Gallagher v Ferris

• Jurisdiction: Ireland
• Judgment Date: 17 May 1881
• Date: 17 May 1881
• Court: Chancery Division (Ireland)

V. C.

GALLAGHER

and

FERRIS.

Hankey v. HammockENR 3 Madd. 148 (b).

Ex parte Richardson, In re Hodson Ibid. 138.

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

Hooper v. KeayELR 1 Q. B. D. 178.

Sterndale v. HankinsonENR 1 Sim. 400.

Devaynes v. NobleENR 1 Mer. 572.

Cutbush v. CutbushENR 1 Beav. 184, 188.

Cutbush v. CutbushENR 1 Beav. 184.

Will Direction to trustees to permit testator's wife to carry on his trade Divesting clause on second marriage Debt due at testator's death Trading carried on with widow Appropriation of payments Liability of assets for goods supplied to carry on trade.

VoL. VII.] CHANCERY DIVISION. 489 adopt the general creditors lose nothing of which they might not Appeal. otherwise have been deprived, as the landlord, but for the execution, 1881. could have distrained for any rent which he can recover under the La re statute of Anne, and they may gain by precipitating an act of MeiBUM bankruptcy through the completion of the execution. The appeal must be allowed, the order appealed from disÂÂcharged, and the assignees' motion refused ; the money must be refunded to the sheriff, with his costs in the Court below, and his costs of the appeal. Decision below reversed. Solicitor for the Appellant : Mr. Wm. M. Moore. Solicitor for the Respondents Mr. Bouchier Eaton. GALLAGHER v. FERRIS. Will-Direction to trustees to permit testator's wife to carry on his trade Divesting clause on second marriage-Debt due at testator's death-Trading carried on with widow-Appropriation of payments-Liability of assets for goods supplied to carry on trade. P. S., by his will, bequeathed to his two sisters, whom he appointed as the executrices of his will, his house, together with all the stock-in-trade, houseÂÂhold furniture, and all his other property, upon trust to permit his wife' D. M. S., so long as she should remain a widow, to reside with his children in said house, and to carry on the business of a grocer and spirit-dealer therein for the benefit, support and maintenance of herself and of her children during her life ; but the testator directed, if his widow should marry again, she was to cease to reside in the said house, or to have any interest in or control over the said house, stock-in-trade, or furniture, and that same should be held by his trustees for the exclusive benefit of his children. And in case his widow should marry again, the testator empowered his trustees either to continue the business, as theretofore carried on in said house, or to sell it ; and he empowered them, in case his wife should marry again, to raise the sum of 400, by mortÂÂgage of the house or otherwise, and hand the same to his wife. The testator died in 1877, and his will was proved by one of his executrices, the Plaintiff in the action. During his life the testator had carried on the trade of a grocer and spirit-dealer in the house mentioned in his will. From the date of his death, his widow continued to reside there with her children, and to carry on the business up to the time of her death, which occurred in August, 1879. Vor,. VII. 2 Q LAW REPORTS (IRELAND). [L. R. I. She had married again in February, 1879. The business had been carried on with the consent of the acting executrix till her second marriage, when such consent was withdrawn. At the date of the testator's death he was indebted to the firm of D. & Son in the sum of 153, and the firm continued supplying his widow with goods for the purpose of the trade up to March, 1879, when she owed the firm 168. She had, during the course of her trading, paid the firm more than sufficient to pay the sum due to them at the testator's death. The account of the testator in the books of the firm was continued without a break, except that the heading of such account was changed at first to " Representatives of late Mr. P. S.," and after a while to " Mrs. S.," and the balance due at the testator's death was carried on to the debit of the next account, and the payments credited against it ; and the account was so kept till the dealing ceased. Monthly accounts, kept in a similar way, were from time, to time furnished by D. & Son to Mrs. S. D. & Son, having brought in a claim against the testator's assets for the balance due at the date of the testator's death: Held, that the payments made by the widow to the firm had been concluÂÂsively appropriated to the discharge of the debt due at the testator's death, and the claim was, therefore, disallowed. D. & Son afterwards brought in a claim for 168, for goods supplied to D. M. S., for the purpose of the trading carried on by her in the testator's house, pursuant to the directions in the will. Another creditor, R. B., brought in a similar claim for the price of goods supplied to D. M. S., from the date of the testator's death to that of her own. The executrix had, shortly before D. M. S.'s second marriage, warned R. B. not to supply her with any more goods, and informed him that if D. M. S. married a second time she was to cease to have any control over the business :- Held, that the trust to permit the testator's wife to carry on the business was equivalent to a direction to the trustees to carry it on themselves with the property which was employed by the testator himself in the trade, and that the assets to the extent of such property were liable to pay for goods supplied to the testator's widow for the trade so carried on by her with the executrix's consent :-Held, however, that as the claimants' right to be repaid out, of the assets depended on the direction in the testator's will to carry on the trade, they were bound to take notice of the divesting clause on the second marriage of his widow ; and, that so far as the claims were for goods supplied after such second marriage, they should be disallowed. CLAIM by Messrs. John D'Arey & Son, brewers, as creditors for the sum of 153 3s. 8d., balance claimed as due to them for porter supplied to the testator, Patrick Sullivan, up to the time of his death, on the 20th of March, 1877. They also claimed to be creditors for the sum of 15 4s. 8d., the balance due for porter VoL. VII.] CHANCERY DIVISION. 491 supplied to Mrs. Dora Mary Sullivan, from March, 1877. The V. C. present action had been instituted for the administration of the 1881. estate of the said Patrick Sullivan, by Patrick Gallagher and Anne GALLAGHER Teresa Gallagher, his wife, executrix of the testator ; and the usual FERRIS. accounts having been directed and taken, the above claim was sent in by the Chief Clerk for the adjudication of the...