Ellard v Cooper

• Jurisdiction: Ireland
• Judgment Date: 14 February 1851
• Court: Court of Chancery (Ireland)
• Date: 14 February 1851

Chancery.

ELLARD

and

COOPER.

Kearnan v. Fitzsimon 3 Ridg. P. C. 16.

Timmer v. Bayne 9 Ves. 210.

Clifon v. BurtENR 1 P. Wms. 680.

9 Ves. 210.

Howel v. PriceENR 1 P. Wms. 294.

Pollexfen v. MooreENR 3 Atk. 272.

Prowse v. AbingdonENR 1 Atk. 482, 486; S. C. West's Rep. temp. Hardwicke, 312.

Lawrence v. BlakeENR 8 Cl. & Fin. 504, 537.

Aldrich v. Cooper 8 Ves. 382.

Pearce v. Loman 3 Ves. 135.

Lanoy v. AtholENR 2 Atk. 446.

Hanby v. Roberts Ambl. 127.

Wilson v. FieldingENR 2 Vern. 763.

Sagitary v. HydeENR 1 Vern. 455.

Trimmer v. Bayne 9 Ves. 210.

Gibbs v. Ougier 12 Ves. 413.

Herne v. MeyrickENR 1 P. Wms. 201.

Culpepper v. Aston 2 Chan. Ca. 117.

Tipping v. TippingENR 1 P. Wms. 729, 730.

Westfaling v. WestfalingENR 3 Atk. 467.

Baldwin v. Belcher 1 Dr. & War. 173.

Conolly v. M'DermottENR 3 Jo. & Lat. 260.

Wright v. Simpson 6 Ves. 714.

Wright v. Morley 11 Ves. 22, 23.

Powell v. Robins 7 Ves. 209.

Vickers v. OliverENR 1 Y. & C., C. C. 211.

Busby v. SeymourENRUNK 1 Jo. & Lat. 527; S. C. 7 Ir, Eq, Rep. 433.

Putman v. BatesENR 3 Russ. 188.

Lane v. HardwickeENR 9 Beav. 148.

Harrison v. BoswellENR 10 Sim. 382.

Pollexfen v. MooreENR 3 Atk. 272.

Howel v. PriceENR 1 P. Wms. 294.

Clifton v. BurtENR 1 P. Wms. 680, and Mr. Cox's note.

Mayhew v. Crickett 2 Swanst. 191.

Kearnan v. Fitzsimon 3 Ridg. P. C. 1, 16.

Boyd v. BeltonUNKENR 8 Ir. Eq. Rep. 113; S. C. 1 Jo. & Lat. 730.

Rainsford v. Ryan 2 Ir Jur. 277.

Blake v. LawrenceENR 8 Cl. & Fin. 504, 537.

Cox v. BatemanENR 2 Ves. sen. 18.

Vicker v. Oliver 1 Y. & C., C. 211.

Busby v. SeymourENR 1 Jo. & Lat. 527.

Kearnan v. Fitzsimon3 Ridg. P. C. 1, 16.

Pollexfen v. MooreENR 3 Atk. 272.

Coppin v. CoppinENR Sel. Cha. Ca. 28; S. C. 2 P. Wms. 291.

1 Reg. Lib. B. 1745, fol. 283.

Lawrence v. BlakeENR 8 Cl. & Fin. 504, 536, 537.

Prowse v. AbingdonENR 1 Atk. 482, 486.

Marsh v. EvansENR 1 P. Wms. 668.

Aldrich v. Cooper 8 Ves. 388.

