Devitt v Kearney

• Jurisdiction: Ireland
• Judgment Date: 10 March 1883
• Date: 10 March 1883
• Court: Court of Chancery (Ireland)

V. C.

DEVITT

and

KEARNEY.

Ex parte Langston 17 Ves. 227.

Ex parte KensingtonENR 2 V. & B. 79.

Ex parte NettleshipUNK 2 Mont. D. & De G. 124.

M'Neillie v. ActonENR 4 De G. M. & G. 744.

Brassey v. ChalmersENR 16 Beav. 231.

Thompson v. Todd 15 Ir. Ch. R. 337.

In re Butterfield 1 De Gex, 319.

Ex parte ButcherELR 13 Ch. D. 465.

Cutbush v. CutbushENR 1 Beav. 184.

Ex parte PerryUNK 3 Mont. D. & De G. 252.

Ex parte HooperUNK 2 Rose, 328.

Ex parte Hooper, Re HewittENR 1 Mer. 7.

Ex parte OakesUNKUNK 2 Mont. D. & De G. 60; 2 Gl. & J. 91.

Ex parte Butcher; in re MellorELR 13 Ch. D. 465.

In Bonifaut v. Greenfield Cro. Eliz. 80.

Crewe v. Dicken 4 Ves. 96.

In Lord Gramville v. M'NeileUNK 7 Ha. 156.

Brassey v. ChalmersENR 16 Beav. 223.

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

Ex parte Garland 10 Ves. 110.

Hankey v. Hammock 10 Ves. 112 (n.).

Ex parte RichardsonUNK 3 Mad. 138.

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

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

VOL. XL] CHANCERY DIVISION. 425 DEVITT v. KEARNEY. Y. a 1883. _Executors directed to carry on trade-Renunciation by one executor-Implied power to mortgage-Assets employed by testator in trade-Equitable mart- 14. Feb. March 14 10. gage. A testator by his will directed that his business should be 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. These were not devised to the executors. The testator had deposited the title-deeds of the premises with his bankers by way of equitable mortgage. The testator's widow, who proved the will, continued carrying on his trade ; and after his death she obtained from the bank a further advance for the purpose, as she stated, of carrying on the business, on the security of the deeds, which remained throughÂout with the bank : Held, that the direction to carry on the business was given to the executors virtute cii, and that all powers incident thereto were capable of being exercised by the acting executrix ; but Held also, that the freehold premises were not assets employed by the testator in the business at the time of his death, within the doctrine of 111'Neillie v. Acton (4 De G. M. & G. 744), so as to impliedly authorise the executrix to mortgage them for the purpose of carrying on the business, and that therefore the deeds were not a valid security for the advances made subsequently to the testator's death. JOHN KEARNEY, being seised in fee-farm of certain premises in the city of Limerick, where he carried on the business of a biscuit manufacturer, deposited, sometime prior to May, 1876, the title-deeds of the premises with his bankers, the National Bank, by way of equitable mortgage, to secure any moneys then or thereafter to be due. Kearney carried on the business of a biscuit manufacturer up to the time of his death, and also continued his dealings with the bank. He made his will, dated the 1st February, 1877, in the following terms :-" I deÂsire and direct that my business shall be carried on in the event of my death by my executors hereinafter named, and, so far as practicable, that they shall continue the persons whom I have at present in my employment, and that on my daughter Mary Kate attaining her age, she shall be associated with them in the management and conduct of the business. I desire, and it is my VOL. XI. 226 LAW REPORTS (IRELAND). [L. R. I. V. a wish and will, that my ten minor children and my two step-1883. children Patrick O'Donoghue and John James O'Donoghue shall _ DEVITT be entitled to their support and maintenance out of the profits of KEARNEY. the said business in the same manner as they have been maintained by me, until they shall respectively attain their age, and that my executors and the said Mary Kate, when she shall attain her age, shall be empowered to pay them, as they shall respectively come of age, such sum as they may consider each child would be entitled to as an equal share of my assets and property, and with power to them, if my assets and property should admit of it, to make them respectively advances, in order to put any of them, from time to time, to trade or business ; but same shall be wholly discretionary with my said executors and the said Mary Kate so soon as she shall be of age. I desire and direct that my daughter Mary Kate shall be entitled to an equal distributive share for her own benefit with the rest of my children. I desire that my wife Mary Anne Kearney shall be entitled to her support and maintenance out of my business for her life so long as she shall continue my widow. I desire that my sons John and Timothy shall be allowed to continue in the conduct of the business as they have hitherto been, but under the control of my executors, as hereinbefore provided, and with power to my executors to discontinue their services if they consider it expedient. I appoint my said ten minor children and my two step-children my residuary legatees. I appoint my said wife and my friend Mr. Timothy Sugrue executors of my will." The testator died on the 16th day of March, 1877, and probate of the will was, on the 2nd July, 1877, granted to the Defendant Mary Anne Kearney, the testator's widow, the said Timothy Sugrue having duly renounced. The testator was at the time of his death indebted to the National Bank in a sum of £333 2s. 11d., which was secured by equitable mortgage, created by deposit of the title-deeds of the business premises. After his death, his...