Carey v Cuthbert

• Jurisdiction: Ireland
• Judgment Date: 11 June 1875
• Date: 11 June 1875
• Court: Rolls Court (Ireland)

Rolls.

CAREY

and

CUTHBERT.

Stringer v. GardinerENRUNK 27 Beav. 35; S. C. on App. 4 D. & J. 468.

In re Ingles' TrustsELR L. R. 11 Eq. 578.

Humble v. HumbleUNK 2 JUr. 696.

In Massy's Estate 14 Ir. Ch. R. 355.

Scott v. Knox4 Ir. Eq. R. 397.

Downes v. BullockENR 25 Bwav. 54; S. C. on App. 9 H. L. C. 1.

Clarke v. HartENR 6 H. L. C. 655.

Archbold v. Scully 9 H. L. L. 360.

Cox v. Dolman 2 D. M. & G. 592.

Young v. Lord WaterparkENRUNK 13 Sim. 204; on App. 10 Jur. 1; 15 L. J. (N.S.) Ch. 63.

O'Connor v. HaslamENR 5 H. L. C. 170.

Ravenscroft v. Frisby 1 col. 16.

Askew v. ThompsonENR 4 K. & J. 620.

Grant v. GrantELR L. R. 5 C. P. 380.

Bennett v. MarshallENR 2 k. & J. 740.

Bright v. LegertonUNK 2 D. F. & J. 606.

Harcourt v. whiteENR 28 Beav. 303.

Coope v. Carter 2 D. M. & G. 292.

Chalmer v. Bradley 1 J. & W. 51.

Sibbering v. Earl of BalcarrasENR 2 De G. & Sm. 735.

Attorney-General v. The Fishmonger's CompanyENR 5 My. & Cr. 16.

Colyer v. FinchENR 5 H. L. C. 905.

Scott v. JonesENR 4 Cl. & Fin. 382.

O'Connor v. HaslamENR 5 H. L. C. 170.

Burke v. JonesENR 2 v. & B. 275.

Smith v. Clay 3 Br. C. C. 639 n.; Ambl. 645.

Wedderburn v. Wedderburn 4 M. & Cr. 41.

Knox v. Kelly 6 Ir. Eq. R. 279.

Piggott v. JeffersonENR 12 Sim. 26.

Fergus v. Gore 1 Sch. & Lef. 107.

Hunt v. Bateman 10 Ir. Eq. R. 360.

Ravenscroft v. Frisby 1 Col. 16.

Harcourt v. WhiteENR 28 Beav. 303.

Legacy — Trust — Statute of Limitations — Laches.

