Henry v Henry

• Jurisdiction: Ireland
• Judgment Date: 24 February 1872
• Date: 24 February 1872
• Court: Chancery Division (Ireland)

V. C. Court.

HENRY

and

HENRY.

Bootle v. Blundell 19 Ves. 517.

Lockhart v. HardyENR 9 Beav. 379.

Mead v. HideENR 2 Vern. 120.

Bridgman v. DoveENR 3 Atk. 201.

Collis v. Robins 1 De. G. & Sm. 141.

Rancliffe v. Lady ParkynsENR 6 Dow. 179.

Stephens v. Stephens 1 De G. & Jo. 62.

Bidwell's Settlement 11 W. R. 161.

Bootle v. BlundellENR 1 Mer. 230.

Hancox v. Abbey 11 Ves. 186.

Vernon v. Earl ManversENR 31 Beav. 623.

Greene v. GreeneENR 4 Madd. 156.

Maddison v. Chapman 1 Johnst. & Hem. 470.

Blake v. Bunbury 1 Ves. Jun. 523.

Orrell v. OrrellELR L. R. 6 Ch. App. 302.

Wilkinson v. Dent Ibid. 339.

Padbury v. Clark 2 M'N. & G. 298.

Fitzsimons v. FitzsimonsENR 28 Beav. 417.

Honywood v. ForsterENR 30 Beav. 14.

Miller v. ThurgoodENR 33 Beav. 496.

Watson v. Brickwood 9 Ves. 447.

Lockhart v. HardyENR 9 Beav. 379.

Wintour v. CliftonENR 8 De G. M. & G. 649.

Howells v. JenkinsENR 2 J. & H. 706.

Will — Construction — Exoneration of Personalty — Election — "My Property" — Extent of Reference —

