D. M. & G. 173.

Walmsley v. VaughanUNK 1 D. & J. 114.

Foster v. Cautly 6 D. M. & G. 55.

Lee v. HeadENR 1 K. & J. 620.

Green v. GreenENR 2 Mer. 86.

Settlement of policy of insurance — Want of notice to Company — Constructive notice of settlement — Power of appointment — Limitation in default of appointment — Appointment to an object in discharge of his share — Election.

186 THE IRISH REPORTS. [I. R. Solicitors for the Plaintiff : _Messrs. Barrington 8j. co. Solicitor for the Defendant : Mr. Thomas Carey. ARMSTRONG v. LYNN. Settlement of policy of insurance-Want of notice to Company-Constructive notice of settlement-Power of appointment-limitation in default of apÂÂÂpointment-Appointment to an object in discharge of his share-Election. By a settlement of 1836, executed on the marriage of R. K. L., two sums-£500 secured by a judgment, and £1200 secured by a policy on his life-were vested in trustees, in trust, after the death of the husband and wife, for the children of the marriage, as the husband and wife should jointly, or, in default, as the survivor should appoint ; and, in default of appointment, on the children equally : the shares to be paid to sons at twenty-one, and to daughters at twenty-one or marriage, with right of survivorship. There were three sons and a daughter issue of the marriage.. 'In 1860, by a settlement executed on the marÂÂÂriage of the daughter in the lifetime of the mother with R., reciting that R. K. L. was possessed of the said policy, and that it had been effected for the (1) Ir. Rep. 2 Eq. 53. purpose of making a provision for the children of R, K. L., he assigned the Roils. policy to trustees, one of whom was one of his sons, upon. trust as to £500 for 1874. It. for life, with limitations over, after the deaths of It. and his wife, in the AR. STRONG event of there being no child of the marriage. As to the residue of the pro- v. ceeds of the policy, the trust was for It. K. L. absolutely. After the mother's LYN death, another settlement of 1872 was executed on the marriage of R. Y. L., another son of R. K. L., who was an executing party to it. By this settlement R. K. L. assigned independent property of his own for the benefit of the son's -wife and the children. of the marriage ; and, after reciting the settlements of 1836 and 1860 and the trusts of them, R. K. L. appointed half of the two sums of £500 and £1200 to It. Y. L., in full discharge of his share of the trust funds in the settlement of 1836. Notice of the assignment of the policy made by the settlement of 1860 was served on the Insurance Company, but none such of the settlement of 1836 was served. R. K. L. died in 1873. It., his solicitor, and. the surviving trustee of the settlement of 1860, denied knowledge or notice of the settlement of 1836. Held: 1. That It. or the trustees of the settlement of 1860 could not be fixed with any constructive notice of the settlement of 1836, and that he was entitled to the interest which he took under the former settlement as a purchaser paraÂÂÂmount to the latter settlement. 2. That It. was not by the settlement of 1860 put to any election, and that he was entitled to claim his interest thereunder, and also to claim, as personal representative of his deceased wife, the share of the funds settled in 1836, which she took in default of appointment. 3. That It. Y. L., having executed the settlement of 1872, was barred from taking any share in the unappointed funds. MOTION FOR A DECREE. The bill prayed that the trusts of a deed of the 27th of September, 1836, might be declared and carried into execution, and that the rights of the several persons entitled to two sums of £1200 and £500, comprised in that settlement, might 13e ascertained and declared. The Plaintiffs were the trustees of the said settlement. The provisions of it, and of several other deeds on which the rights of the Defendants depended, are fully stated in the judgment. Mr. F. W. Walsh, Q. C., and Mr. E. X. Kelly, for the