Bevan v Bevan

• Jurisdiction: Ireland
• Judgment Date: 11 December 1883
• Date: 11 December 1883
• Court: Chancery Division (Ireland)

CHANCERY DIVISION.

BEVAN

and

BEVAN

Herry v. HerreyENR 1 Atk. 561.

Zouch v. Woolston 2 Bur. 1136.

Doe v. MilborneENR 2 T. R. 721.

Webster v. BoddingtonENR 16. Sim. 177.

Cuninghame v. Anstruther L. R. 2 Sc. App. 223; see also Krantzcke v. Robinson, 11 L. R. I.500

Maultby v. Maultby 2 Ir. Ch. R. 32.

Mosley v. Mosley 5 Ves. Jun. 248.

Bailey v. TennantENR 11 Exch. 776.

Beale v. BealeENR 1 P. Wms. 244.

Re Nash 5 Ir. Ch. R. 384.

Brown v. NesbittENR 1 Cox, 43.

Vaue v. Lord Dungannon 2 Sch. & Lef. 118.

Cuninghame v. Austruther L. R. 2 Sc. App. 223.

Mosley v. Mosley 5 Ves. 248.

Simpson v. O'SullivanENR 3 Dr. & War. 446; 7 Cl. & Fin. 550.

Cuninghame v. Austruther L. R. 2 Sc. App. 223.

Brown v. NesbittENR 1 Cox 43.

Vane v. Lord Dungannon 2 Sch. & Lef. 118.

Settlement Construction Portions Priority Trust term Execution of power.

VoL. XIII.] CHANCERY DIVISION. 53 sent purpose, whether property " embarked in trade " be realty or Appeal. personally is immaterial. The true question is whether the testa- 1883. tor's estate in the premises was in fact part of the capital devoted DEIT17 r. by him out-and-out to his business. I think it clearly was : the KEARNEY. testator had himself raised money for trade purposes on a pledge of his interest in identically the same way in which the executrix afterwards did so for the purpose of continuing the trade ; the actual use of the premises was exclusively for trade purposes, and the use of the buildings and corpus of the realty could not, upon the evidence, be distinguished in this regard from that of the fixÂÂtures, or even of the movables, found upon the premises. Whenever fixed property is shown to be part of a " trade capital," it seems to me that it must, while in the trader's hands, be held answerable for the trade debts, and this must equally be so where responsibiÂÂlities are incurred by a person whom a trader has authorised to continue the trade with the trade capital after his death, provided such responsibilities be incurred in the due course of the business. The necessary conditions apply to the pledge to the Appellant in this case, and I, therefore, think, the appeal must be allowed. Decision below reversed. Solicitors for the Appellant : Messrs. Larkin 8)- Co. Solicitors for the Respondents : Messrs. Nesbitt Baker. BEVAN v. BEVAN. M. R. Settlement-Construction--Portions-Priority-Trust term-Execution of 1883. power. Nov. 17, 20. The priority of annuities and of portions appointed under a power and Deo. 11. secured by a term, determined by the position of the term in the original deed creating them. Mosley v. Mosley (5 Yes. 248) explained. Power to W. B. (a tenant for life of settled lands, with remainder to his male issue in tail) by any deed or writing, to be by him sealed, delivered and LAW REPORTS (IRELAND). [L. R. I. attested by two or more witnesses, to appoint to any woman or women whom he might marry, such grant to be either prior or subsequent to the said marÂÂriage, for the life or lives of such woman or women respectively, a rentcharge not exceeding 500, and also by such deed or writing, executed and attested as aforesaid, to charge the lands with any sum or sums of money by way of porÂÂtions for his younger children, provided that the said portions should not, in any event, exceed 4000. W. B., on his marriage, in 1858, by deed-poll apÂÂpointed, in events which happened, 500 a-year jointure to be raised for his wife, and 2000 portions for his younger children. In 1869 W. B. made a will, reciting that he had no male issue, and thereby appointed an additional sum of 2000 to be raised for his two daughters : Held, that it was not obligatory upon the donee of the power to exercise the power of jointuring and charging portions by one and the same instrument; and that the appointment of the additional 2000 by the will was valid. THIS was an action for an account of the sum due on foot of two charges of 2000 each, and that the amounts found due might be declared to be well charged on certain lands in the county of Limerick, comprised in a deed of the 27th of October, 1838. That deed contained a power to William Bevan to charge a joint . ure not exceeding 500, and also to charge the land with any sum or sums of money by way of portions for his younger chilÂÂdren, provided the portions did not exceed 4000 in any event. It also limited certain annuities for their lives to the Defendants George Bevan and Michael Massey Bevan, the brothers of William Bevan. The deed of the 27th October, 1838, is fully stated in the judgment. On the 18th of September, 1858, William Bevan married Constance Von 6toefel ; and by deed-poll dated the 10th of DeÂÂcember, 1858, reciting the power in the deed of 1838, he appointed two rentcharges of 250 each in different events to his wife, i.e., the second rentcharge was not to take effect unless there should be two or more children of his marriage ; and William Bevan, in further exercise of the said power, "but without prejudice to any further or other appointment, and of every or any other power or authority, &c., by this deed or writing," &c., subjected and charged " the said lands, &c., with the raising and payment of the sum of 2000 for the portion or portions of the younger child or children of the said. William Bevan." William Bevan made his will on the 29th of August, 1869. After reciting the power and the deed-poll of the 10th of Decem- IL R. , ber, 1858, and that he had thereby, in exercise of the power, but 1883. without prejudice to any further or other appointment, charged BEVAN v. the lands with 2000 for the portions of his younger children ; R -EVAN. that he had issue by his wife two daughters only, and no son ; and that he was desirous of further exercising the power ; he conÂÂfirmed the appointment made by the deed-poll of the 10th of December, 1858, and subjected. and charged the lands comprised in the deed of 27th October, 1838, with the payment of the further sum of 2000, in addition to the sum of 2000 charged by the said deed-poll of the 10th December, 1858, for the portion or porÂÂtions of his said daughters, and of all and every other child or children thereafter to be born to him by his wife, other than an eldest or only son. William Bevan died on the 12th of April, 1870, without male issue, leaving two daughters, the Plaintiff Mary Bevan and Pauline Bevan. The latter died on the 27th of August, 1878, unmarried, and under age. By an indenture dated the 28th September, 1871, made between George Bevan of the first part, John Bevan of the second part, and William Mason and Henry Hunt, trustees, of the third part, reciting an agreement between George Bevan and John Bevan to enter into a family arrangement thereinafter contained, they granted and confirmed to the trustees of the deed the lands comÂÂprised in the deed of the 27th October, 1838, then held under a fee-farm grant, dated in 1856, to hold to the said trustees and their heirs to the use that George Bevan and his a'igns might receive during his life a rentcharge of 100 to be charged on the lands, and subject thereto to the said trustees...