Hodgens v Hodgens

• Jurisdiction: Ireland
• Judgment Date: 16 June 1875
• Date: 16 June 1875
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

Before BALL, C. (who, however, having been counsel in the case, took no part in the decision), CHRISTIAN, L. J., and LAWSON, J.

HODGENS

and

HODGENS.

Hodgens v. HodgensENR 4 Cl. & Fin. 323.

Johnson v. Hodgens I. R. 7 Eq. 525.

Jones v. HowellsENR 2 Hare, 342.

Faulkner v. DanielENR 3 Hare, 208.

Davis v. ChanterENR 2 Phill. 545.

In the Goods of the Elector of Hesse 1 Hagg. 93.

Harris v. Milburn 2 Hagg. 62.

Stackpoole v. Beaumont 3 Ves. 98.

Millet v. Rowse 7 Ves. 419.

Bathurst v. Murray 8 Ves. 79.

Cave v. CaveENR 15 Beav. 227.

Lloyd v. WilliamsENR 1 Madd. 450.

Wallace v. Auldjo 1 De G. Jo. & Sm. 643.

Macaulay v. Philips 4 Ves. 15.

Johnson v. Johnson 1 Jac. & Walk. 472.

Ellison v. Thomas 1 De G. Jo. & Sm. 18.

Ex parte Hodgens, in re Hodgens 11 Ir. Eq. R. 99.

Walker v. Walker 11 Ir. Eq. R. 329.

Baker v. HarwoodENR 1 Hare, 327.

Doady v. HigginsENR 9 Hare, App. 32.

Hawkins v. HawkinsENR 1 Hare, 543.

Barrs v. JacksonENR 1 Phill. 582.

Bouchier v. Taylor 4 Brown, P. C. 708.

Boyse v. ColcloughENR 1 K. & J. 134.

Greenwood v. Churchill 1 Myl. & K. 546.

Benson v. HadfieldENR 4 Hare, 32.

Cousens v. RoseELR L. R. 12 Eq. 366.

Pointon v. PointonELR L. R. 12 Eq. 547.

Coates v. LegardELR L. R. 19 Eq. 56.

Gray v. Turnbull L. R. 2 Sc. App. 54.

In the matter of Anne Walker Ll. & G. temp. Sugd. 325.

Baldwin v. BaldwinENR 5 De G. & Sm. 319.

Lovett v. LovettENR 1 Johns, 118.

Davis v. ChanterENR 2 Phill. 545.

Faulkner v. DanielENR 3 Hare, 208.

Jones v. HowellsENR 2 Hare, 342.

Clough v. DixonENR 10 Sim. 564.

Robinson v Bell 1 D. & Sm. 630.

Moores v. ChoatENR 8 Sim. 508.

In re Anne Walker Ll. & G. temp. Sugd. 299.

Hodgens v. HodgensENR 4 Cl. & Fin. 323.

Campbell v. Mackay 1 Myl. & Cr. 603.

Ward v. the Duke of NorthumberlandENR 2 Anst. 469.

Coates v. LegardELR L. R. 19 Eq. 571.

Barrs v. JacksonENR 1 Phill. 582.

Blackam's CaseENR 1 Salk. 290.

Lunham v. Pirie 2 Jur. (N. S.) 1201.

Salvidge v. HydeENR 5 Madd. 146.

Greenwood v. Churchill 1 M. & K. 559.

Pointon v. PointonELR L. R. 12 Eq. 547.

Coates v. LegardELR L. R. 19 Eq. 56.

Andrews v. Elliott 5 Ell. & Bl. 501.

Clough v. DixonENR 10 Sim. 564.

Ellice v. GoodsonENR 2 Coll. C. C. 4.

Davis v. ChanterENR 2 Phill. 545.

Barrs v. JacksonENR 1 Phill. 582.

Bouchier v. Taylor 4 B. P. C. 708.

Doody v. Higgins 9 Hare, App. xxxii.

Doody v. HigginsENR 9 Hare, 32, Append.

Limited administration — Plenary suit — Multifariousness and misjoinder — Sufficiency of representation — Ad valorem stamp — Disputed marriage — Estoppel against claim as widow — Relief on first hearing — Relevancy of decree — Construction of pleadings — Revivor of appeal — Practice.

