Burrowes v O'Brien

• Jurisdiction: Ireland
• Judgment Date: 21 January 1864
• Date: 21 January 1864
• Court: Rolls Court (Ireland)

Burrowes

and

O'Brien.

Rolls.

CHANCERY REPORTS,

BEING A SERIES OF

CASES ARGUED AND DETERMINED

IN THE

HIGH COURT OF CHANCERY,

COURT OF APPEAL IN CHANCERY,

Rolls Court, Landed Estates Court,

AND

COURT OF BANKRUPTCY AND INSOLVENCY.

This was a suit to charge the respondents, who were trustees of a certain settlement of the 21st of October 1834, with a breach of trust, in paying to the petitioner's late father, the Rev. George Burrowes, a sum of £1200, the produce of a policy of insurance which had been settled on trust for the Rev. George Burrowes for his life. The question discussed at the hearing, and decided by the Court, was, whether the personal representative of the Rev. George Burrowes was a necessary party to the suit. The facts of the case, as they appeared from the petition and affidavits, are fully stated in his Honor's judgment.

Mr. Chatterton and Mr. W. M. Johnson, for the petitioner.

Mr. Exham, Mr. Thomas Jones, and Mr. W. R. C. Smith, for the respondents.

The following authorities were cited:—28th General Order of 1843; Williams v. Allen (a); Morgan's Rules, p. 370; Kellaway v. Johnson (b); Perry v. Knott (c); Jesse v. Bennett (d); Orrett v. Cosser (e); Bentley v. Robinson (f); Mitford on Pleading, p. 190; Robinson v. Bransby (g); Raby v. Ridehalgh (h); Ling v. Colman (i); Smith's Chancery Practice, p. 342; Strong v. Strong (k).

Mr. Chatterton and Mr. W. M. Johnson, for the petitioner.

Mr. Exham, Mr. Thomas Jones, and Mr. W. R. C. Smith, for the respondents.

Judgment.

The Master of the Rolls.

The petition in this case has been filed by the petitioner to make the respondents liable for a breach of trust committed by the respondent Henry James O'Brien, and by Thomas Gibbings deceased, whose widow and administratrix, Alicia Gibbings, is the other respondent.

The petition states that an indenture of the 21st of October 1834 was made between the Very Rev. Robert Burrowes, Dean of Cork, of the first part, the Rev. George Burrowes of the second part, Elizabeth Roberts, widow, of the third part, Elizabeth Roberts, spinster, of the fourth part, the Rev. John O'Neill and Samuel Smith of the fifth part, and Robert Law, the Rev. Edward Forward and William Forward of the sixth part, being the settlement made in contemplation of the then intended marriage between the said Rev. George Burrowes and Elizabeth Roberts, spinster, the petitioner's father and mother, and which marriage shortly afterwards took place.

By that settlement the Rev. Robert Burrowes conveyed to John O'Neill and Samuel Smith, and their heirs, &c., certain houses and premises in the city of Dublin, and in the town of Enniskillen, upon the trusts thereinafter mentioned; and the said Rev. Robert Burrowes thereby also assigned to the said John O'Neill and Samuel Smith a policy of insurance on his own life, effected with the Globe Insurance Company, for £1200, dated the 11th of June 1808, upon the trusts thereinafter mentioned. The trusts upon which said houses and premises, and said policy of insurance, were assigned to the said John O'Neill and Samuel Smith were then declared to be, that they should pay thereout to the said Rev. George Burrowes and his assigns, for life, an annuity of £150 a-year; and, after the death of the said Rev. George Burrowes, to pay the said annuity of £150 a-year to the said Elizabeth Roberts, his intended wife, if she should survive him; and, after the death of the said Rev. George Burrowes, and the said Elizabeth Roberts, to pay the said annuity of £150 a-year to and amongst the issue of the marriage, in such shares and proportions as the said Rev. George Burrowes should by deed or will appoint; and, for want of such appoinment, in such manner as the said Elizabeth Roberts, in case she survived the said Rev. George Burrowes, should appoint; and, in default of appointment, to and amongst the said issue, and if but one child, then to such only child. The Rev. George Burrowes executed a bond and warrant of attorney for the sum of £2000, conditioned for the punctual payment of the said annuity.

