John Stanislaus Sweetman v William Andrew Sweetman

• Jurisdiction: Ireland
• Judgment Date: 13 February 1868
• Date: 13 February 1868
• Court: Chancery Division (Ireland)

V. C. Court.

JOHN STANISLAUS SWEETMAN

and

WILLIAM ANDREW SWEETMAN.

Hearle v. GreenbankENR 1 Ves. 298; 3 Atk. 695, 715.

Sheddon v. Goderich 8 Ves. 481.

Gardiner v. Fell 1 J. & W. 22.

Wilson v. WilsonENR 1 De G. & Sm. 152.

Spread v. Morgan 11 H. L. Cas. 588.

Padbury v. Clark 2 Mac. & Gor. 298.

Edwards v. Morgan M'Clell. 541.

Stratford v. PowellUNK 1 B. & B. 1.

Rathborne v. Aldborough Hayes, 207.

Wintour v. CliftonENR 21 Beav. 447, 468.

Dewar v. MaitlandELR L. R. 2 Eq. 838.

Bor v. BorENR 3 Bro. P. C. 173.

Stewart v. Henry Vern. & Scriv. 49.

Morgan v. MorganUNK 4 Ir. Ch. Rep. 606.

Leeds v. AmherstENR 2 Ph. 117.

Bor v. BorENR 3 Bro. P. C. 173.

Stewart v. Henry Vern. & Scriv. 49.

Streatfield v. Streatfield 1 W. & T. L. Cas. (2nd Ed.) 284.

Padbury v. Clark 2 Mac. & Gor. 298.

Edwards v. Morgan M'Clell. 541.

Worthington v. WigintonENR 20 Beav. 67.

Campbell v. IngilbyENR 21 Beav. 567.

Wintour v. CliftonENR 21 Beav. 447.

Wintour v. CliftonENR 8 De G. M. & G. 641.

Spread v. Morgan 11 H. L. Cas. 588.

Stapilton v. StapiltonENR 1 Atk. 2.

Stewart v. Stewart 6 Cl. & F. 911.

Williams v. Williams L. R. 2 Ch. Ap. 294.

Dillon v. ParkerENR 1 Swans. 359.

Spread v. Morgan 11 H. L. Cas. 588.

Pullen v. ReadyENR 2 Atk. 587.

Tomkyns v. Ladbroke 2 Ves. 593.

Tibbits v. Tibbits 19 Ves. 663.

Stratford v. PowellUNK 1 B. & B. 1.

Butricke v. Broadhurst 1 Ves. J. 172.

Briscoe v. BriscoeUNK 7 Ir. Eq. Rep. 123; 1 Jon. & L. 335.

Sopwith v. MaughanENR 30 Beav. 235.

Hall v. RaymondUNK 8 Ir. Ch. Rep. 83; affirmed, Drury temp. Napier, 80.

Sibbering v. BalcarrasENR 3 De G. & Sm. 734.

In re BirchENR 17 Beav. 358.

Briscoe v. BriscoeUNK 7 Ir. Eq. Rep. 123; 1 Jon. & L. 335.

Spread v. Morgan 11 H. L. Cas. 588.

Election — Adoption of Election — Acquiescence — Presumption of Election — Family Arrangement.

