Baker v Ker

JurisdictionIreland
Judgment Date22 March 1882
Date22 March 1882
CourtChancery Division (Ireland)

M. R.

BAKER
and

KER.

Egerton v. Brownlow 4 H. L. Cas. 219.

Massy v. RowenELR L. R. 4 H. L. 288, 294, 301.

Hartford v. Power Ir. R. 2 Eq. 204.

Ex parte RayUNK 1 Mad. 207.

Arthur v. Arthur 11 Ir. Eq. R. 511.

In re Tarsey's TrustELR L. R. 1 Eq. 561.

Estate of Molyneux Ir R. 6 Eq. 411.

Prichard v. Ames Turn. & Russ. 222.

Bishop v. Well 3 Ch. Div. 194, 197.

Mayd v. Field Ibid. 587.

Singleton v. Tomlinson ELR 3 App. Cas. 404.

East v. Twyford ENR 4 H. L. C. 517.

Kell v. Charmer ENR 23 Beav. 195.

Goblet v. BeechyENRENR 3 Sim. 24; 2 Russ. & M. 624.

Ciayton v. Lord Nugent 13 M. & . 200.

Massey v. Parker 2 M. & K. 174.

Spirett v. WillowsENR 3 De G. J. & S. 293.

Green v. MarsdenENR 1 Drew. 646.

Lewis v. MathewsELR L. R. 2 Eq. 177.

Re Tharp 3 pr. D. 76.

Massy v. RowenELR L. R. 4 H. L. 288.

Tarsey's TrustELR L. R. 1 Eq. 561.

Gilbert v. Lewis 1 D.J. & S. 38.

Massey v. Parker 2 M. & K. 174, 181.

Tyler v. LakeENR 2 Russ. & M. 183.

Stanton v. HallENR 2 Russ. & M. 175.

Tyler v. Lake Ibid. 183.

Hartley v. Hurle 5 Ves. 545.

Inglefield v. CoghlanENR 2 Coll. 247.

Massey v. Parker 2 M. & K. 174.

Married woman — Marriage articles — Separate estate — Sole use —— Will — Construction — Amount of legacy — Parol evidence.

