Cane v Fitzgerald

• Jurisdiction: Ireland
• Judgment Date: 17 January 1850
• Date: 17 January 1850
• Court: High Court of Chancery (Ireland)

Chancery.

CANE

and

FITZGERALD.

Eyre v. MarsdenENR 2 Keen, 564, S. C. 4 Myl. & Cr. 231.

Christian v. FosterENRENR 7 Beav. 540; S. C. on appeal, 2 Phil. 161.

Symons v. JamesENR 2 Y. & C., C. C. 301.

Hopkinson v. EllisENR 10 Beav. 169.

Ripley v. MoyseyENR 1 Keen, 578.

Scott v. MooreENR 1 Sim. 534.

Walter v. Maunde 19 Ves. 424.

Hone v. MedcraftENR 1 Bro. C. C. 261.

Weld v. Tew Beatty, 265.

Tipping v. PowerENR 1 Hare, 405.

Loomes v. Stotherd 1 S. & St. 458.

Ripley v. Moysey 1 Keen R. 578.

Eyre v. Marsden 4 Myl. & Cr. 231.

Roberts v. Walker 1 R. & Myl. 752.

Roberts v. Walker 1 R. & Myl. 759.

Bunnett v. FosterENR 7 Beav. 540.

Cole v. WadeENR 2 Phil. 161.

Walter v. Maunde 16 Ves. 27.

The Attorney-General v. Southgate 19 Ves. 424.

Elborne v. GoodENR 14 Sim. 178.

Nesbitt v. Murray 5 Ves. 149.

Howse v. Chapman 4 Ves. 542.

1850. Chancery. PEIRCE V. LOCKE. Judgment. 216 CHANCERY REPORTS. acquiring on certain terms the absolute property in the trust funds, and should therefore, according to the doctrine of a Court of Equity, be held to amount to that species of imperfect execution of the power, the defects of which the Court would, in favour of a wife and children, be at liberty to supply. I agree in the authority of the cases to which he referred, but they have, in my mind, no appliÂcation to the present cafe, in the view I have taken of the provisions of the will. CANE v. FITZGERALD. Jan. 17. When a mixed LORD FITZGERALD AND VESCI, having freehold estates in the and general fund of real counties of Clare, Limerick and Galway, and chattel real estates in and personal estate, in the the county and town of Galway, and in Dublin houses and two , d nature of a re- siduary fund, (also held for years) in London, having also large personalty in is creat b testatored foy r a Ireland and England, and not having any property elsewhere, by payment of his will, dated the 23rd of August 1838, first devised his estates in his debts and legacies, and Clare to his brother Henry Vesey Fitzgerald for life, subject to the for the gene ral purposes of payments and charges thereinafter mentioned, with remainder to his will, the costs of a suit, trustees to the use of the first and other sons of the said Henry conversant about the Vesey Fitzgerald successively in tail male, remainder over. disposition and adminis- He then devised and bequeathed his estates in the county of tration of that general fund, Galway and in the town of Galway, whether of freehold, leasehold) wper1ly bpeayPabr or other tenure, with their rights, &c., to trustees, in trust, until out of the a - whole of it, ny son of Henry Vesey Fitzgerald should attain his age of twenty- and must be borne rateably by the real and personal estate constituting that fund. And this is so, although by lapse or by the operation of law, the whole or part of that fund beÂcomes undisposed of, and returns to the heir-at-law or next-of-kin. But where a mixed fund is dedicated by the testator to certain specific purposes and distinguished by him from his general personal estate, that part of the mixed fund, which consists of personal estate only, will be resorted to for payment of costs, if the general personal estate be insufficient to defray them. And where a mixed fund is dedicated to specific purposes, and directed by the testator, on the occurrence of a certain event, to sink into and become part of his general personal estate, and that event does not happen, if the general personal estate prove inadequate to discharge the costs, their payment will be decreed out of that portion of the mixed fund which consists of personalty only. CHANCERY REPORTS. 217 1850. Chancery. CARE v. FITZGERALD. accumulate in the nature of compound interest ; upon trust as to the . accumulations, in the event of any son of Henry Vesey Fitzgerald Statement attaining twenty-one and succeeding to the title, to pay those rents and accumulations, and transfer the securities to such son, on attainÂing twenty-one and succeeding to the title, for his own use;; but if no such son should become entitled thereto, the will was as follows " Then I declare that the said accumulations shall form part of my general personal estate." Arid the testator declared that the estates in the county and county of the town of Galway should, in the event of any son of Henry Vesey Fitzgerald attaining twenty-one and the title, " stand limited to such and the same uses as are hereinbefore declared with respect to my estates in the county of Clare upon the decease of my said brother." And in the event of H. V. Fitzgerald dying without leaving any issue male who should attain twenty-one and succeed to the title, the testator declared that the Galway estates should be to the use of his sister Lady Mahon and her assigns for her life, and after her decease to the use of her first and every other son in tail male, with remainder to her right heirs. The will then limited the Clare estates, in case Henry Vesey Fitzgerald should die without leaving any issue male who should attain twenty-one and the title, to testator's sister Letitia Leslie Foster for life, with remainders over, and made the usual provisions with respect to the person becoming entitled to the Galway estates taking his sirname and arms. The testator next declared that an annuity, payable to his sister Catherine Geraldine Fitzgerald under his father's will, should be chargeable upon his estates in Clare and Galway only, and payÂable in equal moieties out of those estates, one half by the devisee or person for the time being in possession of the Clare estates, and the other half by the trustees, devisee, or person for the time being in possession of the Galway estates, giving the usual distraining power...