Plaintiffs. Mr. Jellett, Q. C., Mr. Dames, Q. C., and Mr. R. Dames, for the Defendant Charles Lynn, and Mr. Pilkingtotb Q. C., and Mr. Charks Hamilton, for Robert 02 THE IRISH REPORTS. [I. IL Young Lynn, on the first question, whether J. W. Rodgers or his trustees had constructive notice of the settlement of the 27th Sep tember, 1836, relied on the recitals of the settlement of the 29th. of August, 1860, and on the fact that John Lynn, one of the sons of Robert K. Lynn, who was entitled to a share in the trust funds in default of appointment, was a trustee in the latter settlement, as bringing the case within the first proposition of Sir James Wigram, V.C., in Jones v. Smith (1) ; Boursot v. Savage (2) ; Whitbread v. Jordan (3) ; Taylor v. Baker (4) ; Penny v. Watts (5) ; Foster v. Cockerell (6) ; Warburton v. Hill (7) ; Notes to Le Neve v. Le Neve (8) ; Abbott v. Geraghty (9); Er p. Lloyd's Banking Co. (10) ; Pennington v. Beechy (11). Hr. W. D. Andrews, Q. C., and Mr. Naish, contra, contended that none of the cases cited went so far as to fix constructive notice on a party under circumstances such as this case disclosed : Dearle v. Hall, and Loveridge v. Cooper (12) ; Ware v. Lord Egmont (13). On the second question, whether J. W. Rodgers was bound to elect between the appointment under the settlement of 29th August, 1860, and his wife's share in default of appointment Mr. Pilkington, Q. C., and .Mr. C. Hamilton, relied on Green v. Green (14) ; Gaskin v. Rogers (15) ; Cooper v. Cooper (16) ; Cooper v. Cooper (17) ; and on the third question, whether Robert G. Lynn was debarred of his share in default of appointment, they cited Sugden on Powers (9 Ed.), p. 235 ; Wombwell v. Hanrott (18). 31r.Jellett, Q. C., and 1hrr.Dames,Q.0 ., cited Wilson v. Piggott (19) ; Simpson v. Paul (20); Clune v. Apjohn (21) ; Lee v. Head (22). (1) 1 Hare, 55. (12) 1 Russ. 3. (2) L. R. 2 Eq. 134. (13) 4 D & G. 423. (3) 1 Y. & C. Ex. C. 303. (14) 19 Yes. 665 ; 2 Mer. 86. (4) 5 Price, 306. (15) L. R. 2 Eq.,221. (5) 1 Hall & Tw.266 ; 1 M. &G.150. (16) L. R. 6 Ch. App. 15. (6) 9 Bli. N. S. 332. (17) L. R. 7 H. L. 54. (7) 1 Kay, 470. (18) 14 Beay. 143, (8) 2 Tudor L. Can Eq., pp. 43, 44, 52. (12) 2 Yes. Jun. 351. (9) 4 Ir. Ch. R. 23. (20) 2 Cox, 34. (10) L. R. 4 Ch, App. 630. (21) 17 Ir. Ch. R. 25. (11) 2 Sim. & St. 282. (22) 1 & J. 620. VOL. IX.] EQUITY SERIES. THE MASTER OF THE ROLLS : The bill in this cause has been filed by the Plaintiffs, who were at the time of the filing thereof, and now are, the trustees of a settlement of the 27th September, 1836, to carry out the trusts thereof, and to have the rights of all persons interested in two slims thereby settled-viz., £1200 and £500-ascertained. The am of £1200 represents the proceeds of a policy of assurance. The £500 is secured by a judgment. This settlement was made on the occaÂÂÂsion of the marriage between Robert Kerrison Lynn and Eliza Young, and there was thereby assured. to his trustees the said policy of assurance which this Robert K. Lynn had effected in the slim of £1200 on his own life with the National Assurance Company of Ireland, and a judgment in the penal sum of £1000 to secure £500 acknowledged to the trustees by Robert Young, upon trust, " after the solemnization of said marriage, in the first place to apply the interest of said sum of £500 in payment of the annual premium from time to time to grow due on said policy, during the life of said Robert Kerrison Lynn, and of all other sums that might be required for keeping up the same; and subject thereto and as to so much of said interest (if any) as should not be required for the purposes last mentioned, then upon trust to pay said residue unto the said Robert Kerrison Lynn for his life, and after his decease to apply said principal sum of £500 and the interest and proceeds thereof in manner therein expressed. And as to the said policy of insurance and the principal sum of £1200 thereby insured, upon trust after the decease of the...