Graham v M'Cashin

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judgment Date: 05 May 1901
• Date: 05 May 1901

GRAHAM

and

M'CASHIN

Appeal.

Executors — Liabilities — Action in Probate Court to establish will — Compromise — Agreement to pay sum out of the assets to buy off opposition — Abortive proceedings — Assets subsequently not sufficient to pay legatees in full.

Abdullah v. Rickards 4 Times R. 622.

Bagot's EstateIR [1900] 1 I. R. 496.

In re Bagot's EstateIR [1901] 1 I. R. 496.

Kelly v. KellyUNK 21 L. R. Ir. 243.

404 THE IRISH REPORTS. [1901. M. It. It is not shown that there is any special inducement offered to 1901. them to become Jesuits, and there is certainly no such obligation ROCHE upon them. It is not the direct object of this gift to train up wDERmorr. pupils to be Jesuits. The gift is not so tainted with illegality so as to render it possible for me to decide that it is invalid. Solicitor for the executor : Roche. Solicitors for the defendant Rev. William Henry : J. H. Walsh Co. Solicitor for the defendant Bourke : Dundon. Solicitor for the defendant Mrs. M'Cann : Kilbride. Solicitor for the Attorney-General : Warren. R. W. L. Appeal. GRAHAM v. M'CASHIN (1). 1901. May 4, 5. Executors—Liabilities—Action in Probate Court to establish will—ComproÂmise—Agreement to pay sum out of the assets to buy of opposition—Abortive proceedings—Assets subsequently not sufficient to pay legatees in full. A testator died in 1894, leaving assets, which were supposed to be worth over £15,000. He made his will the night before he died, appointing the defendants executors and trustees, and left legacies of £4000 to eaoh of two nieces, both of whom were minors, and a large number of other legacies, amounting in pecuniary value to £13,800. A brother of the testator, who was supposed to be the heir-at-law, but to whom nothing had been left, entered a caveat against probate being granted. The executors brought an action in the Probate Court to establish the will, which was tried in January, 1895, when the executors compromised the suit by paying the caveator £2000, and £300 for his costs. In 1896 an elder brother of the testator, who had emigrated to Australia over twenty years before, and had not been heard of for many years, reÂturned to Ireland, and brought an action to have probate recalled, and the will set aside. The action was tried in April, 1897, when the jury disagreed. The action was tried a second time in 1898, when a verdict was found in favour of the will, omitting certain clauses. In an action to administer the estate of the testator the assets were found insufficient to pay the legacies :— (1) Before FITZ GIBBON, WALKER, and HOLMES, L.JJ. Held (affirming the decision of the Vice-Chancellor), that the executors Appeal, were not entitled to credit for the sums of money spent in compromising the 1901. first probate suit; but Held (varying the order of the Vice-Chancellor), that GRAHAM the executors were entitled to their costs in the first probate suit. INPCASHIN. APPEAL from so much of an order of the Vice-Chancellor dated the 21st February, 1901, as disallowed to the defendants the costs of the first probate suit, and the sum of £2000 paid by them to James Smith for the purpose of compromising the first probate action and £300 for his costs. The action was brought to administer the assets of John Smith who died on the 20th September, 1894. The testator who resided at Belfast, left personal estate which was supposed to be value for over £15,000, and the real estate and chattels real realized £3150. The testator was a bachelor who had been professedly a PresbyÂterian during his life, until a few months before his death, when he became a Roman Catholic. By his will dated the 19th SepÂtember, 1894, the evening before he died, the testator appointed the Rev. Mark M'Cashin and William M'Cormick, his executors and trustees, and devised and bequeathed to them all his real and personal property upon trust to invest £4000 for each of his nieces Jennie Smith and Annie Smith, both of whom were minors ; in the event of the death of his nieces before attaining twenty-one he directed his trustees to pay the said two sums of £4000 to the Superioress of the Convent of the Sacred Heart, Lisburn ; he left £2000 to the young men in his employment ; £1000 to the Rev. Daniel M'Cashin to be applied for Masses for the repose of his soul, to be celebrated within five years after his death ; £1000 to his houseÂkeeper, Agnes Kane ; £500 to his sister, Mrs. Duffin ; £300 to his cousin Margaret Gibson ; £100 to the Superioress of the Sisters of Mercy, Belfast ; £100 to the Rev. Anthony Carroll ; £300 to the Rev. Mark M'Cashin, and £100 to William M'Cormick the executors. All the foregoing legacies were to be free of legacy duty, and he directed his executors and trustees to distribute the residue among the various branches or conferences of the Society of St. Vincent de Paul in Belfast, Ballymacarratt, Ardoyne, and Ligoniel. In case any of the foregoing legacies being, for any reason, void or illegal, then the same were to become the sole and 40-6 THE IRISH REPORTS. [1901. Appeal. absolute property of his executors, and he appointed his trustees 1901. and executors residuary legatees. GRAMAN The testator's brother, Dr. James Smith did not take anything . M SEUN. by this will, but by a former will made in 1893, a legacy of £2000 had been left to him, and also a rentcharge of £150 a-year out of a house in Cromac-street, Belfast. The will of 1893 gave legacies of £250 each to Miss Jennie Smith and Miss Annie Smith. Dr. James Smith entered a caveat against probate of the will being granted, and the executors commenced a suit on the 1st November, 1894, to have the will established. James Smith filed a defence alleging undue influence and want of testamentary capacity. The ease came on for trial on the 29th January, 1895, when the executors under the advice of counsel compromised the litigation with Dr. James Smith on the terms that Dr. Smith should receive £2000 out of the assets and £300 for his costs. Counsel for the minors advised the adoption of this course. The full terms of the consent which was made a rule of Court on the 29th January, 1895, were that the defendant withdrew all pleas and consented to the will alleged being admitted to proof on the terms following : 1. The executors should pay to the defendant all debts due to him by the deceased. 2. The executors should within three months from the date of the consent pay to the defendant or adequately secure the sum of £2000, together with the sum of £300 in full for his costs. 3. The plaintiffs in their personal and not in their representaÂtive capacity contract with the defendant to pay the said sum of £2000 and £300 within three months...