Boyse v Rossborough

JurisdictionIreland
Judgment Date08 November 1854
Date08 November 1854
CourtCourt of Chancery (Ireland)

English Reports Citation: 43 E.R. 321

BEFORE THE LORD CHANCELLOR LORD CRANWORTH AND THE LORDS JUSTICES.

Boyse
and
Rossborough

Affirmed, 6 H. L. C. 1. For other proceedings, see 6 H. L. C. 2.

[817] boyse v. rossbokough. Before the Lord Chancellor Lord Cranworth and the Lords Justices. Jan. 18, 19, 25, Feb. 11, 1854. [Affirmed, 6 H. L. C. 1. For other proceedings, see 6 H. L. C. 2.] A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trusts are declared by the will, and though it is not necessary to administer the estate under the direction or- decree of a Court of Equity. This was an appeal by Mary Grey Wentworfeh Rossborough and her husband, two of the Defendants in the suit, against an order of Vice-Chancellor Wood overruling a demurrer to the Plaintiffs bill. The bill was filed by Jane Stratford Boyse and her husband J. S. Boyse, the former being devisee in fee of the real estate of Caesar Colclough under his will, and it prayed that the will might be established. The present Appellants, M. G. W. Rossborough and her husband, the former of whom was the heiress at law of the testator, put in a general demurrer for want of equity, the principal ground taken being that a bill would not lie in the Court of Chancery for the purpose of establishing the will of a testator at the instance of a mere legal devisee of an estate, where no equitable relief was prayed, or the administration of the estate sought. The Vice-Chancellor, before whom the question came in November and December 1853, overruled the demurrer, [818] and the demurring Defendants appealed. A full report of the facts of the case, together with the arguments of counsel and the judgment of the Vice-Chancellor, will be found in the 1st Volume of Mr. Kay's Reports, page 71. Other questions independent of the one already mentioned were suggested in argument (they will be found mentioned in Mr. Kay's report); they are not noticed in the following report, as it will be seen that the judgment of the Court is confined expressly to the point, whether there was jurisdiction to establish a will against the heir at law at the suit of a mere legal devisee, such devisee having no equitable title or interest in the property under the will. Mr. Swanston, for the demurrer, and in support of the appeal. The sole question here is, whether a mere legal devisee can file a bill in this Court to establish a will. Where there are two parties claiming only a legal title, the title of one of them depending upon the validity of a testamentary instrument, this Court will not determine the question of validity; all it will do is to give its aid by perpetuating the testimony of witnesses, and this is the extent of the relief to which the Plaintiff is entitled, Mit. PI. pp. 41, 120, 121, ed. 3; pp. 51, 148, 149, ed. 4. (He referred to Fearne's Posth. Works, p. 234, and to the cases of Lord Dursley v. Fitzhardinge Berkeley (6 Ves. 251), Allan v. Allan (15 Ves. 130), Bidulph v. Bidulph (2 P. W. 285), and Foidds v. Midgley (1 V. & B. 138), as supporting this proposition.) The Vice-Chancellor was of opinion that if a bill [819] like this can be filed by a legal devisee in trust, which we do not dispute, the same course must be open to the legal devisee without a trust; but it is submitted that the cases are quite distinguishable. No mention is made of such a bill as the present by Lord Redesdale: in Devonsher v. Neivenham (2 Sch. & Lef. 199) his Lordship evidently treats the right of a devisee in trust to the protection of the Court as arising by virtue of the trust; and in Mit. PI. p. 139, ed. 3 (p. 171, ed. 4), there is the following passage :-"To a bill to carry C. xxin.-11 322 BOYSE V. ROSSBOROUGH 3 DE 0. M. ft 0. 830. into execution the trusts of a will disposing of real estate by sale or charge of the estate, the heir at law of the testator is deemed a necessary party, that the title may be quieted against his demand; for which purpose the bill usually prays that the will may be established against him by the decree of the Court: here Lord Kedeedale in effect says, that the devise being in trust gives the equity. In Lord Fingal v. Blake, (1 Moll. 113, p. 115), Lord Chancellor Hart alludes to the same principle; he says, " It is quite true that executors, where the will contains a charge of debts, acquire thereby no right to come into equity to establish the will against the heir . . . ; but in this case I think the Plaintiffs take a direct interest in the real estate, Lord Fingal who is one of the executors being likewise a trustee; and though as executor he has no right to call for a decision touching the devise, as trustee, he is clearly entitled. ... I think if there was no trust this Court would have no ground to interfere . . . ; but where there is a trust the whole question comes properly within the jurisdiction and under the control of this Court," &c. The case of Berney v. Eyre (3 Atk. 