John Boyd and Anne Boyd v John Higginson and Others

• Jurisdiction: Ireland
• Judgment Date: 04 June 1842
• Date: 04 June 1842
• Court: Rolls Court (Ireland)

John Boyd and Anne Boyd

and

John Higginson and others.

Rolls.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

J. A. devised and bequeathed to S. H. all his real and personal estate for her life, she paying there—out the legacies after-mentioned in three years after his decease; he then gave life—annuities, and declared “the said several legacies or annuities to be charged on my real estate, the first payment to be made three years after my decease;” and then bequeathed several pecuniary legacies, and gave all his real and personal estate atter the death of S. H., to T.

P. H. for life, with remainders over, if he should die without issue. Held, on demurrer, that the legacies were charged upon the inheritance.

The testator died in 1811. S. H. entered, &c., and, in 1825, died without having paid the legacies. T. P. H., who took a quasi estate tail under the will, sold part of the lands; and, having devised the remainder, died in 1833, leaving the legacies unpaid. On the 31st of December 1833, the legatees filed a bill for payment by sale of J. A.'s real estate, against the heir-at-law of J. A., and the devisees of T. P. H., and the persons who purchased from him, with notice of the legacies. No subpœna to appear and answer that bill was ever served. On the 24th of December 1841, the legatees filed another bill stating the filing and purport of the bill of December 1833, “as by said original bill of record will appear;” and, relying on the filing of that bill as a bar to the Statute of Limitations, prayed that J. A.'s will might be established, &c.;—that the legacies might be decreed well charged on his real estate;—and for the usual accounts, and, if necessary, for a sale, &c. On general demurrer to this bill, which was not described in any part of it as an amended bill, but was filed and marked as such by the proper Officer,—Held, that the bill of 1841 should be considered as an amended bill; that the suit was pending from the date of the filing of the original bill in 1833; and that the filing of that bill, without service of subpœnas, was sufficient to save the plaintiffs' demand from being barred by the Statute of Limitations, 3 & 4 W. 4, c. 27, s. 40.

Semble, if a bill were filed as an illusory proceeding to evade the provisions of the Statute of Limitations, the Court might, on a proper application, order it to be taken off the file.

John Allen being seized and possessed of considerable real and personal estate, duly made and published his will, bearing date the 9th of March 1809, attested so as to pass real estate, and in the words following:—“First, I leave, devise, give and bequeath unto my dearly beloved mother Sarah Hood, now of the city of London, widow, all my real and personal estate, goods, chattels and effects of what nature and kind soever, for and during the term of her natural life, she paying thereout the several legacies hereinafter mentioned, in three years after my decease; that is to say, none of the said legacies to be paid before three years have expired after my decease.” The testator then by his said will gave annuities to several persons for their respective lives, and declared “the said several legacies or annuities to be charged and chargeable on his real estate, to be paid half-yearly, and the first payment to com mence and be payable three years after his decease.” He then gave legacies, and, amongst others, those to which the plaintiffs, partly in their own right respectively, and partly as personal representatives of others of the legatees, were now entitled, amounting altogether to £300, and further provided as follows:—“I leave, devise, give and bequeath unto my dearly beloved half-brother Thomas Pelham Hood, all my real and personal estate of what nature or kind whatsoever, immediately after the decease of my said mother, for and during the natural life of the said T. P. Hood, he the said T. P. Hood taking upon himself and assuming the name of Allen, and to the lawful issue of the said T. P. Hood; but in case the said T. P. Hood should die without issue, then I leave, devise and bequeath to John Higginson and Hugh Boyd, jun., of, &c., all my real estate as, tenants in common, and not as joint tenants, they paying thereout the sum of £2000 to Samuel Thorpe,” &c.

The testator died in 1811, without altering or revoking his said will, and Sarah Hood, his mother, entered into possession of his real and personal estate. She died in 1825 without having paid any of the legacies, and T. P. Hood having upon her death become seized of the testator's real estate, afterwards sold portions of it to persons having notice of the legacies, and executed a deed of indemnity to secure them against the demands of the legatees. He died in 1833, and by his will, bearing date the 10th of April 1831, duly attested, &c., devised the remaining unsold part of the real estate of John Allen to his widow Sarah Hood, for life, remainder to the defendant, the said John Higginson, who was heir-at-law of John Allen the testator, in fee.

On the 31st of December 1833, the plaintiffs filed their original bill in this Court against Sarah Hood, since deceased, and John Higginson, the said Sarah and John being devisees under the will of T. P. Hood, and the said John being heir-at-law of the testator J. Allen, and also against the several purchasers from T. P. Hood of the real estate of John Allen, who purchased with notice of the unpaid legacies which, as the plaintiff's alleged, were charged upon the lands, to raise the amount due to the plaintiffs on foot of the said legacies by sale, if necessary, of the said real estate. On the same day, subpœnas to appear and answer the said original bill directed to the said several defendants were issued, but never afterwards were served.

The present bill was filed on the 24th of December 1841, against the defendant John Higginson, then in possession, under the will of T. P. Hood, of the remaining unsold part of the real estate devised by John Allen, and the several purchasers from T. P. Hood. It stated the foregoing facts, and relying on the filing of the original bill and the issuing of the subpœnas to appear and answer it as a proceeding which saved the plaintiffs' demand from the bar of the Statute of Limitations, prayed that the will of John Allen might be established and declared well proved against John Higginson, his heir-at-law, and that the legacies to which the...