Gillooly v Plunkett

• Jurisdiction: Ireland
• Judgment Date: 31 July 1882
• Date: 31 July 1882
• Court: Chancery Division (Ireland)

V. C.

GILLOOLY

and

PLUNKETT.

In Dean v. RussellENR 3 Phil. 334.

Fairtlough v. Fairtlough Milward's Rep. 36.

In Newton v. Newton 13 Ir. Ch. R. 245; 7 Ir. Jur. (N. S.) 129.

Major v. MajorENR 2 Drew. 281.

Re Mayhew; Rowles v. Mayhew 5 Ch. Div. 596.

Smith v. Hopkinson 4 Prob. Div. 84.

Critchell v. CritchellENR 3 Sw. & Tr. 41.

Dean v. RussellENR 3 Phil. 334.

Newton v. Newton 13 Ir. Ch. R. 245; 7 Ir. Jur. (N. S.) 139.

In re Mayhew; Rowles v. Mayhew 5 Ch. Div. 596.

Fuller v. CooperENR 2 Ves. Sen. 242.

Green v. Tribe 9 Ch. Div. 231.

Bonner v. Bonner 13 Ves. 379.

In Dean v. RussellENR 3 Phil. 334.

Pinney v. Hunt 6 Ch. Div. 98.

In Re Mayhew 5 Ch. Div. 596.

In Barrs v. JacksonENR 1 Ph. 582.

Administration of personal assets — Costs of contentious proceedings — Jurisdiction of Probate and Chancery Division — Priority — Will — Codicil — Charge by will on real estate of legacies "hereinafter bequeathed" — Legacies given by subsequent codicil.

LAW REPORTS (IRELAND). [L. R. I. applied the principle to a bequest of the whole of the testator's funded property standing in his name in the Bank of Ireland, where he had both Three-and-a-half per cent. Stock, which fully answered the entire description, and also Government Debentures, which were not held to answer the description Solicitors for Plaintiff : Messrs. Kelly 8f Lloyd. Solicitors for Emily Matilda Corballis : Messrs. S. S. 8f E. Reeves 85 Son. Solicitor for the Minor Defendants : Messrs. J. 8f P. Poe. GILLOOLY PLUNKETT. Administration of personal assets-Costs of contentious proceedings-JurisdicÂtion of Probate and Chancery Divisions-Priority-Will-Codicil--Charge by will on real estate of legacies " hereinafter bequeathed"-Legacies given by subsequent codicil. Though the Probate Division has jurisdiction to award the payment of the costs of litigation in that Division out of the personal estate of the deceased, the Chancery Division has jurisdiction in the administration of assets to regulate the order and priority in which such costs are to be paid. When a contest for priority arose between pecuniary legatees and parties who had been awarded by a judgment of the Probate Division costs of contenÂtious proceedings to be paid out of the assets, upon the personal estate proving insufficieift for the discharge of both costs and legacies :- Held, that the costs awarded by the Probate Division should be paid in priority to the legacies. Semble, the claims of creditors would not be postponed to costs of contenÂtious litigation between legatees or next-of-kin. Where a testator by his will directed the rents of his real estate till sale, and after sale the interest of the proceeds, to be applied in payment of such or so much of the legacies " hereinafter bequeathed " as his personal estate will be insufficient to pay, and by his will bequeathed a number of pecuniary legaÂcies, and by a codicil of subsequent date gave some other legacies :- Held, that the word " hereinafter" confined the charge to the legacies given by the will. VOL. IX.] CHANCERY DIVISION. HEARING ON FURTHER CONSIDERATION. The action was for the administration of the real and personal estate of Patrick Moran, deceased. Patrick Moran made his will, dated the 9th May, 1873, and ,thereby devised his interest in certain freehold houses and lands to the Plaintiffs, the Right Rev. Laurence Gillooly, the Very Rev. Joseph M'Tucker, and the Very Rev. Patrick M'Tucker, subject to a jointure of £100 a-year for his wife, the Defendant Honoria Moran, upon trust, to receive the rents and profits, or to sell the premises, and invest the proceeds as thereinÂafter directed ; and he declared that his trustees should hold such rents and profits until such sale, and the annual income of the said investments after sale, upon trust, to apply same, with the rents of a certain house in Galway (which was not to be sold), in payment of such, or so much of the legacies " hereinafter beÂqueathed," and not otherwise expressly charged on said premises, as his personal estate should be insufficient to pay and discharge, in addition to his debts and funeral and testamentary expenses, and subject thereto upon certain trusts not material to this report ; and the testator, by his will, then gave a number of pecuniary legacies, and he appointed the Defendant Hyacinth C. Plunkett and the Plaintiff Patrick Moran executors of his will, and the said Hyacinth C. Plunkett his residuary legatee. The testator made a codicil to his will, dated the 22nd February, 1876, and thereby revoked the appointment of Hyacinth C. Plunkett as exÂecutor, and appointed the Plaintiff Patrick Moran sole executor thereof ; and he gave by that codicil a number of pecuniary legaÂcies, and revoked the residuary clause in his will, and devised and bequeathed all the residue of his property to his wife, and in other respects confirmed his will. The testator died on the 9th January, 1878. After his death the Plaintiff Patrick Moran instituted proÂceedings in the Probate and Matrimonial Division to obtain probate of the will and codicil, and the Defendant Hyacinth C Plunkett contested the validity of the codicil, and the Defendant Honoria Moran and her sister Mary Jane O'Malley opposed the will, and propounded a document purporting to be of a testaÂmentary character, which was executed by the testator shortly before his death, and under which they claimed to be entitled to VOL. IX. 2 D LAW REPORTS (IRELAND). [L. R. I. the entire estate of the testator, and failing that they propounded the codicil of the 22nd February, 1876. The course of the litiÂgation that ensued is fully stated in the judgment of the -VICE-CH A NC ELLOR. By a judgment of the President of the Probate and Matrimonial Division, dated the 14th June, 1879, it was ordered that the said Hyacinth C.Plunkett should be paid his costs incurred down to the 20th June, 1878 (except so much of them as had been already paid him by Honoria Moran and Mary Jane O'Malley), out of the assets of the testator ; and that Honoria Moran and Mary Jane O'Malley should be paid their costs down to the 20th June, 1878, out of the assets of the testator; and that Patrick Moran (the Plaintiff in the present action) should be paid his costs as execuÂtor out of the assets of the testator. On the 9th July, 1879 probate of the will and codicil was granted to the Plaintiff Patrick Moran. The present action having been commenced on the 11th August, 1879, an order for administration was made on the 11th December, 1880. After providing for the costs of the present action, the perÂsonal estate was not sufficient to pay the costs awarded in the Probate Division and the legacies. The questions now argued were-first, whether the costs so awarded in the Probate Division were payable out of the assets of the testator, and if so, in what priority ; and, secondly, whether the legacies given by the codicil were to be included in the charge in the will upon the rents of the testator's real estate of the legaÂcies thereinafter bequeathed. Mr. Lawless, Q. C. (with him Mr. Rife), for the Defendant Hyacinth C. Plunkett : Under the Probate Act (20 & 21 Viet. c. 79) the jurisdiction of the old Prerogative Court was vested in the Court of Probate : see sections 28 to 36. In Dean v. Russell (1), referred to in Dodd & Brooks' Probate Practice, p. 813, and 1 Williams on Executors (8th ed.), 380, it was decided that...