.4 THE IRISH REPORTS. [I. R. eh. App. HODGENS HODGENS (1). 1875. Limited administration-Plenary suit-Multifariousness and mi#oinder May 24, 25. Sufficiency of representation-Ad. valorem stamp-Disputed marriage-- June 4, 5, 16, Estoppel against claim as widow-Relief on first hearing-Relevancy of decree-Construction of pleadings-Revivor of appeal-Practice. A draft deed, which was subsequently decided by the House of Lords to have the effect of a binding settlement, was prepared, under the sanction of the Court of Chancery, on the marriage in 1827 of A., an adult female ward posÂÂÂsessed of large real and personal estate, with the Defendant T. H., who had committed a series of gross contempts regarding her. As modified by an. amending draft, also prepared under the sanction of the Court some years later, it limited her property to her separate and inalienable use for life, with (in the events which happened) a vested remainder at twenty-one to her son T. W. H., the only child of the marriage who attained that age ; and it empowered her to appoint a small part of the personalty to T. H., who was strictly excluded from any other benefit. In 1834 A. eloped with M., by whom she had. a daughter, the Defendant P. M. In 1862, T. W. H. married the Plaintiff, and died. inÂÂÂtestate in 1867, leaving two children by her, the minor Defendants. A., in alleged exercise of a power which was reserved to her by the draft settlements in default of issue attaining a vested interest, bequeathed all her property to P. M., and died. in 1870 ; whereupon It., with whom T. W. H. had cohabited, claiming to have been married to him in 1856, obtained limited administration of his estate. The Plaintiff disputed. R.'s right, and asserted herself to be the lawful widow, and the parties having interpleaded, R. traversed the Plaintiff's declaration, when a consent was entered into, and. made a rule of the Court of Probate, in pursuance of which that cause was abandoned, R.'s grant was reÂÂÂvoked, and. an unstamped one made to the Plaintiff limited " to attend, supply, substantiate, and confirm proceedings" in the cause in which the settled funds were standing, or in any other concerning them. The Plaintiff then filed a bill, to which R. was not made a party, praying that the Court might declare 1. The rights of the parties in the personalty of A. ; that T. H. and P. M. were excluded. from any interest in it ; and that it became absolutely vested in T. W. H., subject to A.'s life interest : and, 2. That, subject to the debts (if any) of T. W. H., the Plaintiff, as his widow, was entitled to one-third of the funds, and. the minor Defendants, as his sole next-of-kin, to the other two-thirds ; and for consequential relief : Held, on appeal, that the Vice-Chancellor had. rightly declared at the first VOL. X.] EQUITY SERIES. hearing 1. That the legal personal representative of T. W. H. became entitled to the funds on A.'s death, to the exclusion of T. H. and P. M.; and 2. (diss. CHRISTIAN, L. J.) That the Plaintiff as the lawful widow, and the, minor DeÂÂÂfendants as the lawful children, of T. W. H., were beneficially entitled as his next-of-kin (but subject to the payment of his debts, &c., if any,) to the funds in equal third shares :- Held by CHRISTIAN, L. J., as to the second branch of the decree :-That the bill was multifarious, and objectionable for misjoinder ; that there was no suffiÂÂÂcient personal representative of T. W. H. before the Court, and the Plaintiff's grant would have required an ad valorem stamp ; that R. was a necessary party, and had not estopped herself from all claim as T. W. H.'s widow; and (on the language of the pleadings) that neither the Plaintiff nor T. H. had put the question of the marriage in issue. Practice on revivor of appeal. APPEALS by Thomas Hodgens and Penelope Mahon, two of the Defendants, from a decree of the Vice-Chancellor of the 27th May, 1874, of which the curial part was as follows : "This Court doth declare that Thomas Walker Hodgens, on attaining the age of twenty-one years, became, and at his death was, entitled to a vested interest in the sums of £1012 10s. 4d. Government New 3 per cent. Stock, and £16,989 12s. 2d. Bank Stock, standing in the books of the Accountant-General of this Court to the credit entitled, 'Thomas Hodgens and Anne Hodgens, otherÂÂÂwise Walker, his wife, against Elizabeth Wheeler and Lydia Carr, and to the separate credit of Anne Hodgens,' subject only to the life interest therein of his mother Anne Hodgens, and that upon the death of the said Anne Hodgens, the legal personal representative of the said Thomas Walker Hodgens became entitled to the same ; and this Court cloth declare that such personal represenÂÂÂtative is entitled to apply in the cause of Hodgens v. Wheeler for a transfer of the said sums of stock, and for payment of the dividends which have accrued. thereon since the death of the said Anne Hodgens ; and this Court doth declare that the Defendant Thomas Hodgens is not, as surviving husband of said Anne Hodgens, or as next-of-kin of Henry Walker Hodgens, deceased, entitled to said funds or any part thereof ; and this Court doth declare that the Defendant Penelope Mahon is not, as executrix of or legatee named in the will of the said Anne Hodgens, entitled to the said funds or any part thereof. And this Court (loth declare that, as between the Plaintiff and the Defendants Thomas Henry Hodgens and Violet Mary Hodgens on the one hand, and Defendant Thomas Hodgens on the other hand, the said Plaintiff, as the lawful widow of the said Thomas Walker Hodgens, and the said Defendants Thomas Henry Hodgens and Violet Mary Hodgens, as the lawful children of the said Thomas Walker Hodgens, who died intestate, are beneficially entitled under the statutes for the distribution of the estates of intestates, but subject to the payment of the funeral and testamentary expenses and debts, if any, of the said Thomas Walker THE IRISH REPORTS. [L R. Hodgens, to the said funds in equal third shares, subject as to the Plaintiff's share thereof to the trusts of the marriage articles of the 14th day of August, 1872, in the Bill of Revivor and Supplement in this cause mentioned. And this Court doth declare that the Defendant Thomas Hodgens is not one of the next-of-kin of the said Thomas Walker Hodgens, or entitled as such to any part or share of the same ; and this Court doth declare the Plaintiff entitled to her costs of this cause, to be paid to the said Plaintiff by the said Defendants Thomas Hodgens and Penelope Mahon, when taxed and ascertained. And this Court doth declare the Defendants Thomas Henry Hodgens, Violet Mary Hodgens, and Isabella Jane Breslin, entitled to their costs, to be paid by the said Plaintiff when taxed and ascertained; the Plaintiff to have the costs of the said Thomas Henry Hodgens and Violet Mary Hodgens over with her own costs against the said Defendants Thomas Hodgens and Penelope Mahon, and any of the parties are at liberty to apply to this Court as they may be advised." The bill (1) was filed by Mary Anne Hodgens, widow, on the 27th of June, 1872, and in its first forty-two paragraphs it set out at great length...