The marriage was solemnized shortly after the execution of the settlement; and there was only one child of the marriage, the petitioner Robert Francis Burrowes, who attained his age of twenty-one in the year 1857.

The said Elizabeth Burrowes, the mother of the petitioner, died several years ago, in the lifetime of her husband, the Rev. George Burrowes, the petitioner's father.

The Rev. Robert Burrowes died on the 13th of September 1841, having previously made his will, and appointed the Rev. James Rorke, George Burrowes, and the Rev. Samuel George Rogers, executors thereof; and the two former having renounced, probate was taken out by the Rev. Samuel George Rogers.

The amount secured by the policy of insurance, and some bonuses thereon, having become payable on the death of the said Rev. Robert Burrowes, Dean of Cork, the Globe Insurance Company refused to pay the amount of the policy, except to the trustees of the said settlement of the 21st of October 1834, or to trustees duly appointed in their stead; and John O'Neill and Samuel Smith not having executed the settlement, or accepted the trust, and having refused to act, a bill was filed for the appointment of new trustees of the said settlement; and the respondent the Rev. Henry James O'Brien, and the Rev. Thomas Gibbings, were appointed new trustees; and accordingly, by deed of the 8th of September 1843, the houses and premises in Dublin and Enniskillen, and the said policy of insurance, were assigned to the said Rev. Henry James O'Brien and Rev. Thomas Gibbings, as such new trustees.

The policy of insurance having been produced at the hearing of the cause by the Globe Insurance Company, the following indorsement appeared thereon:—

“Received from the Globe Insurance Company, per Frederick Lyons, Esq., their agent at Cork, the sum of one thousand two hundred pounds sterling, being the sum payable under the within policy, together with the sum of thirty-six pounds, interest thereon, amounting together to the sum of one thousand two hundred and thirty-six pounds; and which latter sum we receive as trustees appointed by her Majesty's Court of Chancery in Ireland, to the settlement made previous to the marriage of the Rev. George Burrowes, clerk, with his late wife Elizabeth Burrowes, otherwise Roberts, and as such the persons legally entitled to receive the same.—Dated this 7th day of November 1843.”

“Henry J. O'Brien.

“Witness—Frederick Lyons.” Thomas Gibbings.”

The said Rev. Henry James O'Brien and Rev. Thomas Gibbings permitted the petitioner's father, the Rev. George Burrowes, to receive the amount of the said policy of insurance on their said receipt; and this was a breach of trust, as it was a part of the security for the annuity of £150 a-year, settled on the petitioner after the death of his father and mother.

The petition states that, in the year 1858, the petitioner joined his father in the sale of the said houses and premises in Dublin, for the sum of £150, which the petition states was the full value thereof; and the petition further states that the petitioner's father applied the proceeds of the sale to pay certain debts of the petitioner, and made several gifts of money to the petitioner, and thereout paid off certain demands against the petitioner. The object of that statement has reference to a certain clause in the will of the petitioner's father, to which I shall just now refer.

The petition states that the petitioner's father, the Rev. George Burrowes, died on the 20th of September 1861, leaving him surviving his second wife, Elizabeth Burrowes, otherwise Frend, and the petitioner, who was the only child of the first marriage.

The said Rev. George Burrowes made his will, dated the 17th of March 1858. The contents of that will are not fully set out in the petition, for reasons which will hereafter appear; but I shall state the provisions of the will just now; and it will then appear why the principal bequests in the will were suppressed from the petition.

The Rev. Thomas Gibbings died in the month of March 1861 intestate; and the respondent Alicia Gibbings is his widow and administratrix.

The petitioner seeks by his petition to show that he was ignorant of the contents of the said marriage settlement of the 21st of October 1834, and of the deed of the 8th of September 1843, assigning the trust property to the new trustees, until informed thereof by his solicitor in April 1863; but the clause in his father's will, which I shall hereafter particularly state, refers to the £1200 settled on the petitioner (i. e., the policy of insurance for £1200); and, although the petitioner acted on that clause, as I shall explain just now, he pretends ignorance of the settlement until April 1863.

I shall now state the provisions of the will of the Rev. George Burrowes, the petitioner's father, and the unjust attempt, on the part of the petitioner, to make the respondents pay the amount of the policy of insurance for £1200, and at the same time to take the benefits to which he is entitled under his father's will, with the exception of one devise, his father's...