Keogh v Keogh

• Jurisdiction: Ireland
• Judgment Date: 05 March 1874
• Date: 05 March 1874
• Court: Rolls Court (Ireland)

Rolls.

KEOGH

and

KEOGH.

Webber v. StanleyENR 16 C. B. N. S. 698.

Morrell v. FisherENR 4 Ex. 591.

Slingsby v. GraingerENR 7 H. L. C. 273.

West v. LawdayENR 11 H. L. C. 375.

Roe v. VernonENR 5 East, 51.

Doe v. ParkinENR 5 Taun. 321.

Pedley v. DoddsELR L. R. 2 Eq. 819.

Boyle v. MulhollandUNK 10 Ir. C. L. R. 150.

Richards v. RichardENR Johns. 754.

Earl of Clarendon v. Barham1 Y. & Col. C. C. 688.

Forbes v. Moffatt 18 Ves. 384.

Davis v. BarrettENR14 Beav. 542.

Purcell v. PurcellUNK 5 Ir. Ch. Rep. 502.

Gunter v. GunterENR 23 Beav. 571.

Swinfen v. SwinfenENR 29 Beav. 304.

Grenn v. PledgerENR 3 Hare, 638.

Hardwick v. HardwickELR L. R. 16 Eq. 168.

Roe v. LidwellUNKUNK 9 Ir. C. L. R. 184; 11 Ir. C. L. R. 320.

Bradford v. Dublin and Kingstown Railway CompanyUNK 7 Ir. C. L. R. 57, 624.

Harris v. GreathedENR 8 East, 91.

Vicars Choral of Litchfield v. Eyres Sir W. Jones, 435.

Ker v. Ker Ir. R. 4 Eq. 15.

Acheson's Estate Ir. R. 3 Eq. 105.

Wigsell v. Wigsell 2 S. & St. 364.

Horton v. SmithENR 4 K. & J. 624.

Sawbey v. SwabeyENR 15 Sim. 106.

Hood v. PhillipsENR 3 Beav. 513.

Tyrwhitt v. TyrwhittENR 32 Beav. 244.

Slingsley v. GraingerENR 7 H. L. C. 273.

Goodtitle v. SouthernENR 1 M. & S. 299.

Gray v. PearsonENR 6 H. L. C. 106.

Abbot v. MiddletonENR 7 H. L. C. 69, 115.

West v. Lawday.ENR 11 H. L. C. 375.

Doe v. GreathedENR 8 East. 91.

Forbes v. Moffatt 18 Ves. 390.

Grice v. ShawENR 10 Hare, 76.

Swinfen v. SwinfenENR 29 Beav. 199.

Green v. PledgerENR 3 Hare, 165.

Will — Construction — Flasa demonstratio — Payment of charges by tenants for life or in tail or in fee — Merger in inheritance —— Relief between co-Dofendants — When allowed.

