Lees v Lees

• Jurisdiction: Ireland
• Judgment Date: 12 June 1871
• Date: 12 June 1871
• Court: Chancery Division (Ireland)

V. C. Court.

LEES

and

LEES.

Minchin v. Minchin Ante, pp. 178. 258.

Re Narcott's EstateUNK 14 Ir. Ch. Rep. 315.

Alloway v. Alloway 4 Dr. & W. 380, 390.

Byam v. ByamENR 19 Beav. 58.

Smith v. Lord Camelford 2 Ves. Jun. 698.

Routledge v. Dorril Ibid. 356.

Wilson v. Piggott 2 Ves. Jun. 351.

Poulson v. WellingtonENR 2 P. Wms. 433.

Re Morgan's EstateUNK 7 Ir. Ch. Rep. 18.

Carver v. RichardsENR 27 Beav. 488.

Bruce v. BruceELR L. R. 11 Eq. 371.

M'Guire v. Scully Beatty, 370.

Walmsley v. Vaughan 1 De G. & Jo. 114, 126.

Noblett v. LitchfieldUNK 7 Ir. Ch. Rep. 575.

Heaviland v. Saumarez 14 W. R. 118.

Higginson v. BarnebyENR 2 Sim. & St. 516.

Hynes v. Redington 7 Ir. Eq. R. 405, 412.

Davenport v. Davenport 1 Hem. & Mill. 775.

Symonds v. Wilkes 11 Jur. N. S. 659.

Glenorchy v. Bosville 1 Wh. & Tud. L. C. 1.

Andrews EmmotENR 2 Bro. C. C. 297.

Denn v. RoakeENRENR 10 Moore, 142; and, on Appeal, 5 B. & C. 731; 1 Dow. & Cl. 450.

Hunloke v. GellENR 1 Russ. & My. 515.

Colson's Trusts 2 W. R, 111.

Swift v. SwiftENR 8 Sim. 168.

Sibley v. Perry 7 Ves. 522.

Marshall v. BakerENR 31 Beav. 608.

Bryden v. WillettELR L. R. 7 Eq. 472.

Bruen v. OsborneENR 11 Sim. 132.

Gooch v. GoochENR 14 Beav. 581.

Dixon's Trusts I. R. 4 Eq. 1.

Eden v. Smyth 5 Ves. 345.

Hyde v. NeateENR 15 Sim. 554.

Pope v. PopeENR 14 Beav. 591.

Fairfield v. BushellENR 32 Beav. 158.

Leigh v. Norbury 13 Ves. 340.

Ross v. RossENR 20 Beav. 648.

Carter v. BentallENR 2 Beav. 551.

Rhodes v. RhodesENR 27 Beav. 413.

Murphy v. Segrave 6 Ir. Ch. R. 417.

Appointment under Power — Recital in Will — Marriage Articles — Hotchpot Clause — "Issue" — Notice — practice.

" No. 2. An account of the intestate's debts. Ch. App. " No. 3. An account of the intestate's funeral expenses. 1871. " No. 4. An inquiry what parts (if any) of the intestate's personal estate CARROLL are outstanding or undisposed of ; And it is ordered that the said intestate's V. personal estate be applied in payment of his debts and funeral expenses in a HARGRAVE. due course of administration ; and it is ordered that the following further accounts and inquiries be taken and made-that is to say : " No. 5. An inquiry what real estate the intestate was seised of or entitled to at the time of his death. " No. 6. An account of the rents and profits of the intestate's real estate received by the Defendant, Abraham Hargrave, as heir-at-law of the intestate, or by any person or persons by his order or on. his behalf. "No. 7. An inquiry what incu.mbrances (if any) affect the intestate's real estate, or any and what parts thereof. "And it is ordered that this matter be remitted to the Right Honourable the Vice-Chancellor, to proceed thereon as shall be just and consistent with this order. And it is declared that the Plaintiffs are entitled to their costs of this appeal, together with their demand, as part of their costs in this cause; and it is ordered that the deposit of £10 lodged with the Registrar be returned to the Appellant Janetta Harrison Carroll, otherwise Hargrave, and Abraham Addison Hargrave, or to Messrs. Thomas and A. K. Exham, their solicitors, or either of them." LEES v. LEES. V. C. Court. Appointment under Power-Recital in Will-Marriage Articles-Hotehpot 1871. Clause-" Issue"-Notice-Practice. May 26. June 1, 2, 12. 1. The recital, in an instrument capable of operating as an execution of a power, of a past transaction, which would by itself have been inadequate, is a sufficient execution of such power. 2. The Court will not insert a hotchpot clause in executory marriage artiÂÂÂcles in the absence of any words therein indicating the intention of the parties to introduce such clause. 3. Where, in such articles, there is no limitation over in default of appointÂÂÂment among the " issue" of the marriage, the word " issue" is confined to the children of the marriage ; and in a proceeding under the Trustee Relief Act to have the trust funds distributed, it is sufficient to serve notice on one of each class of the remoter issue on behalf of the rest. Colson's Trusts (2 W. R. 111) followed. PETITLON, under the Trustee Relief Act, to carry out the trusts of marriage articles, dated the 30th July, 1811, executed in con 550 THE IRISH REPORTS. [1. R. V. C. Court. templation of the marriage of Thomas Orde Lees and Charitie 1871. Armit, and BILL filed to carry out the trusts of the will of the LEES said T. 0. Lees, dated the 17th May, 1864: and the nature of the v. case rendered it expedient that the Petition and Bill should be LEES. disposed of together : the questions for consideration being-1. Whether a transfer of stock made by the testator in his lifetime amounted to an appointment to one of his daughters of part of I the trust funds comprised in the articles of marriage ; 2. Whether I his will amounted to a general appointment of the trust funds ; 3. Whether the Court was at liberty to insert a hotchpot clause in the articles ; 4. Whether the word " issue " in the articles was conÂÂÂfined to immediate issue; and, 5. Whether the will operated as a release of a bond debt of £555 due to the testator. There was also an incidental question of practice, as to what classes and number of the " issue " should be served with notice of the Petition matter. By the articles it was agreed that two sums of £6000 and £3000 should be "settled as hereafter mentioned, and subject to the several uses, trusts, intents, and purposes hereafter mentioned and expressed, and declared of and concerning the same, and none other ;" and the two sums were vested in trustees upon trust for T. 0. Lees, during the joint lives of himself and his wife, with an ultiÂÂÂmate trust, " to the use and behoof of the issue of the intended marÂÂÂriage (if more than one)," as T. 0. Lees should, by writing or will, appoint, " but, if only one child, to the use and behoof of such only child." There was no life interest limited to T. 0. Lees in case he survived his wife, and no trust for the children in default of appointment, both of which events happened. The articles conÂÂÂcluded with the following provision :-" And it is further agreed that all such apt writing...