gard to his estate in the hereditaments ; and I shall declare that v. C. Court. the Petitioners are entitled to compensation for the difference, if 1868. any, in value between the term which the Respondent agreed to LESLIE grant them and that which his estate or power, in fad, enables v. him to give. I am obliged, considering the charges of gross fraud, CIMMLIN. which the Respondent has wholly failed in establishing, to decree that he must pay the costs of this suit. Solicitors for the Petitioners : Messrs. J. awl J. Cramsie. Solicitors for the Respondents : Messrs. Hugh Wallace and Co. JOHN STANISLAUS SWEETMAN v. WILLIAM v. a Court. ANDREW SWEETMAN. 1868. Election--Adoption of Election-Acquiescence-Presumption of Election- Family Arrangement. In 1804, A. covenanted with W. S. to convey to him fee-simple lands, pro-clueing annually the sum of £528 19s. In 1818, W. S., by will, bequeathed to his wife an additional sum of £200 a year, to be in part charged on the proÂÂÂperty to be conveyed to him by A. The residue of his property was bequeathed to his two sons, W. S. the 2nd and J. S. in equal shares. In 1823, A. conveyed the property to W. S., the testator. The testator died in 1826, without having republished his will, and the property conveyed descended to W. S. the 2nd, as his heir-at-law. In 1834, W. S. the 2nd and J. S. executed to a sub-tenant a renewal of some of the premises comprised in the deed of 1823, the ,deed of renewal reciting that the reversion was vested in them by mesne assignÂÂÂment or otherwise. In 1854, W. A. S., entitled as heir of W. S. tlie 2nd, mortÂÂÂgaged the property, described and referred to in the deed of mortgage as his moiety or other interest therein, as charged by the will of W. S., the testator, with the additional jointure. The widow received the additional jointure out of the property conveyed until her death in 1865. Held, that the acts of W. S. the 2nd and W. A. S. did not amount to an election to take under the will of W. S., there being no evidence to show that the parties, at the time, were aware of their right or obligation to elect. Tins case came before the Court upon exceptions to the MasÂÂÂter's Report. It appeared from the pleadings and evidence in the cause, Feb. 12, 13. 142 THE IRISH REPORTS. V C. Court. that by a deed of agreement of the 20th of July, 1804, the Wide 1868. Street Commissioners of Dublin eovenantedwithWilliam Sweetman swEtualo. the elder, the testator, to pay to him the sum of £10,579 128. 7d., v. or in lieu thereof to convey to him ground rents amounting to the SWEETKAN. SI1M of £528 198., and in the mean 'time interest at the rate of 5 per cent. per annum on the said principal sum. On the 7th of December, 1805, the said William Sweetman married a second wife. The settlement, executed upon that marÂÂÂriage, recited the deed of the 20th of July, 1804 ; and by that settlement the testator granted to trustees " the said sum of £10,579 12s. 7d., and the said ground rents, &R., upon trust (inter alia) to secure to his wife a jointure of £400 per annum." By deed of the 17th of October, 1823, the Commissioners, in pursuance of their agreement, conveyed to the testator preÂÂÂmises in the City of Dublin, producing an annual profit rent of £528 10s., and which were the premises in question in the cause. By deed of the 10th of May, 1824, the testator conveyed those premises to the surviving trustees of the deed of settlement of 1805, -upon the trusts of that settlement. On the llth. of September, 1818, the testator made his will. That will recited the deed of agreement of 1804, and the deed of settlement of 1805 ; and the testator thereby bequeathed to his wife, to be received over and above the jointure of £400, " an additional sum of £200 sterling, by the year, during her natural life ; £128 19s. thereof to be paid out of the aforesaid ground rents, and the remaining £71 ls, to be paid to her by" his executors, " out of such funds as they may think proper to approÂÂÂpriate for that purpose." To his son (John Andrew), in the will called John, the testator bequeathed £8000 ; and, after other :bequests, bequeathed to his (the testator's) two sons, all the residue of his property, real, freehold, and personal, as tenants in common. On. the 20th of October, 1825, the testator executed a codicil, attested by a single -witness only, giving one of his daughters £1000, in addition to the provision previously made for her, but never otherwise altered or revoked his will, and shortly afterwards died, leaving William Sweetman the second, his eldest son and heir at law, and the said John Andrew Sweetman and his widow V. a court. surviving. Shortly after the testator's death his two sons made a 1868. partition of his residuary estate. Under that partition William 8-Tv-Erna-IT Sweetman (the second) acquired personal property to the amount v. of £35,000, in moneys and bank stock, besides interests of consider- SW-MMAN. able value in chattel leases. In 1827, William Sweetman (the second) sold part of his moiety of the real property derived under his father's will to his brother, John Andrew Sweetman. This arrangement was carried into effect by a series of six deeds, of even date (the 9th of March, 1827). None of these deeds dealt with the premises in question, but they recited or referred to the residuary clause in the testator's will, and that the brothers were entitled to the property thereby disposed of in moieties. Each of these deeds of assignment conÂÂÂtained a covenant for further assurance. On the 30th of July, 1834, William Sweetman (the second) and John. Andrew Sweetman executed to Robert Smyth a reÂÂÂnewal of a lease made by the Commissioners of Wide Streets of premises in D'Olier-street, and. Hawkins-street, being portion of the premises in question. That deed of renewal contained this recital : " And whereas the estate and interest of the said" Commissioners " in and to the said demised premises have, by rnesne assignÂÂÂment, :or otherwise in the law, come to, and now are legally vested in the said William Sweetman, and John Sweetman, parties hereto." William Sweetman (the second) died intestate, in 1845, leaving the Respondent his heir at law. In 1852, John. Andrew Sweet-man conveyed to the Petitioner all his interest in the premises in question. Upon the death of William Sweetman the elder, his widow entered into possession of the whole of the rents of the property in question, amounting to £52819s., and the difference (£71 ls.) beÂÂÂtween that sum and the aggregate (£600) of the two annuities to which she was entitled under the settlement of 1805, and under the will of 1818, -was paid by William Sweetman (the second), and John Andrew Sweetman, and subsequently by the Petitioner, and the Respondent, and his brother and sister, as the next of kin of William Sweetman (the second), in equal shares. The widow of the testator continued in possession of the rents, till her death, in 1865. THE IRISH REPORTS. In 1854, the Respondent executed a mortgage, comprising his interest in these premises, the statements in which will be found in the judgment of the Vice-Chancellor. By a decretal order, made in this cause on the 8th of May, 1866, it was declared that a case of election arose between the title of William Sweetman (the second), as derived under his father's will, and his title to the premises, as heir-at-law to his father, and it was referred to the Master to inquire and report whether William Sweetman, the son of the testator, in his lifetime elected to take under or against the will of the testator, William Sweetman ; or whether the Respondent, William Andrew Sweet-man, since the death of his father, elected to take under or against the said will ? The Master, by his Report, dated...