Arthur Pageitt Greene and Godfrey Greene, Infants, v John Greene and Others

• Jurisdiction: Ireland
• Judgment Date: 27 May 1869
• Date: 27 May 1869
• Court: Chancery Division (Ireland)

V. C. Court.

ARTHUR PAGEITT GREENE AND GODFREY GREENE, INFANTS,

and

JOHN GREENE AND OTHERS.

Webb v. WoolsENR 2 Sim. N. S. 267.

Barnes v. Grant 2 Jur. N. S. 1127; 26 L. J. N. S. Ch. 92.

Knight v. KnightENR 3 Beav. 172.

Palmer v. SimmondsENR 2 Drew. 221.

Cox v. CoxENR 27 Beav. 301.

Shovelton v. ShoveltonENR 32 Beav. 144.

Bonsal v. KinnearENR 2 Giff. 195.

Briggs v. Penny 3 M. & Gor. 546.

Moriarty v. Martin 3 Ir. Ch. R. 26.

Montgomery v. Johnson 11 Ir. Eq. R. 476.

Harrison v. GrahamENR 1 P. Wms. 241, note.

Cummins v. Cummins 3 Jo. & L. 64.

Strickland v. StricklandENR 12 Sim. 463.

In re Badenach 10 Jur. N. S. 921.

Stacey v. Elph 1 Myl. & K. 195.

Conyngham v. Conyngham 1 Ves. 522.

Knight v. Boughton 11 Cl. & F. 555.

M'Cormack v. Grogan I R. 1 Eq. 329.

Barnes v. Grant 26 L. J. N. S. Ch. 92.

Lefroy v. Flood 4 Ir. Ch. R. 1.

Webb v. WoolsENR 2 Sim. N. S. 267.

Robinson v. Tickell 8 Ves. 142.

Hammond v. NeameENR 1 Swans. 35.

Raikes v. WardENR 1 Hare, 445.

Scott v. KeyENR 35 Beav. 291.

Stacey v. Elph 1 Myl. & K. 191.

Lowry v. FultonENR 9 Sim. 115.

Davis v. Spurling 1 Rus. & Myl. 64.

In re Badenach 10 Jur. N. S. 521.

Montgomery v. Johnson 11 Ir. Eq. R. 476.

Orr v. NewtonENR 2 Cox, 274.

Lefroy v. Flood 4 Ir. Ch. R. 1.

Harrison v. GrahamENR 1 P. Wms. 240, note.

Knight v. KnightENR 3 Beav. 148.

Knight v. Boughton 11 Cl. & F. 555.

Briggs v. Penny 3 M'N. & G. 546.

Lefroy v. Flood 4 Ir. Ch. R. 1.

M'Cormack v. Grogan I. R. 1 Eq. 329.

Webb v. WoolsENR 2 Sim. N. S. 267.

Scott v. KeyENR 35 Beav. 291.

Barnes v. Grant 2 Jur. N. S. 1127.

Shovelton v. ShoveltonENR 32 Beav. 144.

Raikes v. WardENR 1 Hare, 445.

Woods v. WoodsENR 1 My. & Cr. 407.

Crockett v. CrockettENR 2 Phil 553.

Webb v. WoolsENR 2 Sim. N. S. 267.

Precatory Trusts — Acting as Executor.