387) was referred to in the Court [820] below by the Plaintiffs, but it will be found that there the bill was only to perpetuate testimony; and Harris v. Ingledew (3 P. W. 91), which they also cited, is really in favour of the present argument, for there the Court had possession of the case to administer the trusts. It was said that Lord Eldon, in Bootle v. Blundell (19 Ves. 494), spoke of "an establishing bill" as if it was a class of bill well known and recognized, but this did not shew that the function of such a bill was confined to establish the will, it was also to execute trusts : the same remark applies to Morrison v. Arnold (19 Ves. 670), and to Colton v. Wilson (3 P. W. 190). If a bill like the present will lie at the instance of the devisee, there will be no reciprocity for the heir at law in possession; Pemberton v. Pemberton (13 Ves. 290), Jones v. Jones (3 Mer. 161), Maclcrell v. Hunt (2 Madd. 34, n.). The Plaintiffs relied below on Grove v. Young (5 De G. & S. 38), the bill in which was filed under the direction of the Lord Chancellor (Lord Cottenham) given in Grove v. Bastard (2 Phil. 619); but all that his Lordship meant was, that the proper bill should be filed to try the validity of the will, and although the bill which was in consequence filed did not ask that the trusts should be performed, yet that could not be relied on as a precedent, for the heir took no objection, being willing to try the validity of the will in this form, and as a matter of fact the devise was itself upon trust. (He referred to the terms of the decree to establish a will, Seton on Decrees, p. 82, to the 31st Order of the 26th August 1841, and to French v. Baron (Dick. 138), Binfield v. Lambert (Dick. 337), Cator v. Butler (Dick. 438), Wood v. Stane (8 Price, 613), [821] Talbot v. The Earl of Radnor (3 Myl. & K. 252), Tatham v. Wright (2 Russ. & M. 1), Blake v. Foster (2 Ball. & Beat. 387). Mr. E. Younge, on the same side. He commented shortly on the grounds upon which the Vice-Chancellor's judgment proceeded, and read the following passage from the 4th Eeport of the Commissioners of the Law of Real Property, p. 35 :-" Courts of Equity, for the most part, decline to determine the validity of a will without the aid of a Court of law, which they consider to have the proper jurisdiction on this subject. When wills of freehold estate come incidentally in question in Courts of Equity, they are considered, with respect to proof, as on the same footing with deeds; but when a will of freehold estate is the direct subject of suit, Courts of Equity have assumed jurisdiction in some cases, with respect to such wills, differing from the rules of common law. When the estate devised is an equitable estate, or is liable to the payment of debts or legacies, or to any trusts created by the will, and in cases where, on other grounds, Courts of Equity have jurisdiction, they will decree that the will has been well proved and is to be established," (He referred to Story's Commentaries on Equity Jurisprudence, 1447 and notes (vol. 2, p. 939 et seq. ed. 6), and produced an extract of Mackrell v. Hunt from the registrar's, book. (NOTE.-The substance of this will be found referred to in the judgment of the Lord Chancellor.)) [THE lord justice knight bruce. We find a useful jurisdiction exercised in many instances, and it is now said it is to be limited by the extent of the ex-[822]-ample; but what I want to know is what is the distinction between the case of a will containing a trust, and a will not containing a trust, the heir in each case saying that the instrument is a nullity,] 3 DE 0. M. fc 0. 823. BOYSE V. ROSSBOROUGH 323 Mr. J. V. Prior on the same side, referred to and commented on Berney v. Eyre (3 Atk. 387) and the other cases before cited. [THE lord justice turner mentioned Grai/son v. Atkinson (2 Ves. 454) before Lord Hardwicke in 1752, and read the particulars of the case from the registrar's book.] the solicitor-general [Bethell], for the Plaintiffs and in support of the decision of the Vice-Chancellor. When the true facts of the caseof Mackrell v. Hunt (2 Madd. 34, n.) -are looked into, it will be found to have no bearing on the point under discussion : the Plaintiff in the suit there was merely a party who had entered into a contract for the purchase of an interest devised in a will, and it was held he had not such an interest .as enabled him to tile a bill to establish the will. Upon the question of principle, little can be added to what is adduced by the Vice-Chancellor in his judgment. It is -admitted by the Plaintiffs that the Court has jurisdiction to establish a will when that is incidental to something else sought by the bill; and it is impossible to maintain that the jurisdiction of the Court depends on the fact of the will containing a trust; it is limiting the rule by its example, and making a universal affirmation equal to a negative proposition. Whatever be the origin of the jurisdiction, the cases...

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