Denys Scully, James Scully and Others, Jeremiah Scully, Administrator of Catherine Scully Diseased, Francis Arthur, Appellants; John Tuthill and Others, Respondents

Judgment Date13 June 1825
Date13 June 1825
CourtHouse of Lords (Ireland)

H. of Lords.


JOHN TUTHILL and others,

CASES IN EQUITY. 557 1825. H. of Lord:. _En the *auk of 91..arb$14 June 13. Tins cause came on to be heard on an appeal from the decree of the On a bill filed n i 1816, Lord Chancellor of Ireland (Lord Manners). specific the for execn On the 27th day of November 1816, the original bill in this cause tion of a cove nant contained was filed by the late Mrs. Catherine Scully deceased, against the in marriage articles,- al appellants Denys and James Scully, and against Denys Lyons the leged to have heir-at-law and personal representative of Denys Lyons deceased, been executed praying in 1760 ,but ng that the covenant contained in the marriage articles, alleged then to be lost to have been executed on the 17th of September 1760, might be or destroyed ; in which the specifically executed ; and accordingly that the plaintiff be decreed covenantor entitled to one-third part of all the property, real, freehold and - agreed to be queath by will personal, to which the covenantor James Scully was entitled at the to his intended wife, in case time of his decease ; and that the plaintiff's rights under the articles g survivedi might be ascertained ; and also praying the necessary accounts for him, that purpose ; and that one-third of the profits made by his bankin stce w concerns since the time of his death might be decreed to belong to hea n should i die e the plaintiff; and for a receiver, &c. possessed of or The original bill for this purpose stated, that by indented articles Aentdi decree e u of nttoh.e between James Scully, then of Dually, in the county of Tipperary, of agreement, bearing date the 17th of September 1760, and made Lord Chan- rn- eg. gentleman, of the one part ; Denys Lyons of Croom, for and on, ort the if aasltuotefhheraemtl eel smgtero- yd behalf of plaintiff, by the name and description of Catherine Lyons b- ear spinster, one of the daughters of Denys Lyons, of the other part; articles,cles, ing date the 1st and by which said articles it was recited that a marriage was then of February shortly intended to be had and solemnized between James Scully tillot63e, thh and the plaintiff; and in consideration thereof, and of the marriage by the cove- portion of noo therein mentioned, James Scully did for himself, rs.bwleasin his executors and administrators, covenant and promise to and with evidence against those claiming under him, not only of the execution, but contents of those articles. Also, that the words "fortune or substance," contained in the covenant, emÂbraced and included within them as well the covenantor's real as personal property, was affirmed by the House of Lords on appeal. 558 CASES IN EQUITY. Denys Lyons, his executors and administrators, that he James Scully should by some deed, to be by him executed in his lifetime, attested by two or more credible witnesses, or by his last will and testament in. writing, executed and attested as aforesaid, leave, bequeath, or give to the said Denys Lyons, or to some other person in trust for and to the use of plaintiff, his then intended wife, if she should happen to survive him, not having any issue living at the time of his decease, the one moiety or half of the fortune or substance that he James Scully should die possessed of or entitled to ; but that if there should be issue living of the said marriage at the time of the decease of the said James Scully, that then he James Scully should in manner aforesaid give or bequeath to the use of plaintiff one-third part of the fortune or substance which he James Scully should die possessed of or entitled unto ; that the said articles were duly registered in the city of Dublin on the 1st of February 1763; that the marriage, shortly after the execution of the said articles, took effect, and that there was issue thereof several sons and daughters; that no deed pursuant to the covenant was executed by James Scully in his lifetime, nor did he by his will give to plaintiff one-third of his fortune or substance whereof he died possessed or entitled unto ; that he James Scully departed this life on or about the 11th of February 1816, leaving plaintiff his widow, Denys Scully his eldest son and heir-at-law, James Scully his second son, and several other children; that the said James Scully, previous to his death, made his will, and thereby bequeathed to plaintiff a moiety of his houseÂhold furniture, plate, &c., being in his dwelling-house at Kilfeacle, at his decease, with his chaises and certain other chattels, to be selected by the plaintiff, and also his dwelling-house in the town of Tipperary, called the Bank House, excepting only the bank rooms adjoining to the dwelling-house of his son James Scully, to hold for the term of the plaintiff's life ; as also an annuity of £1000 a-year above taxes, to be paid