Hickey v Kelly

• Jurisdiction: Ireland
• Judgment Date: 10 June 1929
• Date: 10 June 1929
• Court: Supreme Court (Irish Free State)

Supreme Court.

Hickey v. Kelly.

In the MATTER of the ESTATE of STEPHEN KELLY,deceased; BRIDGET HICKEY, Plaintiff (Respondent)

and

DANIEL F. KELLY, Defendant (Appellant) (1)

Practice - Debtors Act - Committal order - Administration suit in Circuit Court - Lodgment of moneys by defendant ordered by Circuit Court Judge - Defendant entitled to a share of moneys ordered to be lodged and also of other assets of deceased - Application by plaintiff to commit defendant for non-lodgment of moneys - Cross-application by defendant for provisional credit and for extension of time for lodgment - Defendant's cross-application not heard by Circuit Court Judge - Discharge of committal order - Debtors Act (Ir.) 1872 (35 & 36 Vict. c. 57),sect. 5.

Appeal by the defendant from an order of the High Court, dated 19th March, 1929, affirming an order of the Circuit Court Judge of the South Western Circuit.

Stephen Kelly died intestate in 1899, leaving a widow and two children surviving him. The two children were Bridget Hickey, a married woman, the plaintiff, and Daniel F. Kelly, the defendant. The widow of Stephen Kelly, to whom administration had been granted, died in 1919, without having fully administered his estate. By her will she left her share of her husband's estate to her son, the defendant, who, therefore, became entitled to two-thirds of the personal estate and chattels real of his father; his sister, the plaintiff, being entitled to the remaining one-third. Plaintiff subsequently obtained a grant de bonis nonto her father's estate. In the course of the administration suit which she brought in the Circuit Court, and in which her brother was the defendant, he was, by order of the Circuit Court Judge, dated 3rd October, 1928, directed to lodge to the credit of the Circuit Court Account and the separate credit of the suit the sum of £146 10s., found to be due by him to the estate of the deceased for occupation rent of premises on the lands of Gortnaboul, and the further sum of £25 for the use and occupation of two houses and premises at Gortnaboul, which also formed part of the estate of the deceased. The Circuit Court Judge also ordered that the said lands of Gortnaboul be put up for sale by public auction, and gave the plaintiff's solicitors carriage of the sale; and gave both the plaintiff and the defendant liberty to bid at the sale. He further ordered the defendant to give the plaintiff clear possession of that portion of the lands of Gortnaboul comprised in Folio No. 9710, County of Kerry, then in the defendant's possession, on or before the 1st November, 1928, for the purpose of the said sale. The defendant did not appeal against this order, nor did he lodge the money. The plaintiff served notice of motion, dated the 20th December, 1928, on the defendant that an application would be made to the Circuit Court Judge on the 10th January, 1929, on her behalf for an order for the committal to prison of the defendant for having disobeyed the order of 3rd October, 1928. The defendant served a notice of a cross-application, dated the 9th January, 1929, which was as follows:—"Application will be made to the Court: (1) for an extension of time within which the defendant was ordered to bring certain moneys into Court; (2) for an order that the defendant may be declared entitled to provisional credit, and that so much of the moneys to be realised by the sale of the lands of Gortnaboul, the property of the deceased in this matter as shall be the property of the defendant, shall be put in reduction of the amount found payable by him, and for which he is accountable to the Court; and (3) for an order that the...