THE IRISH REPORTS. CAREY D. CUTHBERT. Legacy-Trust-Statute of Limitations-Lades. T. R., by his will made in 1812, directed that, if his personal estate should be insufficient to pay his debts and the legacies which he thereby, or should thereafter, by any codicil, bequeath, the deficiency should be a charge on his real estates ; and by a second codicil, made in 1830, he bequeathed legacies to " M. K., of New York, in the United States of America, or elsewhere, and to his nephew F. K., £10,000 each." T. R. died in 1831; and IL K.-who had been his most intimate friend, and who, if living at the date of the second codicil, would have been then 105 years old-had died so far back as 1797 ; but there was no evidence to show, as a matter of fact, that T. R. knew of his death. M. K. had a nephew, F. K., who was dead at the date of the second codicil, of which T. R. was then aware. In 1832 and 1834 one F. K., who lived in. America, and a grandnephew of M. K., but of whose existence there was no evidence that T. R. was aware, claimed the legacy from T. C., who was the executor of T. R., and also the devisee of his real estates ; but T. C. resisted the claim, and asserted that the claimant was not the person intended by the second codicil to get the legacy ; and F. K., who had never left America, died there in 1837. In 1844, J. C. K., the then owner of the real estates (deriving through T. C.), devised them in. trust to raise a sufficient sum to pay the in-cumbrances then affecting them, or so much thereof as should be due at his death, and died in 1850. No interest was paid on the legacy to F. K., and no further claim to it was made until 1865 and 1867. On a bill, filed in 1872, praying payment of the legacy and the benefit of the trust in the will of J. C. K. :-Held, that the claim was barred by lapse of time and laches, even assuming that F. K. might possibly have shown a state of facts establishing that he was the person entitled to the legacy on the principles laid down in Stringer v. Gardiner (27 Beay. 35 ; 4 D. & J. 468), and that an express trust was created by the will of T. C. K. for payment of existÂÂÂing charges. BILL to raise the amount of a legacy, and to have the benefit of an express trust. The will bequeathing the legacy, that, creating the trust, the arguments of the counsel, and the facts of the case on which the decision of the Court was founded, are fully stated in his Honor's judgment. The following pedigree, referred to by his Honor, was proved in the Landed Estates Court and in this Court. PEDIGREE. EDMUND KEARNEY r ELEANOR ROCHE. Elizabeth Britton = Michael Kearney, Secretary :... Sarah Morris. James Larne), = Mary Savefield.. I of New Jersey, died 1741. 1 Susan Ravaud = Philip Kearney, = Isabella Hooper. Michael Marne),, 1 arney, Captain Michael Kearney, Francis Kearney. lacy - Itoohfort, 1 Barrister, New Jersey. Irish Lot., died 1797. died 1789. I T I 1 ,. Philip Kearney, Elie I abeth, RaraudI Kearney. Michael1 Kearney. Francis Kearney, = Anne Herbert, James Kearney, Thomas Cuthbert r..-_-..' LIucy. Thom tiiatoRrochfort, 1 li - of Perth, Amboy, Colonel, Bar- of Muckross. owner of Gar- . . died Skinner Susan Watts. General Cortlandt died 1791. . rack Master, . rettstown John Watts Kearney. James Parker. Cortlandt Parker. M4 THE IRISH REPORTS. [I. R. Mr. Serjt. Sherlock, Mr. Jackson, Q. C., and Mr. Phillips, for 1873. the Plaintiff, cited, on the question of the identity of Francis CARET Kearney, the legatee : Stringer v. Gardiner (1) ; In re Ingles' v. Trusts (2) : on the question of laches : Humble v. Humble (3) ; In CUTIEBERT. re Mass,y's Estate (4) ; Scott v. Knox (5) ; Downes v. Bullock (6) ; Clarke v. Hart (7) ; and, on the question of the Statute of LimitaÂÂÂtions, Archbold v. Scully (8) ; Cox v. Dolman (9) ; Young v. Lord Waterpark (10) ; 0' Connor v. Haslam (11) ; Ravenscroft v. FrisÂÂÂby (12) ; Askew v. Thompson (13). Mr. Jellet, Q. C., Mr. 0' .Hagan, Q. C., and Mr. Price, for the Defendant, Cuthbert. Mr. May, Q. C., and Mr. Bewley, for the Trustees, Franks and Fortes : cited, on the question of identity, Wigram Ext. Evidence 3rd and 5th propositions, pp. 42, 77 ; Grant v. Grant (14) ; Bennett v. Marshall (15) : on the