Close v Coote

• Jurisdiction: Ireland
• Judgment Date: 21 December 1880
• Date: 21 December 1880
• Court: Chancery Division (Ireland)

Appeal.

Before LORD O'HAGAN, L. C., and DEASY and FITZ GIBBON, L. JJ.

CLOSE

and

COOTE.

Wilson v. Piggott 2 Ves. Jun. 351.

Wombwell v. HanrottENR 14 Beav. 143.

Alloway v. Alloway 4 Dr. & War. 380, 390.

Clune v. Apjohn 17 Ir. Ch. R. 25, 38.

Armstrong v. Lynn I. R. 9 Eq. 186.

Alloway v. Alloway 4 Dr. & War. 391.

Foster v. Cautley 6 D. M. & G. 63.

Armstrong v. Lynn I. R. 9 Eq. 198.

Foster v. Cautley 6 D. M. & G. 67.

Walmsley v. VaughanENR 1 De G. & J. 114, 126.

Fortescue v. Gregor 5 Ves. 553.

Western 9 Ves. 456.

Lee v. HeadENR 1 K. & J. 620.

Alloway v. Alloway 4 Dr. & War. 380.

Foster v. Cautley 6 D. M. & G. 55.

Lee v. HeadENR 1 K. & J. 620.

Folkes v. Western 9 Ves. 456.

Clune v. Apjohn 17 Ir. Ch. R. 25.

Power of appointment — Objects to take equally in default — Absence of hotchpot clause — Appointment by indenture (executed by object) of part of fund "as and for her full share or proportion" — Appointee entitled to share in unappointed residue.