to the plaintiff during her natural life, £200 whereof to be paid immediately after his decease, and chargeable upon certain lands in said will particularly mentioned ; and that the testator appointed plaintiff and Denys Scully his eldest son and James Scully his second son executors of said will, and thereby declared that the several bequests were so made to the plainÂtiff by his will, and. might be taken and considered by her as in lieu and full satisfaction of her claims on the testator's property under her marriage articles or otherwise, unless she should in one month after the testator's decease declare to his residuary legatees her election to the contrary in writing. The bill then stated that the testator was at the time of his death possessed of or entitled to a CASES IN EQUITY. 559 considerable personal estate and a large real estate ; and that the 1825. of Lor d. defendants Denys and James Scully entered into possession of all H. his property, real and personal, and being the surviving partners ,of SCULLY his bank, that they continued to carry on the business of bankers v. SCULLY. with the capital stock as it stood at his death. The bill further stated, that Denys and James Scully were the principal devisees Statement. under the will of the testator, and that the testator left other sons and daughters small legacies bequeathed to them by the will ; that Denys and James Scully, being well aware o: the nature and amount of the real and personal estate whereof their said father died seised and possessed, and also fully conversant of the plaintiff's rights under her marriage articles, considered it would be more for their interest that plaintiff should elect to take under her husband's said will than under the said marriage articles ; that on the day after the death of the plaintiff's husband, Denys and James Scully caused his will to be opened and read in the plaintiff's presence, and immeÂdiately after the reading of the will, some paper writing drawn up and in the handwriting of either Denys or James, and dictated by them or either of them, was presented to the plaintiff by the said Denys and James, and plaintiff was prevailed upon by them to sign the same, and which the plaintiff thereby averred she did in ignoÂrance of her rights under her marriage articles ; and without the same being at all stated to her by the said Denys and James Scully, or either of them, and without deliberation or advice, and without consideration, and not being fully or at all acquainted with the nature and value of the testator's property, nor was the nature or amount thereof then fully or at all ascertained. The plaintiff subÂmitted that such an act on her part did not amount to a release or abandonment of her rights under her marriage articles; and that having had a clear right to elect to take either under her marriage articles or under her husband's will, her husband could not by any provision in his will deprive her of her rights to take under her marriage articles, or abridge the time she would otherwise have for making such election, nor was she compellable to make that election until the nature of the different funds was fully ascertained; that on signing the said paper writing, Denys and James Scully handed to her a sum of £200, which plaintiff accepted of, having no other means of support, and had since received sums of money from the bank of Tipperary which was necessary for the support of her house, &c. On the 30th of April 1817, the defendants (the appellants) Denys and James Scully filed their joint and several answers to the original bill ; and thereby stated they knew not whether the articles in the 560 CASES IN EQUITY. 1825. bill mentioned were entered into as therein stated. They admitted H. of Lords. that no deed pursuant to the covenant in the bill alleged was SCULLY executed by James Scully in his lifetime ; that he did not by his Will give to the complainant one-third part of the fortune or sub SCULLY. stance whereof he died possessed or entitled to, although he thereby Statement. gave her a very ample property, with which they alleged she expressed as well in the lifetime of her husband as after his decease, that she was fully satisfied, and would accept in full satisfaction of any rights she would be entitled to under the said articles or other wise. The answer then set out the testator's will, as stated in the bill, and proceeded to state, that they were aware, from general knowledge only, but not so intimately as the complainant was, of the nature and amount of the real and personal estate whereof their father died possessed, that they were not conversant with the complainant's alleged rights under her marriage settlement, save that they were apprised that she did in the lifetime of her husband claim title to certain part or share of the property of which he died possessed, to her own use in the event of her surviving him, and that finally she and her husband came to a solemn agreement, by which she pledged...

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