question of laehes : Bright v. Legerton (16,; Harcourt v. White (17); Coope v. Carter (18); Chalmer v. BradÂÂÂley (19) : on the Statute of Limitations : Sibbering v. Earl of Balcarras (20); Attorney-General v. The Fishmongers' Company (21); Colyer v. Finch (22) ; Scott v. Jones (23) ; O'Connor v. Haslam (24) ; Burke v. Jones (25) ; Smith v. Clay (26); Wedderburn v. WedderÂÂÂburn (27); Knox v. Kelly (28) ; Piggott v. Jefferson (29); Fergus v. Gore (30) ; Hunt v. Bateman (31). (1) 27 Beay. 35; S. C. on App. 4 D. (15) 2 K. & J. 740. & S. 468. (16) 2 D. F. & J. 606. (2) L. R. 11 Eq. 578. (17) 28 Bear. 303. (3) 2 Jur. 696. ' (18) 2 D. M. & G. 292. (4) 14 Ir. Ch. R. 355. (19) 1 J. & W. 51. (5) 4 Ir. Eq. R. 397. (20) 2 De G. & Sm. 735. (6) 25 Beay. 54; S. C. on App. 9 (21) 5 My. & Cr. 16. E. L. C. 1. (22) 5 H. L. C. 905. (6) 6 H. L. C. 655. (23) 4 Cl. & Fin. 382. (7) 9 H. L. C. 360. (24) 5 H. L. C. 170. (8) 2 D. M. & G. 592. (25) 2 V. & B. 275. (9) 13 Sim. 204; on App. 10 Jur. (26) 3 Br. C. C. 639n.; Ambl. 645. 1; 15 L. J. (N. S.) Ch. 63. (27) 4 M. & Cr. 41. (8) 5 H. L. C. 170. (28) 6 Ir. Eq. R. 279. (9) 1 Col. 16. (29) 12 Sim. 26. (10) 4 K. & J. 620. (30) 1 Sch. & Lef. 107. (11) L. R. 5 C. P. 380. (31) 10 Ir. Eq. R. 360. VOL. VII.] EQUITY SERIES. 545 THE MASTER OF THE ROLLS Rolls. The bill in this cause was filed on the 2nd of March, 1872, by 1873. 'William Carey, who is the administrator of a Mr. Francis Kearney, CAREY deceased, against Mr. Thomas Cuthbert and the other Defendants, - CUTHBERT. to raise a legacy of £10,000, and interest thereon from a remote date, viz., the 9th of November, 1844 (the amount of which inte- July 3. rest is larger than the legacy itself) out of the lands of the DeÂÂÂfendants. The evidence given in the cause is of a most voluminous character, embracing an immense number of documents of every description, but the facts which appear to me to be material can be stated within a short compass. The late Mr. Thomas Rochfort, of Garrettstown, in the county of Cork, being entitled to extensive estates in the county, city, and liberties of Cork, and in the county of Limerick, made his will on the 21st of August, 1812, which will, after devising the lands of Knapogues, and other property which he derived under the will of his brother, David Rochfort, to a Mr. George Rochfort RayÂÂÂmond absolutely, proceeds as follows : "Whereas upon the death of my cousin James Kearney, Esq., late of GarÂÂÂrettstown aforesaid, without lawful issue, I, as heir-at-law of the said James Kearney, became seised of several estates in the said county of Cork, city of Cork, and liberties of the city of Cork and county of Limerick, now I do hereby give, devise, and bequeath unto my beloved wife Jane Rochfort all my estates and properties, of what nature or kind of which I am seised, situate, lying, and being in the baronies of Courcy, East Carberry and Kinalea, and half barony of Kinalea, and in the town and liberties of Kinsale, and all other estates of which I am seised and possessed of in said county of Cork, save and except the lands and premises hereinbefore devised to the said George Rochfort Raymond, and save and except my estates in the barony of Kerricurrihy, in the said county of Cork, my estates in the city and liberties of Cork, and my advowsons and right of presentation to the several parishes in said county of Cork hereinafter menÂÂÂtioned, and save and except my estate in the county of Limerick, by whatsoever name or names, description or descriptions, the said lands and premises so hereby devised or intended to be devised to my said wife, situate as aforesaid in the baronies of Courcy, &c., is or are reputed, known, or called, in as full, ample, and beneficial manner as the same, and every part thereof, was or were heretoÂÂÂfore held and enjoyed by the said James Kearney, and are now held and enjoyed by me ; together with all timber, &e., and the rectorial and other tithes arising or accruing out of the parish of St. Multose, Kinsale ; to hold all and singular the said hereby devised or intended to be devised several lands and premises, &c., unto the said Jane Rochfort, her heirs, executors, administrators and assigns, accordÂÂÂing to the...