Francis Blake Knox and William Knox, Executors of John Knox, Deceased, v Coll Kelly and Others

• Jurisdiction: Ireland
• Judgment Date: 06 May 1844
• Date: 01 May 1844
• Court: Rolls Court (Ireland)

Francis Blake Knox and William Knox, Executors of John Knox, deceased,

and

Coll Kelly and others

Rolls.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

Where lands were devised charged with the payment of a legacy, the trust, although an expressone, is within the fortieth section of the 3 & 4 W. 4, c. 27, and not within the twenty-fifth section of that Act.

The subject of the two sections is different; the twenty-fifth relating to lands and rent; the fortieth to money charged upon land.

Coll Kelly, being seized in quasi fee of the lands of Carroward and Liscarroward by virtue of a lease for lives renewable for ever, by his will, bearing date the 29th of April 1792, devised all his estate and interest in the said lands to his son Patrick Kelly, “by paying £600” in manner therein following—that is to say, he thereby ordered and bequeathed for his daughter Helen Kelly, £200 with lawful interest, and for his daughter Kate Kelly, £200 and interest at £5 per cent., and to his daughter Mappy Kelly he bequeathed £200 (being the residue of the said sum of £600) in the words following:— “I order to my daughter Mappy Kelly 200, on she behaving; otherwise she is at the mercy of her mother, sisters, and brother Walter; but she is to receive but £5 per cent.— that is to say, £10 per year: both she and her sister Catty is to get their fortunes by £100 to each, when they are to be paid—that is, in eighteen months after each is married,” with limitations over in case of their dying unmarried: and after other legacies to other members of his family, the testator appointed his son Patrick Kelly, sole executor and trustee of his said will, and directed that his debts and legacies should be paid by his said trustee and executor.

Coll Kelly the testator died in 1792, and his son Patrick thereupon entered into seizin and possession of the said lands, and so continued until his death in March 1825, when a receiver was appointed over the estates in the matter of Coll Kelly a minor, and afterwards by order of the 9th of July 1836, extended to the present cause.

Mappy Kelly, afterwards Mappy M'Donnell, the legatee in the will of the said Coll Kelly, died a widow on the 7th of January 1829, leaving one daughter Damphina M'Donnell, her surviving; Damphina intermarried with Malachy Kelly, and died on the 14th of July 1832, leaving Arabella Kelly the only issue of the marriage and next-of-kin of Mappy Kelly, her surviving; and Malachy Kelly her father obtained administration in the Court of Prerogative to Mappy Kelly during the minority of his daughter.

In the year 1840 the said lands were sold under the final decree in the cause. The purchaser, however, having objected that the legacy to Mappy Kelly being still unpaid, remained an encumbrance on the estate, although no payment had ever been made on foot of it, or acknowledgment given, an arrangement was made whereby the purchaser entered into possession of the lands under a consent order, by which the sum of £313, portion of the purchase money, was impounded in this cause to answer the sum which would be due on foot of the said legacy, if the representative of Mappy Kelly should be able to establish his right to it.

In pursuance of this arrangement, by an order of the 14th of May 1841, it was referred to the Master to inquire and report whether Malachy Kelly was entitled to the said sum of £313, or any or what part thereof, and if so, in what right and for whose benefit; and liberty was given to Malachy Kelly to file a charge on foot of the legacy, and to the plaintiff to file a discharge thereto.

The Master, by his report made the 2nd of February 1844, found that there was due to Malachy Kelly, as administrator of the said Mappy M'Donnell, otherwise Kelly, and for the interest and benefit of the said Arabella Kelly, the grand-daughter of the said Mappy M'Donnell, on foot of said legacy in the will of said Coll Kelly, for principal and interest, a sum of £636. 18s. 6d. present currency (being the principal sum and interest from the death of Coll Kelly in 1792); and the Master in the report stated that it was insisted before him that the said legacy was barred by length of time; and even if not so, that he could not allow interest thereon for more than six years before the date of the filing of the bill, as to which he doubted, and submitted the same as matter of difficulty to the Court: and he further found that the sum of £313, so impounded, was a fund to be allocated in part payment of the said legacy.

Mr. Keogh, on behalf of Malachy Kelly, now moved that the sum impounded by the order of the Court might be paid to him, the same having been so reported by the Master as due to Malachy Kelly on foot of the legacy. Although there has been no payment or acknowledgment in writing since the death of Coll Kelly, yet this bequest is not barred by the fortieth section of the recent Statute of Limitations. The lands were devised by Coll Kelly with a direction to pay the debts and legacies, and thereby an express trust is created charged upon the land which, by the twenty-fifth section, is exempted from the general operation of the statute: Salter v. Cavenagh (a). Dillon v. Cruise (b) is an authority that, where a trust is created by the will for the payment of debts, the fortieth section does not apply, being controlled by the twenty-fifth: Shaw v. Borrer (c); Kelly v. Kelly (d); Jones v. Scott (e). There can be no distinction between a debt and a legacy, both being mentioned in the fortieth section; and those cases must be held to rule the present.

As to the amount of interest, it must be admitted that we are not entitled to more than six years' interest under the forty-second section: Byrne v. Robinson (f); and that the Master's report must be varied as to the amount found due on foot of the interest.

Mr. M. Atkinson, with whom was Mr. M. Baker, for the plaintiffs.—The right to the legacy is long since barred: more than forty years have elapsed since the death of Coll Kelly, and no payment has been made or acknowledgment given. It is insisted on the other side that the words of the devise of the lands to Patrick Kelly raise a direct trust to pay the legacy, and so take it out of the fortieth section of the Statute of Limitations; we do not contend that there is not a direct trust apparent on the face of the will, but we say that it is nevertheless barred by the fortieth section. It is true that Kelly v. Kelly, and Dillon v. Cruise, are authorities that a direct trust for the payment of a debt on real estate is not within the fortieth...