Kelly v O'Connor

• Jurisdiction: Ireland
• Judge: Barton J.
• Judgment Date: 16 January 1917
• Court: Chancery Division (Ireland)
• Docket Number: (1915. No. 146.)
• Date: 16 January 1917

Kelly

and

O'Connor.

Barton J.

(1915. No. 146.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1917.

Administration — Will — Costs of unsuccessful action to obtain Probate — Deficiency of Assets — Donatio mortis causâ — “Testamentary expenses.”

Two persons, who were named as executors in what purported to be the will of the deceased, on the advice of senior counsel, instituted an action to obtain a grant of probate of the alleged will. The jury found against the alleged will, which was condemned, but the executors were declared entitled to their costs out of the assets.

Subsequently to the trial of the probate action a suit was brought for the administration of the estate of the deceased, which mainly consisted of a sum of £923 standing on deposit receipt. These moneys were adjudged by Barton J. and by the Court of Appeal to have been the subject-matter of a good donatio mortis causa to R. Nearly all the costs incurred by the executors in the Probate action had been incurred before R. put forward his claim to the ownership of the deposit receipt. There was a deficiency of assets.

Held, that the moneys on deposit receipt were not assets, and were not liable for the payment of any of the costs of the probate action.

Michael D'Arcie, of Fethard, Co. Tipperary, died on June 2nd, 1911, having previously executed a document purporting to be his last will. The executors therein named, William Toppin and James Kenrick, on the advice of senior counsel, instituted an action to obtain probate. The alleged will was condemned at the trial, and by Order, dated 29th of October, 1913, the judge pronounced against the force and validity of the alleged last will of the deceased, but declared the plaintiffs entitled to have their costs out of the assets.

A suit was afterwards instituted for the administration of the personal estate of Michael D'Arcie. In the course of that suit William Toppin and James Kenrick applied to the Court for an order that the defendant Richard Maher should pay to the applicants their costs of the action brought by them to establish the will of the deceased Michael D'Arcie, or for an order that the said costs should be paid out of the money represented by a deposit receipt for £923, which had been declared to have been the subject of a good donatio mortis causa by the deceased to Richard Maher. The claim of ownership had not been put forward by Richard Maher until nearly all the costs of the probate action had been incurred.

Wylie K.C. and Ronayne, for the applicants:—

1. These costs are testamentary expenses, that is, expenses incident to the proper performance of the duty of an executor: Sharp v. Lush (1); Brown v. Burdett (2); In re Elementary Education Acts, 1870 and 1873 (3). In In re Prince,...