Duggan v Duggan

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

Appeal.

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

DUGGAN

and

DUGGAN.

Langston v. Blackmore Ambl. 289.

M'Queen v. Farquhar 11 Ves. 467, 479.

Cockcroft v. Sutcliffe 25 L. J. Ch. (N. S.) 313.

Green v. PulsfordENR 2 Beav. 70.

Beddoes v. PughENR 26 Beav. 407.

In re Huish's CharityELR L. R. 10 Eq. 5.

Campbell v. HomeENR 1 Yo & Coll. Ch. Cas. 664.

In Connolly v. M'Dermott Beatty, 601.

Askham v. BarkerENR 17 Beav. 37.

Pryor v. Pryor 2 De G. Jo. & Sm. 205.

Jackson v. Jackson Drury, temp. Sugd., 91.

Topham v. Duke of PortlandENRUNKENRELR 31 Beav. 525; 1 D. J. & S. 517; 11 H. L. C. 32; L. R. 5 Ch. App. 40.

Askham v. BarkerENR 12 Beav. 499.

Weir v. Chamney 1 Ir. Ch. R. 295.

D'Abbadie v. Bizoin I. R. 5 Eq. 205.

Davis v. Uphill 1 Swanst. 129.

Skelton v. Flanagan I. R. 1 Eq. 362, 369.

Rhodes v. CookENR 2 Sim. & Stu. 488.

Arnold v. HardwickENR 7 Sim. 343.

Humphrey v. Olver 28 L. J. Ch. (N. S.) 406.

Cockcroft v. Sutcliffe 25 L. J. Ch (N. S.) 313.

M'Queen v. Farquhar 11 Ves. 467.

Green v. PulsfordENR 2 Beav. 70.

Topham v. The Duke of PortlandENR 11 H. L. C. 32.

Re Huish's Charity L R. 10 Eq. 9.

Re Huish's Charity L R. 10 Eq. 5.

Appointment Fraud or power Personal benefit of donee.