286 THE IRISH REPORTS. [I. R, Chancery. ordered that the Plaintiff do pay to the Defendant, Anna Maria 1871. Best, her costs of appearing on this motion." Solicitors for the Plaintiff : Messrs. Henry A. Dillon 8f Co. Solicitor for the Defendants : Mr. H. Oldham. HENRY v. HENRY. V. C. Court. 1872. Will-Construction-Exoneration of Personalty-Election---" My Property"- Extent of Reference-Order of Liability of Properties to Payment of Jan. 20. Feb. 1, 24. .Debts. R. H., being owner of the freehold lands of B., subject to two rentcharges thereon of £100 a year each (over one of which he had a power of appointment among his children, and the other of which had been settled on his son M., at his marriage), and being also owner of an undivided seventh of the freehold lands of D. (which share stood charged as from the date of his death, with a life annuity for his daughter I., and £500 for her surviving children) and being also absolutely seised of certain freeholds in A., made his will as set out post, 288: Held, on the language of the will, 1. That the personal estate was not exonerated from payment of the tesÂÂtator's debts : 2. That no election arose in the case of M. such as to prevent his retaining his £100 rentcharge, as well as his share of the lands of B., jointly with his brother, R. B.: 3. That no case of election by the unmarried daughters arose in connexion with the devise to them of " my property in D.," as these words were referrible to the testator's one-seventh share of 1). : 4. That the reference contained in the words " that share" was confined to the two immediately preceding gifts, other clauses of survivorship being appliÂÂcable to the earlier devises : 5. That the order of liability of the testator's property to the payment of his debts was-(a). The personalty : (b). The freehold lands in A.: (c). The lands of B.: (d). The one-seventh share of D. BILL filed 30th March, 1870, to carry out the trusts of the will of the Rev. Robert Henry, and administer his real and personal estate. The usual primary order had been made on the 17th of November, 1870, and the case now came back into Court on further consideration of the Chief Clerk's certificate. The bill stated that on the occasion of the testator's marriage -with Maria Chambre, an indenture, bearing date the 6th Decem EQUITY SERIES. VoL. VI.] 287 ber, 1815, was executed, whereby his father, the Rev. Joseph V. C. Court. Henry, granted to trustees the lands of Ballintemple, upon trust 1872. to pay out of the profits thereof to Robert Henry and Maria his HENRY then intended wife, during their joint lives and the life of the sur- HENRY. vivor, a yearly rentcharge of £100, and after the decease of the survivor to the children of the marriage, as their parents or the survivor should by deed or will appoint, and, in default of appointÂÂment, to such children equally as tenants in common, with certain remainders over ; and, subject to said rentcharge, the trustees were to stand seised of the lands for the settlor absolutely. There were nine children of the marriage, four sons, viz., the Defendants Meredith, and Robert Bailie ; and Joseph and Thomas, who both died in their father's lifetime under twenty-one (the former before and the latter after the 1st of January, 1834) (1), and five daughters, viz., the Defendants, Maria Margaret, Olivia Agnes, and Mary Grace Henry, and Isabella, wife of Thomas Mulligan ; and Eliza Henry, who died after 1834, but before her father, unmarried, and of full age. By an indenture dated the 23rd January, 1824, Margaret ChamÂÂbre, the mother of Maria Cambre, otherwise Henry, with the conÂÂsent of Robert Henry and Maria his wife, appointed certain freeÂÂhold premises at Dolphin's Barn to the use of the Plaintiff Thomas G. Henry, in trust for Maria Henry for her separate use for life, with remainder to the issue of the marriage as Maria Henry should appoint, and in default of appointment to all the chilÂÂdren equally as tenants in common, with benefit of survivorship and aceruer in the event of any of them dying under twenty-one and unmarried, and with an ultimate remainder to Robert Henry absolutely. And it was thereby agreed that this appointment should be taken in full satisfaction of a sum of £1000, which had been by the deed of the 6th December, 1815, brought into settleÂÂment by Margaret Chambre, and limited to the same uses as the rentcharge of £100 therein mentioned. All the estate and interest of the Rev. Joseph Henry in the lands of Ballintemple afterwards became vested in the Rev. Robert Henry, who, in order to make a provision for his eldest son, MereÂÂdith, and for any issue he might leave, charged the said lands with (1) See 3 & 4, Wm. 4, e. 106, s. 6. 288 THE IRISH REPORTS. [I. R. V. C. Court. a yearly rentcharge of £100 for him absolutely, determinable, 1872. nevertheless, in the event of Meredith's dying without issue surÂÂHENRY viving him. HENRY. By an indenture dated the 25th November, 1863, and executed on the marriage of Isabella Henry with Thomas Mulligan, the Rev. Robert Henry, her father, granted or purported to grant the preÂÂmises at Dolphin's Barn to certain trustees in trust to raise and pay thereout, after his death, a yearly rentcharge of £25 to Isabella for her separate use for her life ; and, after her death, in case there should be any children of the marriage then living, the trustees were to raise the sum of £500 for their benefit, as therein menÂÂtioned ; provided that if none of them attained the age of twenty-one or married, the trust term created to raise the said sum of £500 was to merge in the inheritance for the benefit of the Rev. Robert Henry absolutely. There was one child of this marriage living at the date of the filing of the bill. Maria Henry died in 1868, without having exercised the power of appointment over the Dolphin's Barn premises given to her by the deed of the 23rd January, 1824 ; nor was there any joint apÂÂpointment by her and her husband, in pursuance of the power given to them by the settlement of the 6th December, 1815, of the rentcharge of £100 or the sum of £1000 therein mentioned. The Rev. Robert Henry made his will, dated the 20th day of March, 1868, as follows :- " First, I give, grant and assign, confirm and convey, to my two sons Meredith and Robert Bailie Henry, and to the survivor and the heirs of such survivor, the Townland of Ballintemple, they first paying my lawful debts ; or, if they do not agree to do this, then and in that case, Meredith to have the one hundred pounds per annum settled on him at his marriage, and Robert to have the residue on paying my debts, as I consider the plantations are worth more than my debts will amount to. I give to Maria Margaret, Olivia Agnes, and M4ry Grace Henry, my property in Dolphin's Barn, in the City of Dublin, proÂÂvided they marry with the approbation of their brothers and the executors to this my will, and pay out of my chattel property five hundred pounds, which is settled out of it on Isabella on her marriage with Doctor Mulligan. In case any of my daughters should die without lawful issue, their share to go to their surviving sisters. I also will to my brother Joseph ten pounds per annum during his life, which is to revert to my children after his death. I also will that Margaret White or Watson, who nursed my children, should be allowed three Vot. VI.] EQUITY SERIES. 289 pounds per annum during her life, which is to revert to my family at her death. V. C. Court. It is my will that if any of my children die without lawful issue, that the sur 1872. vivors shall inherit that share. It is also my will that my chattels should be dis HENRY posed of to the best advantage, and the amount they bring to be applied at in V. terest for the benefit of my children, and towards the payment of my just and HENRY. legal debts. The plate which was presented to me by the parishioners of DrumÂÂcree, I will that it be kept by my children, and handed to their children or surÂÂvivors ; as Bobert got his poor mother's watch, I will mine to Meredith's son William. The insurances on my life may go towards the payment of my debts, or put at interest for the use of my family, as my executors may think best. I appoint my brothers, Thomas G. Henry and Joseph Henry, and General Chambre, my executors, and to see that this my will be carried into effect." The testator was, at the time of his death, on the 4th of NovemÂÂber, 1869, possessed of certain freehold property in the counties of Armagh and Louth, not referred to in his will. Five questions now arose upon the construction of the will ; viz.:-1. Whether the personal estate was exonerated from payment of the testator's debts ; 2. Whether Meredith was entitled to retain his £100 a year, charged by the deed of 1855, as well as his share of Ballintemple jointly with his brother Robert ; 3. Whether a case of election by the three...