Cooney v Nicholls

• Jurisdiction: Ireland
• Judgment Date: 23 February 1881
• Date: 23 February 1881
• Court: Chancery Division (Ireland)

Appeal.

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

COONEY

and

NICHOLLS

Davenport v. ColtmanENR 9 m. & w. 481.

Mullally v. WalshUNK 3 L. R. Ir. 244.

Pitman v. StevensENR 15 East 505.

Windus v. Windus 6 D. M. & G. 549.

Alleyne v. AlleyneENR 2 Jo. & Lat. 544.

Hughes v. Pritchard 6 Ch. Div. 24.

Singleton v. TomlinsonELR 3 App. Cas. 404.

In Smyth v. Smyth 8 Ch. Div. 561.

Attree v. AttreeELRL. R. 11 Eq. 280.

Mannox v. GreenerELRL. R. 14 Eq. 456.

Day v. CroftENR4 Beav. 561.

In re More's Trust.ENR10 Hare 171.

Windus v. Windus 6 D. M. & G. 562.

Smyth v. Smyth 8 Ch. Div. 561.

In Kellett v. KellettENR 3 Dow P. C. 248.

Hamilton v. Foot I. R. 6 Eq. 572.

Williams v. ClarkeENR 4 De G. & Sm. 472.

Roody v. FitzgeraldENR6 H. L. C. 61.

Leach v. Jay6 Ch. Div. 496.

Rocke v. RockeENR 9 Beav. 66.

Saunders v. Vautier 1 Cr. & Phil. 240.

Gosling v. GoslingENR Johns. 265.

Hanson v. Graham 6 Ves. 239.

Leake v. RobinsonENR 2 Mer. 386.

Holmes v. Prescott 33 L. J. (Ch.) 264, 272.

Locke v. LambeELR L. R. 4 Eq. 372.

Mannox v. GreenerELR L. R. 14 Eq. 456.

Windus v. WindusENR 6 De G. M. & G. 558.

Harrison v. GrimwoodENR 12 Beav. 192.

Warren v. Newton Drury 464.

Evans v. CrosbieENR 15 Sim. 602.

Chapman v. Chapman 4 Ch. Div. 800.

Hardacre v. NashENR 5 T. R. 716.

Will — Construction — Gift for life, how far qualifying next succeeding bequests "also" to same person — Fund "to be given" to children "according as they become of age," sons at twenty-four, daughters at twenty-one — Vested legacy — "Residuary legatee" in juxtaposition with devise of reality, but without enlarging context —— Practice as to hearing counsel upon.