LAW REPORTS (IRELAND). [L. R. I. satisfactory if it had been decided by an inferior Court, as the Law Lords were equally divided. In the ease of the supreme tribunal all we have to look to is the decision. Lord Cairns says, at p. 382: "The question is, who is the devisee ? And that question must be answered by an examination of the whole will, and all the circumstances of the case legitimately in evidence ; an examiÂnation which becomes proper, and even necessary, as soon as it is found that the name inserted in the will is not the correct name of any person in existence." Lord Cairns makes no distincÂtion between the case of an executor and that of a legatee, and the portion of his judgment which I have read applies exactly to this case. I shall, therefore, make the following order :- IT is ordered by THE COURT that letters of administration of the goods of the deceased, with the said will, dated the 28th of July, 1881, annexed, do issue to Andrew Carroll, of Rathcoole, in the county of Dublin, farmer and publican (erroneously named Mathew Carroll in said will), as being universal legatee, in trust, of the said. deceased in said will named." Solicitors for Applicant : Messrs. Ennis Son. ' Appeal. CLOSE v. COOTE (1). 1880. June 30. Dec. 21. Power of appointment-Objects to take equally in default-Absence of hotchpot clause-Appointment by indenture (executed by object) of part of fund " as and for her full share or proportion"-Appointee entitled to share in unapÂpointed residue. Where by a settlement of 1827, containing no hotchpot clause, a fund was settled (after the usual life interests) on the children of the marriage as their mother, J., should appoint, and in default of appointment, equally ; and J., by deed of 1855, after reciting a desire to appoint to her daughter H. £2000, part of the fund, " as and for her full share and proportion thereof," accordingly appointed to her " the sum of £2000, part of and as and for her full share or proportion of and in" the fund-the appointment being made by indenture, which was also executed by H. :- Held (by DEASY and Frrz Gruff, L.JJ.), reversing the decision of (1) Before LORD &MOAN, L. C., and Dzkay and Fin GIBBON, L. Von. VII.] CHANCERY DIVISION. Chatterton, V. C. (disc. LORD O'HAGAN, C.), that H. was not precluded from claiming her distributive share in the ultimately unappointed residue of the fund. APPEAL by the Defendants John Gordon and Harriet Mary Gordon his wife, from so much of the Vice-Chancellor's decree of the 18th February, 1880, as declared that the unappointed reÂsidue of the sum of £11,000 in the pleadings mentioned became divisible in equal shares between the Defendant Maxwell Henry Coote and the personal representative, when raised, of Chidley Samuel Coote, deceased (1). (1) The Vice-Chancellor delivered the following judgment, February 18, 1880 :- CHATTERTON, V.C. :- The first question in this case is, whether the children the objects of the power, who died in the lifetime of either of their parents, having preÂviously attained age, or, in the case of daughters, having been married, have thereby become disentitled to partake of any part of the fund. remaining unappointed. The question arises in the present instance as to the unappointed residue of the sum of £11,000, which was the fortune of Mrs. Coote, inasmuch as the fortune of her husband has been fully exhausted by appointment. The words of the settlement in reference to this (passing over the trusts for the husband and wife) are " From and after the decease of the survivor of them the said. Jane Deborah Close and Chidley Coote, in case there shall be issue of the said intended marriage, then upon trust for all or any of the children of the said. intended marÂriage, or the issue, if any, of such children who may happen to die leaving issue, in such shares and. proÂportions, and payable at such age or ages, time or times, and subject tosuch conditions, restrictions and limiÂtations in favour of one or more of such children or issue as she the said Jane Deborah Close, by any deed or deeds, . . . or by her last will and. testament in writing, or any codicil thereto, . . . shall direct, limit or appoint; and in failure of such direcÂtion, limitation or appointment, or in case same shall be made and not take effect, or in case same shall not be a disposition of the whole of the said sums, then as to the same, or so much thereof concerning which no such disÂposition shall be made or take effect, upon trust for all or any of the chilÂdren of the said intended marriage, or the issue of any such children who may happen to die leaving issue, in such shares and proportions, and payÂable at such age or ages, time or times, and subject to such conditions and. restrictions, and to such limitaÂtions in favour of such one or more of such children or issue as the said Chidley Coote shall by any deed or deeds, . .. or by his last will, .. . direct, limit or appoint; and. in failure of such direction, limitation or apÂpointment, or in ease the same shall be made and not take effect, or in case same shall not be a. disposition of the whole of said sums, then as to the VOL. VII. 2Y LAW REPORTS (IRELAND). [L. It. I. The bill was filed on the 12th May, 1877, by Samuel Holt Close and Charles Sandes, as trustees of the settlement dated the 5th May, 1827, made upon the marriage of Chidley Coote and Jane Deborah Close, both since deceased, for the purpose of carÂrying out its trusts. By that deed, so far as its provisions are material to the present report, Miss Close's fortune of £11,000 was assigned to the then trustees, upon trust, after the marriage, to pay the interest of it to her for life, and after her death to Chidley Coote, and after the death of the survivor, upon trust for all or any of the children of the marriage, or the issue of any of those same, or so much thereof, of or conÂcerning which no such disposition shall be made or take effect, upon trust 'for the children of the said inÂtended marriage, and their respective executors, administrators or assigns, in equal shares and proportions ;. the 'share and shares of such of them as shall be a son or sons to be vested and payable and paid on his and their respectively attaining the age of twenty-one years, and the share and shares of such of them as shall be a daughter or daughters to be vested and payable and paid on her or their attaining her or their respective ages of twenty-one years, or day or days of marriage, whichever shall first happen; and in case there shall be but one child issue of said intended marriage, or only one who shall live to be entitled to receive such fortune or provision, then upon trust for such only child, to vest and to be paid to a son or to a daughter in manner and at the time and times hereinbefore menÂtioned. Provided, however, that if each time or times of payment of said several sums of money, or of any part thereof, shall take place before the death of the survivor of the said Chidley Coote and Jane Deborah Close, such payments respeetivelyshall be postponed till after the death of such survivor ; and provided always, however, that in case any of said children shall die before their beÂcoming entitled to payment of their said share or shares, then their share or shares shall go to the surÂvivors or survivor equally, in default of such appointment, and be payable at the time or times when the original share or shares would be payable, and the said accruing share or shares be liable to the same right of survivorÂship and time of payment. And provided also, that in case there shall be no child of said marriage who shall live to be entitled to receive such share or shares, then that the said" [trustees] " shall stand possessed of the same upon trust for such perÂson or persons as the said Jane DeÂborah Close shall, by deed or will appoint;" " and in failure of such apÂpointment as to the whole or any part thereof, for such person or persons as, at the time of the decease of the said Jane Deborah Close, shall be or would have been the next-of-kin under and according to the statute made for the distribution of estates of persons dying intestate, as if she had never been married, and had died inÂtestate." VOL. VII.] CHANCERY DIVISION. who should die leaving issue, as the wife should appoint ; and in default of such appointment, or so far as no such appointment should extend, then as the husband should appoint; and in deÂfault of such appointment by him, and so far as no such appointÂment should extend, then for all the children of the marriage, and their respective executors, administrators and assigns, in equal shares, to be vested and payable and paid as therein mentioned. [These trusts are set out at length in the Vice-Chancellor's judgment, infra.] There were four children of the marriage, viz., Chidley Samuel, There is here a plain and express Close, such payments respectively direction that the shares shall be vested shall be...