Lefroy v Flood

• Jurisdiction: Ireland
• Judgment Date: 10 May 1854
• Court: Court of Chancery (Ireland)
• Date: 10 May 1854

Chancery.

LEFROY

and

FLOOD.

Green v. MarsdenENR 1 Drew, 646.

Malim v. Keighly 2 Ves. jun. 355.

William v. WilliamsENR 1 Sim., N. S., 358; vide p. 368.

Briggs v. Penny 3 Mac. & Gor. 546; vide p. 354.

Meredith v. HeneageENR 1 Sim. 542.

Knight v. KnightENR 3 Beav. 148; vide p. 173.

Knight v. BoughtonENR 11 Cl. & Fin. 513.

Tibbitts v. TibbittsENR 19 Ves. 656; S. C., Jac. 317.

Kingsman v. Kingsman 2 Ver. 559.

CHANCERY REPORTS, BEING A SERIES OF CASES ARGUED AND DETERMINED IN THE HIGH COURT OF CHANCERY AND ROLLS COURT. 1853. LEFROY v. FLOOD. Nov. 7, 9. 1854. (Chancery). May 10. Tuts cause came on to be heard on further directions and exceptions F. was seised of real estate, to the Master's report, dated 26th of May 1853. The decree to subject to a mortgage of account was made on the 14th day of November 1851. By it the £4000, over which J., F.'s Master was directed to take an account of the personal estate of daughter, had a power of Frances Jessop, deceased, and of the real and personal estate of appointment amonst r the late Sir Frederick Flood, Baronet, and to report specially childre en he . F. v yas also s- the rights of the defendant Frederick Solly Flood and his children. sensed of larpo ge personal es tate, and by his will desired that all his debts, which he stated to be very trifling, should be paid out of his assets by his executrix. He then bequeathed all his property real and personal to J., and earnestly recommended that if S., the son of J., should, during his future life, adopt and follow such line of conduct as should merit her full approbation, she should appoint the said sum of £4000 to him, and should add the sum of £16,000 from his (the testator's) personal property, also all his landed property ; all which he wished her to grant to S., by deed or by her will; conditionally, and in case he should conduct himself so as to merit and possess her full approbation, and he pursued her advice, but not otherwise ; but if he should misconduct himself, and not merit her entire approbation, and not obey her as his mother and guardian, she might dispose of all the said properties in such manner and to whom she thought fit.-Held, that upon the true construction of the whole will, which was very lengthy and informal, the words of recommendation did not create an absolute trust in favour of S. The rale with respect to precatory words in a will is, that there must be a comÂplete withdrawal of discretionary power from the legatees, or there is no trust created. Held also, that the testator intended the sum of £4000 to be continued on the security of his estate, and not to be paid off out of the personalty. 2 CHANCERY REPORTS. The facts of the case were as follows :-By indenture of marÂriage settlement, bearing date the 16th day of May 1769, and made between John Flood, of the first part, Sir Frederick Flood, of the" second part, Edward Donovan, of the third part, Sir Henry CavenÂdish and Frances Cavendish his daughter, of the fourth part, and John Viscount Clanwilliam, Henry Cavendish, the Honorable and Rev. Maurice Crosbie and Henry Flood, of the fifth part ; the sum of £13,500, of the late Irish currency, was vested in the parties thereto of the fifth part, upon trust, after the decease of John Flood and Sir Frederick Flood, to distribute the same amongst the children of the then intended marriage of Sir Frederick Flood and Frances Cavendish, as Sir Frederick Flood should by deed or will appoint ; in default of appointment, for the said children equally, with powers of investment of the said sum. Sir Frederick Flood married Frances Cavendish. In 1791, Sir Frederick Flood mortÂgaged certain lands in the county of Wexford, called the Slaney Hall estate, to the trustees of his setlement, to secure the sum of £4000, part of the said sum of £13,500. Frances Jessop was the only child of Sir Frederick Flood who lived to take any interest in the said sum of £13,500. On the marriage of the said Frances Jessop with Richard Solly (her first husband, and the father of the defendant Frederick Solly Flood), the sum of £6000, part of the said sum of £13,500, was settled upon the said Richard Solly and Frances his intended wife, for their successive lives, with remainder to their children as they should by deed jointly appoint, and in default of joint appointÂment, as the survivor should by deed or will appoint. Richard Solly died, leaving the said Frances Jessop his widow, and three children, the defendant Frederick Solly Flood and F. E. Solly and Jane C. Solly, him surviving. Frances the widow afterÂwards married John H. Jessop, and, on the occasion of that marÂriage, settled all her property, including her contingent interest in remainder in the residue of the said sum of £13,500, upon trust, for the said Frederick Solly Flood, F. E. Solly and Jane C. Solly, as she should by deed or will appoint ; in default of appointment, to CHANCERY REPORTS. 3 her separate use for life, with remainder to the said Frederick Solly Flood, F. E. Solly and Jane C. Solly, equally. The whole of the said sum of £13,500, save the said sum of £4000, secured by the said mortgage, was appointed by the said Frances Jessop to and amongst the said F. E. Solly and Jane C. Solly. Sir Frederick Flood made his will, dated the 27th of August 1823, which was, so far as material to the question raised in this suit, in the words and figures following :-" I, Sir Frederick Flood, make and publish this my last will and testament, all in my own handwriting, in my perfect health and understanding, mind and meÂmory, thanks to Almighty God for the same, and for all his mercies and favours to me. And it was his will and pleasure to deprive me of three sons, and of the best of wives, since which I have never been so happy as I was before-yet I feel grateful for his sparing to me, in his goodness and mercy, my only daughter, who I conÂsider sensible, accomplished and gifted with uncommon talents, and always dutiful and affectionate; I therefore make her the principal object of my confidence and care in this my will. First, I desire that all my just debts (which are very trifling) may be paid out of my assets, by my executrix hereinafter named." The testator then devised and bequeathed his property real and personal to trusÂtess, gave several legacies, and then proceeded :-" I would leave legacies to some other relations, if they were not so numerous, and I should be at a loss to distinguish, and that it would produce jeaÂlousies; and confiding that my daughter and executrix will be kind and attentive to such as she...