VOL. VII.] CHANCERY DIVISION. 107 limitations in the settlement were not valid, on the authority of the Land Judges. case of Knight v. Browne (1), irrespective of Mrs. Callan's fortune. 1881. Solicitors for Owner and Petitioner : Messrs. J. L. W: Seallan. Solicitor for Mrs. Callan : Mr. Thomas O'Meara. Solicitors for R. B. Daly : Messrs. Longfield,Davidson, cr Kelly. In re CALLAN'S ESTATE. COONEY v. NICHOLLS (2).• Appeal. Will-Construction-Gift for life, how far qualifying next succeeding bequests 1880. " also" to same person-Fund " to be given ".to children " according as Dee. 14, 15, 17. they become of age," sons at twenty-four, daughters at twenty-one-Vested legacy-" _Residuary legatee" in juxtaposition with devise of realty, but with- 1881. out enlarging context-Notice byl way of cross-appeal (Sched. Rule 36)-... Feb. 23. Practice as to hearing counsel upon. In 1869, C. bequeathed his house to his wife "during her life, also the interest of my money in the Government Funds, also my furniture, except a bed and bedding to be given to my nephew ;" and he then left her his silver plate. He further " disposed of " a mortgage debt due to him by directing it " to be paid back," and " the whole sum to be given " to his brother R. C.'s children " according as they become of age, the boys at the age of twenty-four years, and girls at twenty-one years each." He then declared that a fee-farm rent to which he was entitled was to be paid to his trustees " in the first in-, stance, and handed over " to the same children " to be disposed of as heretoÂfore directed," and he next " also " left them another fee-farm rent. By a codicil made in 1872, he left his wife some freehold houses for her life, and in the next sentence appointed his nephew G. C. his '! residuary legatee." Held (1), affirming the decision-of Chatterton, V. C., (a) that the testator's wife took the Government Funds and the furniture absolutely; (b) that the gifts of the fee-farm rents were vested ; and (c) that the real estate did not pass under the gift to G. C. as " residuary legatee " (2), reversing the decision below, that the bequests of the mortgage debt were also vested. A notice by way of cross-appeal under Schedule Rule 36 may be disposed of on the hearing of the original motion, and need not come on as 'a separate substantive appeal. (1) 30 L. J. Ch. 649. DEASY, and FITZ Gamic, L.JJ. (2) Before LORD O'HAGAN, C., and 108 LAW REPORTS (IRELAND). (L. R. I. Appeal. APPEAL by the Plaintiff, seeking to have the judgment of the 1880. Vice-Chancellor, of the 30th of July, 1880, reversed so far as it de COONEY dared. (1) that, under the legacy to the testator's wife Margaret Nicuous. Christie, of the interest in his money in the Goverment Funds, the capital thereof passed to her ; (2) that by the bequest to her of the testator's furniture, the same was given to her absolutely ; (3) that the devises of the lands of Uttyneal and Newrath were vested gifts, and that the rents thereof were given to the devisees -with their respective shares of these lands ; and (4), that the real estate of the testator did not pass under the codicil to his will to the Plaintiff as residuary legatee, and that such real estate deÂscended to the testator's heir-at-law ; and that an inquiry should be made as to his heir-at-law, and that the real estate should be sold. There was also a notice by way of cross-appeal on behalf of Mary Christie and Anne Christie, infant Defendants in the cause of Christie V. Nicholls, by Robert Christie, their next friend, that on the hearing of the appeal counsel on their behalf would contend that so much of the same judgment as declared that the bequest of £2500 to the children of Robert Christie was a gift to them contingently on such of them as were sons attaining twenty-four, or on such of them as were daughters attaining twenty-one, and. that the income thereof in the meantime was not specifically disÂposed of by the will, and passed to the Plaintiff as residuary legatee, should be reversed, and would seek to have it declared that such bequest was absolute, the time of payment only being postponed. The suit was commenced by bill filed on the 24th of February, 1877, by George Cooney, the residuary legatee, for the adminisÂtration of the real and personal estate of John Christie, and the carrying out of the trusts of his will, and stating substantially as follows : John Christie was, at the dates of his will and of his death, seised. and possessed of considerable real and personal property, comprising inter alia a debt of £2500 secured. by mortgage, dated the 16th July, 1869, and two fee-farm rents of £52 8s. 6d., and £40 2s. 9d., respectively, payable out of the lands of Uttyneal Vol,. VII.] CHANCERY DIVISION. 109 and. Newrath. The material portions of his will were as fol- Appeal. lows :- 1880. "The last will and:testament of John Christie, of Hells, in the county of Meath, farmer and shopkeeper, made the 4th day of September, 1872.-I give and bequeath to my dear wife my house and concerns in John-street, Kells, aforesaid, during her life ; also the interest of my money in the Government Funds ; also my furniture, except a bed and bedding, to be given to my nephew George Cooney ; I also leave her all my silver plate and my field at the CourtÂhouse, Bells, my horse, car, phaeton, harness, and also my cow . . . . The folÂlowing three persons to be my executors, to each of whom I leave £20, sixty in all : The Very Rev. John Nicholls, V. G., P. P. The Rev. Michael FitzÂsimons, C. C., Mr. Michael Freeman, all of Kells. The money which I lent to James Armstrong, of Newrath, Kells, £2500, I dispose of as follows :-To be paid back, the whole sum to be given to my brother Robert Christie's children, my nephews and nieces, according as they become of age, the boys at the age of twenty-four years, and girls at twenty-one years each. The interest in my property at Illtyucal I dispose of as follows :-The rent thereof to be paid to my executors or trustees in the first instance, and handed over to the children of my brother Robert Christie, to be disposed of as heretofore directed, two shares to the boys and one to the girls. The £40 2s. 9d. which I am entitled to out of the lands of Newrath I leave also to my...