JOHN PIERSE HARTFORD v NICHOLAS MAHON POWER. [v C. Court.]

• Jurisdiction: Ireland
• Judgment Date: 04 May 1868
• Date: 04 May 1868
• Court: Vice-Chancellor's Court (Ireland)

V. C. Court.

JOHN PIERSE HARTFORD

and

NICHOLAS MAHON POWER.

Massy v. Hayes Ir. Rep. 1 Eq. 110.

Gilbert v. LewisENR 1 De G. J. & S. 38.

Massy v. Hayes Ir. Rep. 1 Eq. 110.

In re Tarsey's TrustELR L. R. 1 Eq. 561.

Ex parte RayUNK 1 Mad. 199.

Adamson v. Armitage 19 Ves. 415.

Hartley v. Hurle 5 Ves. 540, 545.

Inglefield v. CoghlanENR 2 Col. Ch. Cas. 247.

Ex parte KillickUNK 3 Mont. D. & De G. 480.

Phillipo v. Munnings 2 Myl. & Cr. 309.

Bullock v. Downes 9 H. L. Cas. 1.

Life Assurance of Scotland v. SiddalENR 3 De G. F. & J. 58.

Bennet v. DavisENR 2 P. Wms. 316.

Rich v. Cockell 9 Ves. 369, 375.

Parker v. Brooke 9 Ves. 583.

Burrell v. EgremontENR 7 Beav. 205.

Baldwin v. BaldwinUNK 4 Ir. Ch. Rep. 501.

Corbally v. GraingerUNK 4 Ir. Ch. Rep. 174.

Arthur v. ArthurUNK 11 Ir. Eq. Rep. 511.

Obee v. BishopENR 1 De G. F. & J. 141.

Tyson v. JacksonENR 30 Beav. 384.

Hodgson v. BibbyENR 32 Beav. 221.

Rolfe v. Gregory 11 Jur. N. S. 98.

Massy v. Hayes Ir. Rep. 1 Eq. 117.

Inglefield v. CoghlanENR 2 Coll. Ch. Cas. 247.

Green v. BrittenENR 1 De G. J. & S. 649.

Lewis v. MathewsELR L. R. 2 Eq. 177, 180.

Atcheson v. AtchesonENR 11 Beav. 485.

Phillipo v. Munnings 2 Myl. & Cr. 306.

Dix . BurfordENR 19 Beav. 409.

Tyson v. JacksonENR 30 Beav. 384.

Bullock v. Downes 9 H. L. Cas. 1.

Piggott v. JeffersonENR 12 Sim. 26.

Scott v. Jones 4 Cl. & F. 382.

Gilbert v. LewisENR 1 De G. J. & S. 38.

Massy v. Hayes Ir. Rep. 1 Eq. 110.

Adamson v. Armitage 19 Ves. 416.

Lindsell v. ThackerENR 12 Sim. 178.

Ex parte RayUNK 1 Mad. 207.

Inglefield v. CoghlanENR 2 Col. Ch. Cas. 247.

Arthur v. ArthurUNK 11 Ir. Eq. Rep. 511.

Green v. BrittenENR 1 De G. J. & S. 649.

Re Tarsey's TrustELR L. R. 1 Eq. 561.

Archer v. RorkeUNK 7 Ir. Eq. Rep. 478.

Tyler v. Lake 2 Rus. & Myl. 187.

Darley v. MartinENR 13 C. B. 683.

Hartley v. TribberENR 16 Beav. 514.

Atcheson v. AtchesonENR 11 Beav. 485.

Moffatt v. BernieENR 18 Beav. 211.

Bridgman v. GillENR 24 Beav. 302.

Spickernel v. HothamENR Kay, 669.

Rolfe v. Gregory 11 Jur. N. S. 98.

Tyson v. JacksonENR 30 Beav. 384.

Phillipo v. Munnings 2 Myl. & Cr. 306.

Burrell v. EgremontENR 7 Beav. 205.

Separate Estate & Sole use and benefit of Married Woman — Statute of Limitations.

