Kelly v Lennon

• Jurisdiction: Ireland
• Judgment Date: 29 May 1844
• Date: 29 May 1844
• Court: Court of Chancery (Ireland)

Chancery.

KELLY

and

LENNON.

Smith v. Clay 3 Br. C. C. 638, note.

Perry v. Phelips 17 Ves. 173.

Lytton v. Lytton 4 Br. C. C. 441.

Perry v. Phelips Ubi supra.

Smith v. Clay Ubi supra.

Lytton v. Lytton Uni supra.

Hamilton v. HoughtonENR 2 Bligh, 169.

Perry v. Phelips 17 Ves. 177.

98 CASES IN EQUITY. 1g44: Chaxcery. May 28, 29. M. K. devised a fee-simple esÂÂtate to his eldÂÂest son F.K. in tail male, with a power to charge 200 each for his daughters ; remainder to W. K. his seÂÂcond son, in tail male : and left legacies of 100 each to his ten younger children, but did not charge them on the estate. On the marriage of F. K. a porÂÂtion of his lady's fortune was applied in discharge of these legacies. F. K. -died without issue male, but lea rÂÂing two daughÂÂters, who enÂÂtered into posÂÂsession, claimÂÂing under a prior will by which F. K. was made tenant in fee. An ejectment was brought by W. K. ; there was a reference to arbitration, a bill and cross KELLY v. LENNON. (Chancery.) MICHAEL KELLY, being seized in fee of the lands of Cloncannon in the county of Galway, made his will duly attested to pass real estates, bearing date the 1st of June 1782, by which, after bequeathing to William Kelly and his ten other younger children the sum of D 00 each, with interest at 6 per cent. from his death, he devised to Rose Kelly, his wife, the dwelling-house, together with sixty acres of the said lands of Cloncannon, for thirty-one years, provided she lived so long, in lieu of dower and thirds ; and in case she should marry, he declared his will to be that, notwithstanding the aforesaid bequest, his eldest son who should be then living should have it in his power, if he requested it, to possess himself of the said dwelling-house and sixty acres of land thereby devised, provided he should first secure to Rose Kelly an annuity of 45 ; and in case she should not choose to live in the house and hold all said sixty acres of land in her own hands, the eldest son then living who should attain the age of twenty-one should, on her quitting said house and lands, secure to her 45 per annum during her natural life. The testator then devised to Edward Rochfort all his real estate of Cloncannon, subject to the payment of all his just debts and all encumÂÂbrances affecting the same, in trust to permit his eldest son Ferdinand Kelly to possess and enjoy the same during his natural life; with reÂÂmainder td his heirs male lawfully begotten; with power to Ferdinand to charge the estate with a jointure of 45 a-year for any wife he should marry, and 200 for each of his younger children, so that the same should not amount to more than 1000; and for want of such heirs male in his said son Ferdinand lawfully begotten, to permit and suffer his second son William Kelly, and his heirs male lawfully begotten, to possess and enjoy the same with the like restrictions ; and for want of such heirs male of William, to permit and suffer his third and fourth sons therein named, bill, and a decree in 1816 establishing the later will; and declaring that whatever the Master should find had been paid by F. K. in exoneration of the estate should be charged on it. This decree was not enrolled. In March 1820 the Master found that certain sums had been advanced by F. K. in payment of the legacies to his brothers, and in exoneraÂÂtion of the lands, and among others a sum of 100 paid to W. K., as one of the younger children. There was a final decree in June 1831, by which the report was confirmed, and a sale ordered for payment of the said sums. In February 1840 a hill was filed to reverse the proceedings in the cause and the decrees of 1816 and 1831. Held, that as the decrees did not declare the legacies a charge on the lands, and as it did not appear on what the Master's report was founded, there was no error apparent on the face of the record ; and that as to W. K.'s 100, the decree was right. Difference between a bill of review, and a bill in the nature of a bill of review, and doctrine of the Court respecting them. Time for bringing a, bill of review. CASES IN EQUITY. 