90 THE IRISH REPORTS. [I. R. Probate, estate, I think I have, at all events, power in my discretion to 1869. refuse to exercise such a jurisdiction ; and certainly, having regard. LAwLEss to the contents of the affidavits, this is not a case to encourage any ti proceedings adverse to the alleged will (1). LAWLESS. Solicitor for the Plaintiff : Mr. James Barrett. Solicitors for Mr. and Mrs. Meldon : Messrs. Meldon 4 Sons. V. C. Court. ARTHUR PAGEITT GREENE AND GODFREY GREENE, 1869. INFANTS, v. JOHN GREENE AND OTHERS. Feb. 3, 4, 5, 16. Precatory Trusts-Acting as Executor. H. G. made his will in these words .-" I give and bequeath all my property of what kind soever that I may die possessed of to my dearly-beloved wife, L. G., well knowing her sense of justice, and love to her family, and feeling perfect confidence that she will manage same to the best advantage for the benefit of her children." Held, that this will did not create a precatory trust for the children, but that L. G. took all the property absolutely. THE bill in this case was filed by Arthur Pageitt Greene and. Godfrey Greene, two of the children of Henry Greene, deceased, against four others of the children of the said Henry Greene, and against John Greene, one of the executors appointed by his will. It prayed that the trusts of the will of the said Henry Greene should be carried into execution ; that John Greene should be ordered to deliver up possession of so much of certain lands and houses at Kilkea, mentioned in the bill, as was in his possession ; that he should be ordered to deliver up a certain lease of the 1st of May, 1862, to be cancelled ; for an account of wilful waste, and of the profits of the lands of Kilkea and Monaville ; that he should be charged with whatever portion of the personal assets of Henry Greene had been lost by his acts or wilful default, and that the assets of Lydia Greene, in the bill mentioned, should, if necessary, be applied in a due course of administration. (1) See In the Goods of Morton, 3 Swa. & Tr. 422. VoL. III.] EQUITY SERIES. 91 The Defendants were the said John Greene and four of the v. C. Court. children of Henry Greene. 1869. The bill stated the following matters among others :-Henry GREENE Greene, father of the Plaintiffs, at the time of his death, in 1854, GREENE. held the farm and lands of Kilkea, in the county Kildare, under a lease from the Duke of Leinster, the lands of Cruisetown, the lands of Monaville, and other lands. On the 10th of March, 1854, he made his will as follows : " I give and bequeath all my proÂÂperty, of what kind soever that I may die possessed of, to my dearly beloved wife, Lydia Greene, well knowing her sense of justice and love to her family, and feeling perfect confidence that she will manage same to the best advantage for the benefit of her children, and I hereby appoint my said wife, Lydia Greene, and my nephew, John Greene, executors of this my last will." Some time after the date of his will, Henry Greene died, leaving him surviving his widow, Lydia Greene, and seven children, one of whom, since Henry Greene's death, attained full age, but died inÂÂtestate and unmarried. Two of the other six children were the Plaintiffs, and the other four were Defendants. Probate of the will was granted to Lydia Greene, saving the right of the other executor, the Defendant, John Greene. Although John Greene did not join in the probate, he acted throughout with Lydia Greene in managing and administering the assets of Henry Greene ; and the Plaintiffs charged that almost every act of hers was done at his instigation or under his advice, and that, since her death, he had received and acted in the administration of the assets of Henry Greene. In February, 1860, Lydia Greene obtained from the Duke of Leinster leave to sublet the lands of Kilkea, and by lease, dated the 1st May, 1862, demised them and seven acres of the lands of Monaville to the Defendant, John Greene, who had been in posÂÂsession of them since 1860. This sub-lease was made at a rent of £140 15s. The Plaintiffs charged that it was made at an underÂÂvalue, and that Lydia Greene, when making it, was without proÂÂfessional advice. Acting, as the bill charged, under the advice of John Greene, Lydia Greene sold Cruisetown for £1000 (also charged to be an unÂÂdervalue), which sum, with another £1000, part of the price of the 92 THE IRISH REPORTS. [I. R. V. C. Court. live stock of Henry Greene, was charged to have been lent by her, 1869. acting under John Greene's advice, to Messrs. Bagot and Hutton, GREENE who were traders, on their personal security, one of them being a brother-in-law of John Greene. GREENE. The bill also charged that, in consequence of the letting of Kilkea, and the sale of Cruisetown, a large quantity of live stock and farming utensils was sold off in a hurry, and at a sacrifice, and that the produce of the sales had been squandered or lost. Lydia Greene died on the 25th of December, 1862. Her will was on the 23rd of April, 1864, proved by the Defendant, John Greene, who in January, 1868, instituted a suit to administer her assets. The Plaintiffs submitted that, under Henry Greene's will, the whole of his property belonged to his children, and that Lydia Greene did not take any beneficial interest under it ; that it was a gross breach of trust by John Greene to advise, authorize, or perÂÂmit Lydia Greene to lend the money of her infant children on personal security ; and that John Greene, if he squandered, or perÂÂmitted Lydia Greene to squander, any portion of the principal of the assets of Henry Greene, should be charged therewith. The Defendant, John Greene, by his answer, denied the various charges made by the bill ; and stated that, save so far as he maÂÂnaged the lands of Kilkea and Monaville for his own benefit after he became tenant to Lydia Greene, he did not, during her life, manage the lands, or the live stock or crops thereon, or dispose of any part of them, or in anywise act as executor of Henry Greene; but he admitted that, as the friend and near relative of Lydia Greene, he was always ready to lend her any assistance in his power, and to advise her as best he could with reference to the management of the farms, which she believed and represented to him to be her own absolute property ; and that he did occasionÂÂally, when she required it, give her such assistance and advice. With reference to the loan of £2000 to the Messrs. Bagot and Hutton, he stated that Lydia Greene made it, notwithstanding his advice to the contrary. He submitted whether the will of Henry Greene annexed to the gift to Lydia Greene any trust in favour of her children ; and that, if such a trust was created, the manageÂÂment and distribution of Henry Greene's property were left to her discretion. VOL. III.] EQUITY SERIES. 93 The evidence given to prove that John Greene, the Defendant, V. C. Court. had, in fact, acted as executor of Henry Greene, was very volumi- 1869. nous, and the decision renders it unnecessary to set it out at G _ REENE length. The result of the evidence was that it satisfied the Vice- GREENE. Chancellor that John Greene had acted perfectly bon fide throughÂÂout, and that he had given much of his time and trouble gratuiÂÂtously, and from motives of kindness, to assist Mrs. Greene in managing the property to the best advantage. The Vice-ChanÂÂcellor was also satisfied that the lease obtained by John Greene, even if he had acted as executor, was taken after he had ceased to act in that character, and that it was not taken at an undervalue. His Honor also was not satisfied by the evidence that, supposing Mrs. Greene to have been a trustee of the will, she had been guilty of any breach of trust. From the bill filed to administer her assets it appeared that the interest paid on the loan of £2000 was at the rate of £7 per cent. 111r. S. W. Flanagan, Q. C. ; Mr. A. S. Jackson, Q. C. ; and Mr. Ince, for the Plaintiffs. Under the will of Henry Greene, Mrs. Lydia Greene was a bare trustee for the benefit of his children, and did not take any beneÂÂficial interest in the...