Vol.. VIII.] EQUITY SERIES. 179 KEOGH ° v KEOGH. Rolls. Will-Construction-Falsa demonstratio-Payment of charges by tenants for 1873. life or in tail or in fee-.Merger in inheritance-Rules of equity as to-. ;Nov. 27-29. Relief between co-Defendants-When allowed. Dec. 3. 1. A testator-seised in fee of a number of townlands situate in several baroÂÂÂnies and parishes in the county of R., four of them being in the parishes of T. and A. and barony of B.-devised all his right, title, and interest in the lands he possessed in the county of R., and situate and being in the half barony of B., parishes of Killukin and Killumod, also in the parishes of Kilglass and Kil louston, to his five stepbrothers, not subject to charges which he had paid off; and, after giving some legacies, appointed his cousin his executor and residuÂÂÂary legatee. There was no half barony of B. or parish of Killouston in the county of R., but there was a barony of B. and parish of Kiltrustan :-Held, that the lands in the parishes of T. and A. did not pass by the will, but descended to the heir-at-law, and that all the other lands, including those in the parish of Kiltrustan, were devised. 2. The testator, being originally tenant in tail subject to charges secured by a term, paid off several of the charges, for some of which he took assignments to a trustee for himself, and for others took receipts, with an undertaking to assign endorsed. He executed a disentailing deed of all the lands of which he was tenant in tail, for the purpose of getting payment out of Court of the price of part of the settled estate taken by a railway company, and thereby acquired the fee subject to the term, and afterwards paid off other charges, taking simple receipts for the money. There were other charges to a considerable amount on the estate, of equal priority with and puisne to the charges paid off, which renÂÂÂdered it for the interest of the owner that the charges he paid off should not merge, and by his will he exonerated his devised estates from the charges :ÂÂÂHeld, that all the charges were subsisting on the undevised estates, and passed by the will to his executor and residuary legatee. 3. The devisees and heiress-at-law of the testator were made parties DefendÂÂÂants in a suit to raise the charges :-Held, no objection to the suit that it inÂÂÂvolved a decision on the construction of the will between the co-Defendants. BILL, by Cornelius Alexander Keogh, the executor and residuary legatee of Thomas Dunne Keogh, praying that the moneys advanced by the testator in paying the charges affecting all or any of the lands and hereditaments comprised in a settlement of the 11th of September, 1812, and the term of 500 years thereby oreated, N2 THE IRISH REPORTS. [i. said principal moneys amounting in the whole to the sum of £6757 7s. 11d., -with interest at £6 per cent. per annum from the 5th of February, 1872, should be declared to be well charged upon the townlands of Shonekeeragh, Cuiltyconeen, and Ardchamoyle, situate in the parish of Tumnagh and barony of Boyle in the county of Roscommon, and the townland of Ardglasse, situate in the parish of Ardcarne and barony of Boyle all in the county of Roscommon, as the sums so paid were charged upon under the settlement, and the several deeds and instruments executing the powers therein contained, and that the same are now payable to the Plaintiff as the executor of T. D. Keogh ; an account of the sums due on foot of the charges : a sale of the lands charged ; a receiver, and, if necessary, an administration of the real and perÂÂÂsonal estate of T. D. Keogh. The Defendants to the bill were the devisees under the will, and Mary Keogh, the heiress-at-law of T. D. Keogh, and persons having charges on the lands. The provisions of the settlement of the 11th of September, 1812, the circumstances of the estate and attending the payment of the charges, which were very complicated, are summarised and stated in the judgment. The defences relied on in the answer of the Defendants, the devisees in the will of Thomas Keogh, were, 1st, that all the tesÂÂÂtator's estates in the county of Roscommon, passed by the will exonerated from the charges ; 2ndly, merger of the charges for the benefit of the inheritance ; 3rdly, that the suit was unsustainable for want of privity between the Plaintiff and the Defendants ; that it was a mere ejectment bill, and sought to raise an issue between co-Defendants, which could only be raised by Mary Keogh, the heiress-at-law, in an action of ejectment in a court of law. The Defendant Mary Keogh, by her answer, also relied on the 2nd and 3rd defences set up by the other Defendants, but subÂÂÂmitted that the four townlands stated in the prayer of the bill did not pass by the will. The Solicitor-General, Mr. May, Q. C., Mr. Dames, Q. C., and Mr. Robertson, for the Plaintiffs. The four townlands in question did not pass by the will : Web-- VOL. VIII.] EQUITY SERIES. 181 ber v. Stanley (1) ; Bacon's Maxims, 13, p. 76 ; Morrell v. Fisher (2) ; Rolls. Slingsby v. Grainger (3) ; West v. Lawday (4) ; Shepherd's Touch- 1873. stone, 99, 249 ; Roe v. Vernon (5) ; Doe v. Parkin (6) ; Pedley KEOGH Dodds (7); Boyle v. Mulholland (8). 2ndly. The circumstances of KEOGH. the estate, the assignment of the charges, the statements of the tesÂÂÂtator as proved by the parol evidence, and the exoneration of the undevised estates from the charges, show the testator's intenÂÂÂtion to keep the charges on foot for his own benefit : Richards v. Richard (9) ; Earl of Clarendon v. Barham (10) ; Forbes v.-MofÂÂÂfatt (11); Davis v. Barrett (12) ; Purcell v. Purcell (13) ; Gunter v. Gunter (14) ; Swin fen v. Swinfen (15). 3rdly, as to the form of the suit, they relied on Green v. Pledger (16). The Attorney-General, Mr. 0' _Hagan, Q. C., Mr. P. F. White, Q. C., and Mr. P. Keogh, for the devisees, as to the construction of the will, cited Hardwick v. Hardwick (17) ; Bacon's Maxims, 13, p. 76 ; Roe v. Lidwell (18) ; Bradford v. Dublin and Kingstown Railway Company (19) ; Doe d. Harris v. Greathed (20) ; Vicars Choral of Litchfield v. Eyres (21). As to the merger of the charges, they relied on the legal presumption-the charges having been paid by the testator when he was tenant in tail or in fee-that it was for the benefit of the inheritance ; the parol evidence, which showed a change of intention, whatever his intention originally was; the disentailing deed, and the exoneration of the devised estates from the charges, without directing them to be apporÂÂÂtioned : Ker v. Ker (22). As to the frame of the suit, they referred to Acheson's Estate (23). (1) 16 C. B. N. S. 698. (2) 4 Ex. 591. (3) 7 H. L. C. 273. (4) 11 H. L. C. 375. (5) .5 East, 51. (6) 5 Taun. 321. (7) L. R. 2 Eq. 819. (8) 10 Ir. C. L. R. 150. (9) Johns. 754. (10) 1 Y. & Col. C. C. 688. (11) 18 Ves. 384. (12) 14 Beay. 542. (13) 5 Ir. Ch. Rep. 502. (14) 23 Beay. 571. (15) 29 Beay. 304. (16) 3 Hare, 638.. (17) L. It. 16 Eq. 168. (18) 9 Ir. C. L. R. 184 ; 11 Ir. C.. L. R. 320. (19) 7 Ir. C. L. R. 57, 624.. (20) 8 East, 91. (21) Sir W. Jones, 435.. (22) Ir. R. 4 Eq. 15. (23) Ir. R. 3 Eq. 105. THE IRISH REPORTS. [I. R. Mr. S. Walker, Q. C., and Mr. Naish, for .the heiress-at-law, supported the Plaintiff's contention as to the construction of the will. As to the merger of the charges, they eitedSwinfen v. Swill-fen (1) ; Wigsell v. Wigsell (2) ; Horton v. Smith (3) ; Swabey v. Swabey (4) ; Hood v. Phillips (5) ; Tyrwhitt v. Tyrwhitt (6). THE MASTER OF THE ROLLS : The bill in this cause has been filed by Mr. Cornelius Alexander Keogh, who is the executor and residuary legatee of the late Thomas Dunne Keogh, who died on the 5th of February, 1872, praying that several sums of money which he insists are charges on certain lands situate in the parishes of Tumnagh and Ardcarne, and barony of Boyle, in the county of Roscommon, should be raised thereout, as part of the personal estate of the said Thomas Dunne Keogh, and paid to him as the executor of the said Thomas Dunne Keogh. The facts and circumstances upon which the right to the relief is founded are as follows :- By a settlement of the 11th of...