Johnson v Hodgens

• Jurisdiction: Ireland
• Judgment Date: 07 May 1873
• Date: 07 May 1873
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

JOHNSON

and

HODGENS.

Cresy v. BevanENR 13 Sim. 354.

Powell v. CockerellENR 4 Hare, 565.

Philanthropic Society v. Hobson 2 m. & K. 357.

Roch v. CallenENR 6 Hare, 531, 534.

Penny v. WattsENR 2 Phil. 149.

Croft v. WatertonENR 13 Sim. 653.

Clough v. DixonENR 10 Sim. 564.

Price of Wales, &c. Associaton Co. v. PalmerENR 25 Beav. 605.

Hill v. BonnerENR 26 Beav. 372.

Whiteaves v. Melrill 5 W. R. 576.

Goods of SomersetELR L. R. 1 P. & D. 350.

Davis v. ChanterENR 2 Ph. 545.

Williams v. AllenENR 32 Beav. 650.

The Attorney-General v. CornthwaiteENR 2 cox, 44.

Haycock v. HaycockENR 2 Ch. Cas. 124.

Faulkner v. DanielENR 3 Hare, 199.

Hill v. Binney 6 Ves. 738.

Aranda v. WhitinghamENR Moseley, 84.

In the Goods of Newsom 2 Notes of Cases, 15.

Goods of HiltonENR 3 Hagg. (Eccl.) 793.

Goods of WattsENR 1 Sw. & Tr. 538.

Re Fleming 8 Ir. Jur. (N. S) 39.

Cleland v. Cleland Prec. in Chan., Case 59.

Davis v. ChanterENR 2 Phil. 545.

Roberts v. RobertsENR 2 Phil. 534.

Fitzharginge Berkeley 6 Ves. 251.

The Dean and Chaper of Ely v. GayfordENR 16 Beav. 561.

Bliss v. PuthamENR 29 Beav. 20.

Salkeld v. Phillips 2 Yo.& Coll. (Exch.) 589.

Ellice v. GoodsonENR 3 My, & Cr. 653.

Mansell v. Feeney 2 Johns.& Hemm. 313.

Turner v. RobinsonENR 1 Sim. & St. 313.

Atkinson v. HanwayENR 1 cox, 360.

Davis v. ChanterENR 2 Phil. 545.

Faulkner v. DanielENR 3 Hare, 208.

Robinson v. BellENR 1 De G. & Sm. 630.

— Administration as litem — Demurrer for insufficiency —— Formal Defendants (33 G. O., 1867) — Funstions of court of Probate.

