Garner v Holmes

• Jurisdiction: Ireland
• Judgment Date: 04 March 1858
• Date: 04 March 1858
• Court: High Court of Chancery (Ireland)

Chancery.

GARNER

and

HOLMES.

Dummer v. Pitcher 2 M. & K. 262.

Bellasis v. UthwaiteENR 1 Atk. 428.

Hancock v. Hancock 5 Vin. Ab. 295, pl. 43.

Allen v. Allen 2 Ves. 37.

Thynne v. Glengall 2 H. Lds. Cas. 131.

Pye v. Dubost 18 Ves. 140.

Hanbury v. HanburyENR 2 Bro., C. C., 529.

Maxwell v. Maxwell Wall., by Lyne, 163.

Davis v. Boucher 3 Y. & C. 397.

Burgess v. Mawbey 10 Ves. 319.

Grave v. SalisburyENR 2 Bro., C. C., 425.

Kirk v. Eddowes 3 Har. 509.

Noys v. MordauntENR 2 Vern. 581.

Lee v. Pain 4 Har. 201.

Bengough v. Walker 15 Ves. 509.

Chaplin v. ChaplinENR 3 P. Wms. 245.

Holmes v. HolmesUNK 1 B. C. C. 555.

Palmer v. NewellENR 1 Jur., N. S., 929; S. C., 20 Beav. 32.

Forrester v. CottonENR 1 Eden, 532.

Stratton v. Best 1 Ves. jun. 285.

Judd v. Pratt 13 Ves. 168.

Oxenden v. ChichesterENR 4 Dow. 65.

Blandy v. WidmoreENR 1 P. Wms. 324.

Gartshore v. Chalie 10 Ves. 1.

Goldsmid v. Goldsmid 1 Swanst. 211.

Goodfellow v. BurtchettENR 2 Vern. 298.

Druce v. Dennison 6 Ves. 385.

Forsight v. Grant 1 Ves. jun. 298.

Durham v. WhartonENR 3 Cl. & Fin. 146.

Thynne v. Lord Glengall 2 H. L. Cas. 131.

Suisse v. Lowther 2 Har. 424.

ArdesoifeENR 2 Dick. 463.

Wood v. BryantENR 2 Atk. 521.

Hancock v. Hancock Vin. Ab. 295., pl. 48.

Monck v. Monck 1 Ba. & Bea. 298.

Trimmer v. Bayne 7 Ves. 508.

Hayes v. GarveyENR 3 Jo. & Lat. 268.

Weal v. Rice 2 R. & M. 251.

412 CHANCERY REPORTS. 1857. Chancery. GARNER v. HOLMES..; Nov. 25, 26. 1858. March 4. (Chancery.) J., in 1810, by THE facts of this case sufficiently appear from the LORD CHANCEL his marriage settlement, co- Loit'S judgment. venanted with the trustees of that settlement the all Mr. Brewster, Mr. John Brooke and Mr. Pilkington, for the that property of which he petitioner. should die seis This sum of £1300 must be considered as a debt, and subject to ed or possess ed should be the principles which apply to the satisfaction of debts by subsequent charged with £1300 for the gifts and legacies, instead of the stronger presumption in respect of issue of the marriage. double portions. This cannot be treated as a case of election ; for There was but one child, E., it is well settled that mere general words will not raise an election ; issue of that marriage. On and there is nothing to show any intention on the part of the testator the marriage of E., in 1847, to give his estate discharged of the, £1300: Dummer v. Pitcher (a). J.conveyed certain free- If even the £1300 were to be considered a portion, the general hold property to trustees, for rule of the presumption against double portions would not apply ; the benefit of for the reason of that rule is the injury to the other children which E. and the children of her might arise from giving a doubh portion to one ; and Bellasis v. marriage, and covenanted to Uthwaite (b) shows that the presumption against double portions is make up the amount of the not to be made against an only child. produce of that property to The gift of a life interest is kid not to be a satisfaction for an £300 per an num. J., by absolute portion : Hancock v. Hancock (c) ; Allen v. Allen (d); will, dated in 1852, devised real estate to the separate use of E. for life, with remainder for her chilÂdren, and declared that devise to be in satisfaction of the Covenant in the deed of 1847. In 1852, J. assigned Railway shares upon trust for E. fir life, for her separate use, in case she should survive him, with remainder for her clildren. By codicil, made in January 1853, J. bequeathed certain chattels personal to E. for her separate use, and bequeathed to trustees £1050 Bank stock, upon trust, ior G., the husband of E., for life, remainder to E. for life, remainder for ter children, as therein menÂtioned. Both the will and codicil disposed of all the testator's estate.-.Held, by the LORD CHANCELLOR, that E. and her husbana were entitled to the sum of £1300 secured by the covenant in the deed of 1810, es well as to the benefits conÂferred by the settlement of 1847, the will and codicils and the deed of 1852." (a) 2 M. & K. 262. (b) 1 Atk. 428. (c) 5 Vin. Ab. 295, pl. 43. (d) 2 Ves. 37. 1,-;„ rha -CM,- 69 /J449 CHANCERY REPORTS. 413 Anon., 2 Eq. Abr., p. 538. The deed of 1847 cannot have the effect of satisfaction, for it is clear that a provision cannot be taken in satisfaction, unless it be of the same nature. The doctrine of satisfaction applies only to legacies, and not to a bequest of a residue, or to a devise of real estates. The presumption cannot be raised by parol evidence ; it must appear upon the will itself; and, if the apparent intention of the testator be considered, there is nothing in the will to show an intention to give the estate discharged of the £1300. 1857. Chancery. GARNER V. HOLMES. Argument. The Solicitor-General, lir. Francis Fitzgerald, Mr. Lawson and Mr. Ormsby, for the respondent. It lies upon the child chiming a double portion to prove the inÂtention that she shall ha%e it ; it is not necessary for the person alleging the second portion to be in satisfaction to prove any intenÂtion to satisfy the first by it ; the law presumes that intention. That doctrine is founded on good sense, and is held to the fullest extent in respect to portions ; and this sum of £1300 was clearly a portion ; if it were not, nothing ever could be deemed a portion...