99 and their heirs male, to possess and enjoy the same; and for want of issue male in his said sons, then to the use of his fifth son Thomas and his right heirs for ever. Prior to the execution of this will, on the 19th of May 1782, the testator made a will devising to his eldest son Ferdinand all his real estates and personal effects, subject to his debts and legacies, and to the sum of 100 for each of his eleven children. The testator died in 1782, leaving Rose Kelly his widow, and FerdiÂÂnand Kelly his eldest son, William Kelly his second son, and ten other children surviving him. • Ferdinand Kelly being a minor at the time of the death of his father, the testator's widow, Rose Kelly, entered into possession of the dwelling-house and sixty acres of land, as well as the remaining part of the estate, and continued in possession until Ferdinand arrived at full age, when she delivered up possession to him on his securing to her an annuity of 45. Ferdinand Kelly, on his marriage with Mary Walsh, by a settlement dated the 21st of August 1788, and made between Ferdinand Kelly of the first part, Richard Walsh and Mary his daughter of the second part, William Kelly of Liskelly and Michael Ward (who were two of the witnesses to the will of the 1st of June 1782) and Denis Keogh, trustees, of the third part, after reciting the intended marriage, and that the sum of 1000 had been secured by the joint bond of the said Richard Walsh and Patrick Walsh his son to the trustees, in consideration thereof and of ten shillings, conveyed the lands of Cloncannon to the said trustees and the survivor of them and the heirs of such survivor, to the use of himself for life, with power to him to charge them if he should think proper with any sum not exceeding 400, and subject to a jointure of 45 to Rose Kelly under the will of Michael Kelly, and to the sum of 1000, the remainder of the sum due to his (Ferdinand's) brothers. and sisters ; with remainder to the trustees to secure a jointure to his intended wife ; with remainder to the first and other sons of the intended marriage in tail: and upon further trust that the said trustees and the survivor of them should, within a year after the death of Ferdinand, by sale or mortgage of the lands, raise 2000 for daughters, if there should be no male issue, and portions for the younger children of the marriage; and the trustees covenanted with Ferdinand and his heirs that they would regularly call in the interest of the 1000 secured by the bond of Richard and Patrick Walsh, and pay the same, share and" share alike, among Ferdinand's brothers and sisters, who were entitled to portions under his father's will. There was issue of this marriage two daughters, viz., Rose Kelly (afterwards the wife of Charles Lennon) and Maryanne Kelly. Ferdinand Kelly died in 1791, leaving his wife Mary and his two 100 CASES IN EQUITY. daughters surviving him ; and the daughters entered into possession of the lands, William Kelly being then abroad. On William's return in 1792, an ejectment was brought by him on his own demise, and that of Edward Rochfort, the trustee of the will of Michael Kelly, for recovery of the possession of the lands. Defence was taken to this ejectment, and a bill was filed in Chancery by Mary Kelly, as guardian and next friend of Rose and Maryanne, on the 7th of February 1793, against William Kelly, Rose Kelly and others, for the purpose among others of having the will brought in and deposited with the proper officer ; and to restrain William Kelly, Michael Ward and Denis Keogh, the trustees in the settlement of the 21st of August 1788, from proceeding to call in the amount of the bond of Richard and Patrick Walsh. William Kelly answered the bill. It was in the progress of the cause agreed that the will should be lodged with the Register of the Judge of Assize, to be produced on the trial of the ejectment, which was accordingly done, and the record was brought down for trial at the Galway Spring Assizes for 1793, when the Jury having disagreed, a Juror was withdrawn. A second trial was had at the Summer Assizes 1793, with the same result, whereupon the Judge recommended that the claims of the different parties should be amicably adjusted by the arbitration of mutual friends. Accordingly arbitrators were chosen, and they made their award, in pursuance of which, deeds of lease and release, bearing date the 28th and 29th of March 1794, were made between William Kelly and Edward Rochfort of the first part ; Mary Kelly administratrix of Ferdinand Kelly, on behalf of herself and the minors, Rose and Maryanne, her daughters and co-heiresses of Ferdinand Kelly, of the second part ; the Rev. Armstrong Kelly and Garrett O'Moore, of the third part ; James Ridge and Walter Macale of the fourth part, and William Kelly, Michael Kelly and Denis Keogh, trustees of the settlement of the 21st of August 1788, of the fifth part ; reciting the award, and that 300, part of the 1000 secured by the bond of Richard and Patrick Walsh, had been paid amongst the children of Michael Kelly (the testator), and that the balance of 700 remained unpaid ; and that in pursuance of the agreement, and the direcÂÂtion of the referees, the lands of Cloncannon had been that day relinquished and given up to William Kelly ;-it was witnessed that, for the purpose of carrying the agreement and direction of the referees into complete execution, and of securing the several provisions therein to the several persons for whose benefit the same were provided, the said William Kelly and Edward Rochfort, with the consent of the said Mary Kelly, on behalf of herself and her sail children, testified by her being an...