VoL. VII.] EQUITY SERIES. 525 JOHNSON v. HODGENS. Ch. App. 1873. Charging order (C. L. Proc. Act,1853)-Administration adlitem-Demurrer for insulkiency-Statutory representation (Chancery Act, 1867, s. 110)- May 7. April 28, 29. lila Formal Defendants (33 G. 0., 1867)-Functions of Court of Probate. 111 1863 J., a judgment creditor of T. W. H., obtained a charging order under the C. L. Proc. Act, 1853, upon his interest in a large sum of stock standing to the credit of a cause in which T. W. H.'s father T. H., and mother A. H., were Plaintiffs, and to the separate credit of A. H. In 1867, T. W. H. having died intestate, his widow M. A. H., in January, 1872, took out letters of administration " limited to proceedings for establishing the right of T. W. H. and those claiming under him to the said stock," consequent upon the decease in 1870 of A. H., who, under her marriage settlement, had had a life interest therein. The stock was, on A. H.'s death, also claimed by T. H. in his marital right, and by P. M. as her executrix. In February, 1872, J., treating M. A. IL as general administratrix of T. W. H., filed a bill against her alone for a transÂÂfer of the amount which sho'uld be found due to him on foot of his charging order. Having discovered from her answer the limited nature of her adminisÂÂtration, he amended his bill accordingly, and added T. H. and P. M. as formal Defendants, whereupon M. A. H. having demurred for want of equity, of privity, and of parties, and, ore tenus, for misjoinder of parties :-Held (reversÂÂing the order of the Vice-Chancellor), that the demurrer should be allowed. Per CHRISTIAN, L. J. A.-Semble, the provisions of the Chancery Act (1867), s. 110, were applicable to the case. When the ordinary Courts have decided that an administration is insufficient, it is the duty of the Court of Probate to supply the defect. APPEAL from an order of the Vice-Chancellor of the 8th of November, 1872, overruling with costs the Defendant's demurrer to the Plaintiff's amended bill (1). (1) The following is the judgment of the VICE-CHANCELLOR : The point of the demurrer in this case is, that the interest of the late Thomas Walker Hodgens in the fund which is the subject of the suit is not sufficiently represented by his limited administratrix. The several groundssuit is not one by a general creditor to be paid out of general assets, but by a person who has been constituted by the charging order obtained by him under the Statute a specific incumbrancer upon the fund mentioned in the bill, so THE IRISH REPORTS. [I. R. The original bill was filed on the 29th of. February, 1872, by John Henry Johnson, claiming to have obtained, on the 16th of NoÂÂvember, 1861, a judgment in the Court of Common Pleas, against T. W. Hodgens (since deceased), for the sum of £108 7s. lid., and, on the 8th of January, 1863, an order pursuant to the proÂÂvisions of the Common Law Procedure Amendment Act, charging with the payment of the said sum of £108 7s. 11d. for debt, and £37 5s. 2d. for costs, the interest of T. W. Hodgens in the sum of £20,765 2s. 9d. (partly stock and partly cash), standing in the books of the Governor and Company of the Bank of Ireland, to the credit of a cause in which Thomas Hodgens and Anne HodÂÂgens, otherwise Walker, his wife, were Plaintiffs, and Elizabeth far as it belonged to T. W. Hodgens. The bill does not pray for a general administration of the assets, but only for payment out of the funds so charged. I am therefore of opinion that it is not essential to have a general representaÂÂtive before the Court. An administraÂÂtion ad litem, or, as it is also termed, an administration for the purpose of substantiating and carrying on partiÂÂcular proceedings, is not confined to cases where the limited administrator is intended to be a promovent, and the more common case is where he is to be made Defendant in a suit to realize or administer a particular fund. It has been decided that a person appointed by this Court under the Statute in that behalf to represent the estate of a deÂÂceased person, whose position is analoÂÂgous to that of an administrator ad litem appointed by the Court of Pro bate, sufficiently represents the estate in cases where the estate represented is sought to be made liable. This was held in The Dean and Chapter of Ely v. Gayford (16 Beay. 561) in a suit for tithes, and again in The hint Stock Discount Co. v. Brown (L. R. 8 Eq. 376) in a bill filed against the Directors of a Company for breach of trust. The limited administrator has full power to the extent of the grant made to him, and the estate of the deceased is perÂÂfectly represented for all purposes to the extent of the authority conferred by the letters of administration, as stated by Wigram, V. C., in Faulkner v. Daniel (3 Hare, 208), and by Lord Cottenham in Davis v. Chanter (2 Ph. 551). The question, then, resolves itself into that of the extent of the authority as expressed by the grant. The terms in which the grant is here pleaded are not those usually found in such letters of administration, and posÂÂsibly are not the words in which the grant was made ; but I am not at liberty to look to the grant itself on this argument, and I must take the statement in the bill as correct. The words of it are " limited to proceedings for establishing the right of the said T. W. Hodgens and those claiming under him to the said stock." It would be a narrow construction to give VoL. VII.] EQUITY SERIES. Wheeler and Lydia Carr were Defendants, and to the separate credit of the said Anne Hodgens. By his original bill the PlainÂÂtiff prayed that an account might be taken of what was due for principal, interest, and costs on foot of the judgment and charging order ; that the amount which should be so found due might be declared well charged on the said funds ; that the Accountant-General of the Court should be ordered to transfer to the Plaintiff so much of the said funds as at the price of the day would be equivalent to the amount which should be so found due, together with his costs of suit ; and that the Plaintiff might have such further or other relief as the nature of the case might require ; and the Plaintiff made the Appellant Mary Anne Breslin, by her then name of Mary Anne Hodgens, the Defendant to the bill. to these words, to hold that they conÂÂferred authority only in a case where the administrator was proceeding to establish such right, and so very reÂÂstricted an authority would fall short of what I have already stated to be the usual operation of such grants. This suit is a proceeding to establish the right of T. W. Hodgens and of the Plaintiff, who claims under him, to the stock in Court; for before the PlainÂÂtiff's demand can be realized, he must establish that Thomas W. Hodgens was entitled to an adequate interest therein. With that view, the husband and the personal representative of Anne HodÂÂgens, to whose credit the fund is standing, are made parties. If the proceedings mentioned were to be reÂÂstricted to acts of the administratrix, the terms of the grant would be satisÂÂfied by holding the expression to apply to steps taken by her to defend the fund against an adverse claim. It is not to he forgotten that the Defendant who raises this objection is herself a person entitled in the first instance to a grant of general administration, and that, as appears by the bill, the taking a limited grant was optional with her, and it was taken for her own conÂÂvenience. A general administration could not be granted without recalling the grant to the Defendant; and during its subsistence the subject of it must be excluded from any grant to anoÂÂther party, which must only be one of a caterorum administration. I am therefore of opinion that the limited administratrix sufficiently represents the interest of T. W...