Devitt v Kearney

• Jurisdiction: Ireland
• Judgment Date: 27 June 1883
• Date: 27 June 1883
• Court: Unspecified Court

Appeal.

Before LAW, C., MAY, C. J., and FITZ GIBBON, L. J.

DEVITT

and

KEARNEY

Brassey v. ChalmersENR 16 Beav. 223, 235.

Lord Granville v. M'NeileENR 7 Hare 156.

Ex parte Butcher, in re Mellor 13 Ch. Div. 465.

Ex parte KensingtonENR 2 V. & B. 79.

James v. Rice 5 D. M. & G. 461.

Ex parte Lloyd, re Ablett 1 Glyn & Jameson 389.

M'Neillie v. Acton 4 D. M. & G. 744.

Hall v. Fennell I. R. 9 Eq. 615, 618.

Silk v. PrimeENR 1 Bro. C. C. 138; 2 Wh. & Tud. L. C. (4th ed.) 111.

M'Neillie v. Acton 4 D. M. & G. 744.

Doe d. Jones v. HughesENR 6 Exch. 223.

Elliott v. MerrymanECAS 1 Wh. & Tud. L. C. (1877) 64.

Boylan v. FayUNK 8 L. R. Ir. 374.

Thompson v. Andrews 1 M. & K. 116.

In re Johnson 15 Ch. Div. 548.

M'Neillie v. Acton 4 D.M. & G. 744.

Hall v. Fennell I. R. 9 Eq. 615.

Cutbush v. CutbushENR 1 Beav. 184.

Ex parte Garland 10 Ves. 110.

In re Butterfield 17 L. J. Bnkcy. 10; 1 De Gex 319.

Executors directed to carry on trade — Renunciation by one executor — Implied power to mortgage — Assets employed by testator in trade — Equitable mortgage of freehold business premises.

VOL. XIII.] CHANCERY DIVISION. 45 Land Judges. 1884. was due, that this was eminently a case in which it was "just and convenient " that such order should be made ; and HIS LORDSHIP consequently made a conditional order for the appointment of a Receiver over the lands as sought. Solicitor : Mr. T. F. O'Dowd. In re ESTATE. DEVITT v. KEARNEY (1). Executors directed to carry on trade-Renunciation by one executor-Implied power to mortgage-Assets employed by testator in trade-Equitable mortÂgage of freehold business premises. A testator by his will directed that his business should he carried on by his executors thereinafter named, and appointed as such his wife and S., the latter of whom renounced probate. The testator had carried on his trade in premises of which he was seised for a freehold estate, and these were not devised to the executors. He had deposited the title-deeds of these premises with his bankers by way of equitable mortgage. His widow, who proved the will, continued carrying on his trade, and after his death she obtained from the bank further advances (some of which were made before probate) for the purpose, as she stated, of carrying on the business, on the security of the deeds, which remained throughout with the bank : Held (affirming the decision of Chatterton, V. C.), (a) that the absence of a devise of the freehold premises to the executors did. not prevent their making a valid mortgage thereof ; (b) that the fact that some of the advances were made before probate was immaterial ; (c) that the direction to carry on the business was given to the executors virtute officii, and that all powers incident thereto were capable of being exercised by the acting executrix alone ; and (d) that a fresh deposit of the title-deeds was unnecessary. Held, also (reversing the decision below), that the freehold premises were assets employed by the testator for the purpose of his business at the time of his death, and that the executrix was impliedly authorised to mortgage them for the purpose of carrying on the business, and therefore the deposit constituted a valid security for all the advances. Hall v. Fennell (I. R. 9 Eq. 615) discussed. APPEAL by the Plaintiff from the judgment of the Vice-Chancellor of the 10th of March, 1883, dismissing the action so (1) Before LAW, C., MAY, C. J., and Firz GIBBON, L. J. VOL. XIII. 46 LAW REPORTS (IRELAND). [L. R. I. Appeal. far as it sought relief on foot of equitable mortgages effected by 1883. the executrix of John Kearney, the testator. The hearing DEVITT below is reported, 11 L. R. Ir. 225, where the facts are fully v. KEARN Ey. stated. 11Ir. Carton, Q. C., and Mr. William Kenny, for the AppelÂlant :- Where executors were given a power to sell real estate for payment of debts, it was held that the survivor could make a good title : Brassey v. Chalmers (1) ; and it is a fortiori in the case of an , acting executor whose co-executor renounces. The statute 21 Hen. VIII. c. 4, referred to in the Vice-Chancellor's judgment, enabled the acting executors to make a good title to realty devised to all the executors (2;. It has been also held that the acting executors could make a valid appointment of new trustees under a power conferred upon all the executors : Lord Granville v. M'LYeile (3) ; see also Sugden on Powers, c. 4, s. 1, pp. 127-8. Ex parte Butcher, in re _Mellor (4) was relied on by the Defendant in the Court below, but in that case there was no renunciation by the executors. Next, the equitable mortgage was valid as a security without a...