152 LAW REPORTS (IRELAND). [L. R. I. M. B. the Court, or a winding up under the supervision of the Court. 1879. The General Order does not warrant a petition or an advertisement In re such as I have before me. CORK SHIP PING AND In my opinion this proceeding fails in substance and in form, MERCANTILE mpANy. and the prayer of the petition must be refused with costs. co DUGGAN D. DUGGAN (1). Appointment-Fraud on power-Personal benefit of donee. Where the tenant for life of a fund, with power of appointment among her children, made an agreement with such of them as had attained full age to appoint the fund to them, on condition that they should purchase her life inteÂÂrest at a valuation, and pay her the purchase-money out of the fund se appointed :- Held (affirming the decision of Chatterton, Y. C.), that the appointment was bad, as its primary object and only certain effect was to confer an immediate personal benefit upon herself alone, even though, pursuant to the agreement, she applied the greater part of the money so obtained in payment of debts which the appointees had joined her in securing, and which had been conÂÂtracted by her for the benefit of her family, and in keeping up a farm where they all resided. APPEAL by the Plaintiffs from the Vice-Chancellor's judgment of the 31st of July, 1880, dismissing the action. The facts are fully set out in the report below, 5 L. R. Ir. 525, and are also suffi ciently stated in the LORD CHANCELLOR'S judgment. Mr. H. FitzGibbon, Q. C. (with him Mr. J. T. Geoghegan), for the Appellants : The children were benefited by the transaction in this case, and the Court will not weigh the quantum of the consideration for the Plaintiffs' purchase : Langston v. Blackmore (2). There was no fraud to vitiate the appointment : 31-' Queen v. Farquhar (3) ; Cock (1) Before LORD °MOAN, C., and (2) Ambl. 289. DEASY and FITZ GIBBON, L.JJ. (3) 11 Yes. 467, 479. VOL. VII.] CHANCERY DIVISION. 153 croft v. Sutcliffe (1) ; Green v. Pulsford (2) ; Beddoes v. Pugh (3) ; Appeal. In re Huish's Charity (4). There is no objection to an assignment 1880. of the interest of the tenant for life to an appointee : Campbell v. DUGGAN v. Home (5). • In Connolly v. MIDermott (6) the decision of Lord n III2tGAN. Manners was reversed by the House of Lords because the donee of the power' had stipulated for a benefit for himself : Sugden on Real Property as administered in the House of Lords, p. 514 ; but in the present case there was no such stipulation. The burden of proving the invalidity of an appointment lies on the person seekÂÂing to set it aside : Askham v. Barker (7). Mr. Lawless, Q. C., and Mr. C. Brady, for the infant ResponÂÂdents : The appointment is void, as made upon a bargain for the benefit of a person not an object of the power : Pryor v. Pryor (8) ; Jackson v. Jackson (9) ; Topham v. Duke of Portland (10) ; Askham v. Barker (11) ; Weir v. Chamney (12) ; D' Abbadie v. Bizoin (13). The motives of appointors as to benefiting the objects cannot be looked to ; the purpose of the donor can alone be regarded : see Farwell on Powers, 342, 345. The bargain having been the basis of the appointment here vitiates the execution. In Davis v. UpÂÂhill (14), where a transaction by which the appointor's estate for life previously impeachable of waste was made not impeachable of waste was upheld, the circumstances were peculiar, and all the obÂÂjects joined in the deed ; and so in Skelton v. Flanagan (15) ; but the appointor must strictly carry out his part of the agreement : Rhodes v. Cook (16). There can be only a valid bargain in such eases where either the objects are all of age and join in it, or where, though the appointment be to only some of the objects, it is yet for (1) 25 L. J. Ch. (N. S.) 313. (2) 2 Beay. 70. (3) 26 Beay. 407. (4) L. R. 10 Eq. 5. (5) 1 Yo. & Coll. Ch. Cas. 664. (6) Beatty, 601. (7) 17 Beay. 37. (8) 2 De G. Jo. & Sm. 205. (9) Drury, temp. Sugd., 91. (10) 31 Beay. 525 ; 1 D. J. & S. 517 ; 11 H. L. C. 32 ; L. R. 5 Ch. App. 40. (11) 12 Beay. 499. (12) 1 Ir. Ch. R. 295. (13) I. R. 5 Eq. 205. (14) 1 Swanst. 129. (15) I. R. 1 Eq. 362, 369. (16) 2 Sim. & Stn. 488. 154 LAW REPORTS (IRELAND). - [L. R. L. Appeal. the benefit of all. An appointment made in consideration of an • 1880. agreement to lend the fund to the appointor on good security was DITGGAN held bad : Arnold v. Hardwick (1) ; and in Humphrey v. Giver (2), DUGGAN. it was decided on appeal that where it was proved that_ at one time an appointor intended a benefit to herself, the onus of proof that at the time of the appointment she had abandoned that intention lay upon those supporting the appointment. With regard to the cases relied on by the Appellants : in Be Huish's Charity (3) the interests both of the tenant for life and. of the persons in remainder were consulted, and there was no advantage given to either at the expense of the other. In Cockcroft v. SutÂÂcliffe (4) it was for the benefit of two young men, objects of the power, that the appointment should be made to start them in business ; the machinery of the mill was a considerable part of the property, and was not the subject of the power. The father no doubt secured a benefit, but not, as here, at the expense of the objects of the power. 111'Queen v. Farquhar (5) was the case of a purchaser from a purchaser after the lapse of thirty or forty years : and in Green v. Pulsford (6) it was held that the facts proved did not amount to more than cause for suspicion. Mr. Cathrew, for the Respondent Honoria Duggan. Dir. Geoghegan, in reply. Dec. 21. LORD O'HAGAN, C. :- The question in this case is, whether an appointment to the Plaintiffs by their mother, Honoria Duggan, of a fund brought into Court under the Trustee Relief Act, and a deed, of the same date, by which she assigned to them her life interest in that fund, are valid or void ? The claim of the Plaintiffs, is full and candid, and states all the facts which are necessary to be considered for the fair decision of the point in controversy. Mary Donohoe, the sister of the Defendant Honoria Duggan, made a will, by which she gave a farm called Borahard and a (1) 7 Sim. 343. (2) 28 L. J. Ch. (N. S.) 406. (3) L. R. 10 Eq. 5. (4) 25 L. J. Ch. (N. S.) 313. (5) 11 Yes. 467. (6) 2 Beau. 70. VoL. VII.] CHANCERY DIVISION. legacy of 2000 to the latter, for her separate use, without power of anticipation, and to her children according to her appointment, and. in default of appointment to her sons at the age of twenty-one, and to her daughters at that age, or marriage. Honoria Duggan and her husband had four children, the Plaintiffs, and two of the Defendants who are still minors. Mrs. Duggan and her husband took possession of Borahard, after the death of her sister, and he afterwards died. She possessed, also, another farm called Ladytown. After the sister's death, Mr. and Mrs. Duggan borrowed 1000 from the Hibernian Bank, which was secured by a policy of insurance and a mortgage of her inteÂÂrest in the fund in Court. The Plaintiff Mary, whilst still under age, joined her father and mother in further securing the advance by a iiromissory note to which she was a party. The husband having died, the Bank required further security; and the Plaintiff Christopher, who was of age, and his sister Mary, who was then also of age, became parties with their mother to her promissory notes, instead of that which had been executed in her husband's lifetime. The Defendant Honoria Duggan got into great embarrassment, sold off her stock, and allowed a large sum for rent of her farms to grow due. The claim sets forth what was done thereupon and in that state of facts by the mother and her adult children, in the 12th and 13th paragraphs " 12. Under the foregoing circumstances, and in order to provide for her children and support her family, the said Defendant Honoria D4lggan, by deed poll dated the 13th day of January, 1880, under and by virtue of the power given to her by the said will of Mary Donohoe, appointed irrevocably the said sum of 4234 Os. 3d. Government Stock to the Plaintiffs, their executors, adÂÂministrators and assigns, in equal shares, subject however to the life estate and interest of the said Honoria Duggan. " 13. By an indenture of even date with the said deed poll, and made between the said Honoria Duggan of the one part, and the Plaintiffs of the other part, after reciting, as the facts were, that the Plaintiffs were desirous of Obtaining possession of the said sum of 4234 Os. 3d. Government Stock, and for that purpose had proposed to the said Defendant Honoria Duggan to sell to the Plaintiffs her life interest in the said Stock, in consideration of a sum of 156 LAW REPORTS (IRELAND). [L. R. I...