376 CHANCERY REPORTS. 1850. Chancery. Nov. 7. Dec. 6, 9. 1851. Feb. 14. ELLARD v. COOPER. Where specialÂty debts of a deceased perÂson have been paid out of his personal esÂtate, and at the time of such payment the personal estate was sufficient also to pay his simple contract debts, and the executor subÂsequently comÂmits a devasÂtavit, which renders the personal estate insufficient to pay simple contract crediÂtors, they are entitled to be paid out of the real estate of the debtor to the extent to which the perÂsonal estate has been onerÂated by the specialty creÂditors. The dictum of Lord Clare, in Kearnan v. Fitzsimon (3 Ridg. P. C. 16), that " the rule of marÂshalling assets holds only where it is proÂper to be done at the death of the party, whose assets are to be mar ELIZABETH ELLARD, the plaintiff in the present cause, in the month of December 1833 filed a bill in this Court against William Cooper, John Turner Cooper, and Samuel Cooper the younger (who were also defendants in the present cause), as executors of Austen Cooper. That bill stated that Letitia Burke, by her will of the 11th of April 1808, bequeathed a sum of £400 to the father of the plaintiff, and £100 to her, and charged both those legacies upon her (the testatrix's) real and personal estate, and appointed Samuel Cooper the elder and Austen Cooper her executors and trustees. It also stated that in the year 1828 the father of the plaintiff died, and she, as his only child, became entitled to the legacy of £400, and obtained letters of administration to him. Austen Cooper alone proved the will of Letitia Burke, and possessed himself of all her real and personal estate. He having died in the year 1830, the defendants William, John and Samuel Cooper the younger proved his will. Administration de bonis non to Letitia Burke was granted to the plaintiff. That bill concluded by praying an account of the personal estate of Austen Cooper, and an account of the real estates of Letitia Burke, and that, should it appear that there had been any misappliÂcation of the personal estate of Letitia Burke by Austen Cooper, his representatives should be decreed to make good out of his assets the sum so misapplied. On the 26th of April 1838, the ordinary decree to account was made upon that bill, and that decree also contained a declaration that the plaintiff was entitled to the legacies of £400 and £100. By his report, bearing date the 29th of June 1842, the Master found that out of a sum of £5641. 15s. 11d., received by shalled, and can never arise upon any subsequent fact or accident," considered. Simple contract creditors, who have, in consequence of the payment of specialty creditors out of the personal estate of the deceased debtor, acquired a right of marÂshalling his real estate, are not barred under the Statute of Limitations by the lapse of less than twenty years. Vickers v. Oliver (1 Y. R. C., C. C. 211) approved of CHANCERY REPORTS. 377 Austen Cooper out of the real and personal estate of Letitia Burke, he had duly administered £2955. 5s. 3d., and that there was then due to the plaintiff £1218. 14s. 6d. for principal and interest on the legacies of £400 and £100. The report also found that at the time of his death Austen Cooper was seised in fee of real estate in the counties of Dublin and Donegal, and that out of his personal estate and the proceeds arising from the sale of the real estate in Donegal a sum of £22,027. 17s. 6d. had been received by his executors, whereof they had duly administered a sum of £15,249. 12s. 60. By the final decree in that cause, made on the 29th of November 1842, John Turner Cooper and Samuel Cooper were directed to bring into Court £3029. 15s. 8d., the sum ascertained to be due by Austen Cooper in respect of the real and personal estate of Letitia Burke ; and it was declared that in default thereof the plaintiffs might enforce payment of their demand out of his real and personal estate. This sum of money was not brought into Court by John Turner Cooper and Samuel Cooper. In the Court of Exchequer a bill was filed by William Cooper, one of the defendants in the suit, against John Turner Cooper and Samuel Cooper the younger, on foot of an equitable mortgage for £10,000, made to him (William Cooper) on the 19th of November 1819. By his report of the 14th of January 1843, made in that cause, the Remembrancer found that the sum of £10,143. 8s. sid. was due on foot of the mortgage to William Cooper; that John Turner Cooper had in his hands a sum of £7528. 7s. 5d. unapplied or misapplied ; that Samuel Cooper the younger, as devisee of Austen Cooper, had received a sum of £770, the produce of the sale of a house, and had received as his executor the sum of £210, amounting in the whole to £980. 18s. By a final decree pronounced in that cause on the 6th of February 1843, it was ordered that the defendant John Turner Cooper should lodge in Court the sum of £7528. 7s. 20., and that Samuel Cooper should lodge the sum of £210. 18s., and that both of those sums should be applied towards the payment of certain sums found due for principal, interest and costs on two judgments obtained against Austen Cooper, and of the sum found due to William Cooper, the 378 CHANCERY REPORTS. plaintiff in that suit, in respect of his equitable mortgage ; and in default thereof, that the real estate of Austen Cooper should be sold, and the proceeds of the sale applied in payment of the two judgÂments and the equitable mortgage. By an order of the 24th of June 1844, Elizabeth Ellard (plaintiff in the Chancery cause of Ellard v. Cooper, and in the present suit) was permitted to prove her demand in the Exchequer cause of Cooper v. Cooper; and by an order made on the 9th of February 1844, notice of all proceedings in that cause was directed to be given to her. The bill filed in the present cause in the Court of Exchequer stated that John Turner Cooper and Samuel Cooper not having lodged the monies in Court, as directed by the decree of the 6th of February 1843 in Cooper v. Cooper, the real estates of Austen Cooper were set up for sale, and that a large portion of his personal estate and of the proceeds of part of his real estate, sold in pursuÂance of directions contained in his will, had been applied in payment of interest due on the equitable mortgage of William Cooper, and that sums due upon several judgments had been paid out of his personal estate. The bill also charged that the plaintiff was entitled to have the amount of her demands, which had been proved against Austen Cooper in respect of the assets of Letitia Burke, paid out of his real estate to the extent to which his personal estate had been applied in discharge of interest, on the equitable mortgage of William Cooper, and in payment of the judgments ; and it also charged that John Turner Cooper and Samuel Cooper had misapplied the assets of Austen Cooper to a considerable amount, and prayed that the plaintiff should be declared entitled to the benefit of all the proceedÂings and accounts in Cooper v. Cooper, and that an account should be taken of the sum due to the plaintiff in respect of the legacies of £400 and £100, and also an account of the debts of Austen Cooper ; and that, if it should appear that all his personal estate had been exhausted, in that case the plaintiff and his other simple contract creditors should be declared entitled to stand pro Canto in the place of William Cooper (the equitable mortgagee), and of the judgment CHANCERY REPORTS. 379 and specialty creditors of Austen Cooper, whose demands had been satisfied out of the personal estate. The will of Austen Cooper, after referring to the equitable mortÂgage, contained the following passage :-" Now, I do hereby charge all my said estate of Kinsealy with payment of all and every sum of money which, at the time of my decease, I owe to my said brother (the equitable mortgagee) ; and to avoid any question, between my said sons John Turner Cooper and Samuel Cooper, of...