Hanley v M'Dermott

• Jurisdiction: Ireland
• Judgment Date: 02 December 1874
• Date: 02 December 1874
• Court: Chancery Division (Ireland)

V. C. Court.

HANLEY

and

M'DERMOTT.

Hawkins v. LawseENR 1 Leon. 154.

The Creditors of Sir Charles Cox 3 P. Will. 341.

Hartwell v. ChittersENR Amb. 308.

Cook v. GregsonENR 3 Drew, 547; S. C. 2 Jur. N. S. 510.

Tipping v. PowerENR 1 Hare, 405.

Boyd v. BrooksENR 34 Beav. 7; S. C. 34 L. J. Ch. 605.

Bain v. SadlerELR L. R. 12 Eq. 570.

Hall v. MacdonaldENR 14 Sim. 1.

Davis v. Uphill 1 Swan. 129.

Drakefield v. WilksENR 3 Atk. 539.

Barrow v. Greenough 3 Ves. Junr. 151.

Chamberlain v. AgarENR 2 V. & B. 259.

Russell v. JacksonENR 10 Hare, 204.

Tee v. FerrisENR 2 K. & J. 357.

Topham v. The Duke of PortlandENRENR 31 Beav. 525. On appeal, 1 D. G. J. & S. 517; 11 H. L. C. 32.

Player v. FoxhallENR 1 Russ. 538.

Ferguson v. Gibson 41 L. J. Ch. 640.

Lowe v. PeskettENR 16 C. B. 500.

Burrell v. SmithELR L. R. 9 Eq. 443.

Clay v. WillisENR 1 B. & C. 372.

Lee v. FernieENR 1 Beav. 483.

Hobbs v. Parsons 2 Sm. & Gif. 212.

Agassiz v. SquireENR 18 Beav. 431.

Tardrew v. Howell 2 Gif. 530.

Davis v. UphillENR 1 Swans. 129.

Sir Charles Cox's Creditors 3 P. Wills. 341.

Equity of redemption in a term — Legal assets — Produce of sale in Landed of sale in Landed Estates Court — Transfer of, to Court of Chancery — Executor's right of retainer — Marshalling.

VOL. /x.1 EQUITY SERIES. probable that he forgot the circumstance that the trunks or boxes, as they were delivered to him, had. ever been opened: his main intent, as I think it is expressed in his will, is to give the trunks or boxes as unopened or unaltered. I need scarcely say that I have come to that conclusion utterly independent of any supposed intenÂÂtion in the testator's mind. I have arrived at it on the construcÂÂtion of the language used by the testator, which can only declare what the intention of the testator was. No rule can be better settled than that a testator's intention is to be gathered from his will itself, and that rule will always receive from me the most decided and unequivocal support. I shall direct the costs of all parties to be paid out of this residuary fund which the trustees hold, viz., the £200, as well as the interim interest on Miss Margaret Franks' charge. 35 1875. Nofunrys V. FRANKS. HANLEY v. M'DERMOTT. V. C. Court. 1874. Equity of redemption in a term-Legal assets-Produce of sale in Landed Estates Court-Transfer of, to Court of Chancery-Executor's right of retainer- . Nov. Dec. 13, 17 2. Marshalling. Notwithstanding the 32 & 33 Viet. e. 46, the produce of the sale of an equity of redemption in a chattel real constitutes legal assets, whether the testator has or has not charged all his property with the payment of his debts. An equity of redemption in a chattel real was, with freeholds, sold in the Landed Estates Court, and the proceeds of the sale were, without coming to the hands of the executor, transferred to the credit of an administration suit pending in the Court of Chancery:-Held, that the executor did not thereby lose his right of retainer, but that the assets, including the proceeds of the sale of the chattel real, should be marshalled, so that the creditors to whom he was preferÂÂred should obtain, from the equitable assets, an equality in satisfaction proporÂÂtionable to what he had been paid out of the legal assets. FURTHER CONSIDERATION, on the Chief Clerk's certificate, in an administration suit instituted by an executor. The material facts are stated sufficiently in the judgment. O'Hagan, Q. C., and Mr. Macclermott, for the Plaintiff : The Plaintiff, as executor of Malachi Hanley, has a right of retainer out of the personalty. The proceeds of the sale of an equity of redemption in a term of years constitutes legal assets : D2 36 THE IRISH REPORTS. [I. IL V. Court. Hawkins v. Lawse (1), The Creditors of Sir Charles Cox (2), and 1874. Hartwell v. Chitters (3), are opposed to the later case of Cook v. HANLE/. Gregson (4). The true test is, could the executor, if sued; succeed MWE OTT. on a plea of plene administravit His right is not affected by the transfer into this Court : 2 Wms. on Executors (7th Ed., 1873), 1040 ; Tipping v. Power (5) ; Boyd v. Brooks (6); Bain v. Sadler (7). Neither is it affected by his being a special trustee : Hall v. Macdonald (8). He is a trustee virtute officii. The Act 32 & 33 Vict. c. 46 simply places specialty creditors on the same footing as those by simple contract, and does not affect the...