204 THE IRISH REPORTS. V. C. Court. JOHN PIERSE HARTFORD v. NICHOLAS MAHON 1868. POWER. April 25, 29. May 4. Separate Estate-Sole use and benefit of Married Woman-Statute of Limi tations. In 1832, M., by will, appointed his daughter and her husband, the DefenÂÂdant, his residuary legatees, and named them respectively his executrix and executor. In 1837, by a codicil, M. bequeathed to her £2000 " for her sole use and benefit." The Defendant paid all M.'s debts and legacies, except this legacy of £2000. The legatee died in 1866, indebted to the Plaintiff for money lent upon the credit of her separate estate. The Plaintiff obtained administraÂÂtion to her, and instituted this suit, praying a declaration that this will and codicil created a valid trust (binding the Defendant) of this legacy for the sole and separate use of the legatee, and to compel payment of the whole £2000, or at least of so much as should be necessary to discharge the liabilities affectÂÂing her separate estate. Held, that a trust had been created for the separate use of the legatee, and that the Plaintiff's right to enforce it was not barred by the 40th section of the Statute of Limitations. THIS was a motion for a decree. The Plaintiff sued. as administrator of Mrs. Margaret Power, the wife of Nicholas Mahon Power, the Defendant. From the evidence, it appeared. that Mrs. Power married the Defendant in 1818, and was, in 1832, the sole surviving child of Mr. Nicholas Mahon, who made his will on the 16th of August in that year. The testator thereby bequeathed £10,000 to a grand-daughter ; and, after bequeathing some small legacies, apÂÂpointed the Defendant and his wife residuary legatees of the entire property, and. also named them respectively executor and executrix. By a codicil, dated the 2nd of October, 1837, the testator bequeathed. three small legacies ; " and. also £2000 to my beloved daughter, Margaret Power, for her sole use and benefit." By a second codicil, dated the 1st of July, 1838, the testator bequeathed. to " Mrs. Mary Anne O'Gorman, wife of Richard O'Gorman, the sum of £1000, sterling, to be paid her in twelve months after" his " decease for her sole and separate use, free from the debts, control, or engagements of her husband, the said V. C. Court. R. O'Gorman, the same to be paid and payable to her by" the 1868. testator's " executors upon her sole and separate receipt and dis- HARTFORD charge, notwithstanding her coverture." POWER. In 1841 the testator died. Probate was granted to the DeÂÂfendant, and the right of the Defendant's wife, as executrix, was reserved. The Defendant paid all the testator's debts and legacies, except the legacy of £2000. In January, 1860, the Defendant's wife, in consequence of differences with him, quitted his residence, and came to reside in Dublin ; and, being unprovided with money, incurred debts to (amongst others) the present Plaintiff, whom she, from that time till her death in November, 1866, employed as her solicitor. Mrs. Power expressly told the Plaintiff that the legacy of £2000 had not been paid to her, and the moneys (amounting to £100) lent to her by him were borrowed by her, and lent by him, solely on the credit of her separate estate, and on the clear understanding that they were to be repaid by her out of it, Mrs. Power and the Plaintiff having been expressly informed that the Defendant would not pay any debts incurred by her after her separation. Mrs. Power also became indebted to the Plaintiff in costs incurred on the like understanding. On the 25th of April, 1860, after the institution of proceedings for a separation and alimony, a separation deed, securing to Mrs. Power £1000 a-year for her separate use, was executed by the Defendant. By that deed the trustees covenanted to indemnify the Defendant against any debts incurred, or to be incurred, by his wife after the 1st of January, 1860 ; and it was further exÂÂpressly provided thereby that nothing therein contained should be deemed to affect, or prejudice, or deprive her, the said Margaret E. Power, of any right, claim, or demand, if any, to which she was, or might be entitled, under her father's will, or the settleÂÂment made upon her marriage, or otherwise howsoever. This proviso was inserted for the purpose of reserving Mrs. Power's right to insist on being paid the legacy of £2000, which Mrs. Power, in September, 1860, directed the Plaintiff to compel payment of. The Defendant having made no reply to the PlainÂÂtiff's letters demanding payment of the legacy, a cause petition 206 THE IRISH REPORTS. Y. C. Court. was prepared ; but some friends prevailed with Mrs. Power to 1868. desist for the present from proceeding against her husband to recover the legacy. Accordingly, no further steps were taken. HARTFORD v. Mrs. Power was always, from the date of the separation down POWER. to her death, in pecuniary embarrassment, and, at her death, owed about £1100, of which sum a portion was due to the Plaintiff. The Defendant refused to pay these debts, and a sale of Mrs. Power's chattels produced a sum wholly insufficient to pay her debts. On the 7th of October, 1867, the Plaintiff, as administrator of Mrs. Power, by letter, required the Defendant to pay, out of the assets of her father, the legacy of £2000, with interest. The Defendant replied that he had settled all the debts and legacies of Mr. Mahon more than twenty years before ; and, by a subsequent letter, stated that Mrs. Power had, by letter, made over to him the said legacy left by her father. The bill submitted that the will and codicil constituted an exÂÂpress, valid, and binding trust, as to the legacy of £2000 for the separate...