Hickey v Kelly


Supreme Court.

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

Kennedy C.J.:

We are of opinion that this appeal should be allowed.

The case comes from the Circuit Court, sitting at Killarney, on appeal from an order made in the course of an administration suit. The suit was brought to administer the estate of one, Stephen Kelly, who died intestate in the year 1899. The two parties to the suit are his only children, brother and sister. The intestate also left a widow surviving him, who died in the year 1919, having made a will giving her share of the estate of her husband to her son, the defendant. Thus, in the events that happened, the son, Daniel Kelly, the defendant and appellant, became beneficially entitled to two-thirds of the personal estate and chattels real of his father, and the daughter, Mrs. Hickey, the plaintiff and respondent, to the remaining one-third. She obtained a grant de bonis non to her father's estate. The ordinary debts and testamentary expenses of the intestate, other than costs, having been fully paid and discharged, the only matter of administration outstanding, after providing for payment of the costs of administration, is the final distribution of the assets between the two parties interested, the plaintiff and defendant. This is the object to be effected by the sale which has been ordered of the holding of land comprised in the estate of the intestate, as ascertained and found in the usual way.

The appellant having occupied the holding, an order was made fixing an occupation rent upon him in respect thereof. The amount which he should pay for rent in respect of his occupation over a considerable period was found to be 146 11s.

That sum he was ordered to lodge in Court in the matter, but when lodged, and after the payment of costs, two-thirds of the net amount...

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