Vox,. XL] CHANCERY DIVISION. 3 BAKER v. KER. M. R. 1881. Married woman-Marriage articles-Separate estate-Sole use-Order of Pro- bate Division for grant of limited administration-Trill-Construction- 2. Dec. 1, 2 Amount of legacy-Parol evidence. 1882. March 22. By antenuptial articles, reciting the intended marriage, ind an agreement to the following effect, the husband agreed to pay to the wife for her sole and separate use during the coverture, or to such person as she should by writing appoint, an annuity of £500 ; and also that he, his heirs, executors, and admiÂnistrators would pay to her, her executors, administrators, or assigns, immediÂately after his death, the sum of £10,000, for her sole and absolute use and disÂposal. The wife died in her husband's lifetime : Held, that she was entitled to the £10,000 for her separate use, and had power to dispose of it by will in her husband's lifetime. The wife made a will bequeathing the sum of £10. 00 (sic):-Held, that £1000 only passed by it. Contemporaneous evidence of a declaration by the testatrix, as to what she had left, rejected. BY articles of agreement dated the 12th of July, 1869, executed On the marriage of Mr. David Stewart Ker and Miss Caroline Helena Persse, reciting that it had been agreed upon the treaty for the said marriage that the said David Stewart Ker should secure to the said Caroline Helena Ker an annual sum of £500 for her sole and separate use during their joint lives, and should secure to the said. Caroline Helena Persse a sum of £10,000, to be paid to her, or her executors, administrators, or assigns, upon the death of the said David Stewart Ker, it was witnessed that David Stewart Kerr agreed that he would pay to the said Caroline Helena Persse for her sole and separate use during the intended coverture, or to such person or persons as she should appoint, a yearly sum of £500, upon the days thereby appointed ; and further agreed that he, his heirs, executors, or administrators, would pay to the said Caroline Helena Persse, her executors, administrators, or assigns, immediately after his death, the sum of £10,000 for her sole and absolute use and disposal. The articles are stated fully in the judgment (infra, p. 7). The marriage took place, and on the B2 LAW REPORTS (IRELAND). [L. R. I. 9th of December, 1875, Mrs. Ker made her will, of which the following was the probate copy :- " This is the last will t and. t t. Testament of Caroline Helena Ker. I leave the sum £10 00, all my Jewelry, horses, & carriages, to Charles Frederick Ker, 2d son of David Stuart Ker, late of Montalto in the County Down. " 36, KILDARE-STBE.ET, Duman'. " 9 Dec. 1875. "DANIEL KELLY. " Witness, " MARY KELLY." Mrs. Ker died on the 18th of February, 1876, in the lifetime of her husband David Stewart Ker. Charles Frederick Ker died on the 14th of September, 1876, without proving Mrs. Ker's will, but having made his will, whereby he bequeathed the said sum of £10,000 to the Plaintiff Georgina Baker, and appointed her daughter Harriet Baker his residuary legatee. The Plaintiff obtained probate of his will. David Stewart Ker died on the 8th of October, 1878. Letters of administration were granted of his personal estate on the 15th of November, 1878, to the Defendant William Blackwood Ker, son of David Stewart Ker. The Plaintiff applied to the Probate Division for adminisÂtration with the will annexed to Mrs. Ker, and on the 23rd of July, 1878, it was ordered by that Division that the Plaintiff should be at liberty to apply for letters of administration with the will annexed ; such grant to be limited to the administration of all the personal estate and effects of the deceased of which she died. possessed as separate estate at the time of her death, under or by virtue of the marriage articles of the 12th of July, 1869, or otherÂwise, which by virtue of any power and authority given to or vested in her by the said articles, or by virtue of any other power in anywise enabling her, she had power to appoint or dispose of by her will, and had by her said will appointed or disposed of accordingly; and it was declared. that in such personal estate was VOL. XL] CHANCERY DIVISION. included a vested interest expectant upon the death of her husband, the said David Stewart Ker, in the sum of £10,000, mentioned in the articles. There was an appeal from that order, and on the 8th of May, 1879, the Court of Appeal varied it by omitting therefrom so much of the declaration as to the personal effects of the said Caroline Helena Ker of which she was possessed as separate estate at the time of her death, under and by virtue of the marriage articles of the 12th of July, 1869, or otherwise, or which, by virtue of any power and authority given to her or vested in her by the said articles, or by virtue of any other power in any way enabling her, she had power to appoint or dispose of by her will, as declared there was included therein a vested interest expectant upon the death of her husband David Stewart Ker in the sum of £10,000 mentioned in the said articles, and that in all other respects the said order of the 23rd of July, 1878, should be affirmed. Accordingly, on the 20th of December, 1880, letters of admiÂnistration, limited to the administration of all such personal estate and effects as the said Caroline Helena Ker, by virtue of said articles of agreement had a right to appoint and dispose of, and had in and by her said will appointed or disposed of, were granted to the Plaintiff. This action was brought to have such personal estate adminisÂtered, and to have it declared that the sum of £10,000 (which was represented by two charges of £5000), was separate personal estate of Mrs. Ker, and was effectually disposed of by her will. The defence was that the £10,000 did not constitute separate estate of Mrs. Ker, and a denial that the will disposed of it, and the Defendant relied on the order of the Court of Appeal as a conclusive adjudication that this sum was not separate estate of Mrs. Ker. Mr. Webb, Q.C., Pakenham Law, Q.C., and Mr. E. Carson, for the Plaintiff First, Mrs. Ker took a separate estate in the £10,000 which she had power to dispose of by her will. The trust of this sum is executed, Egerton v. Brownlow (1), and. she took a present vested (1) 4 H. L. Cas. 219. LAW REPORTS (IRELAND). [L. R. I. interest in it under the articles, although the money was not payÂable until her husband's death, for her separate use. It was proÂvided "for her own sole and absolute use and disposal." The word "sole" is not strictly a technical word. But in a marriage settlement or marriage articles it may, on the construction of the instrument, have the effect of creating a separate estate : Massy v. Rouen (1) ; Hartford v. Power (2). Even where marriage is in contemplation of the parties : Ex parte Ray (3) ; Arthur v...

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