Leonard v Kellett

• Jurisdiction: Ireland
• Judgment Date: 11 May 1891
• Date: 11 May 1891
• Docket Number: (1889. No. 11, 632.)
• Court: Chancery Division (Ireland)

Chancery Division.

(1889. No. 11, 632.)

LEONARD

and

KELLETT.

Tipping v. PowerUNK 1 Ha. 405.

Tuckley v. ThompsonENR 1 J. & H. 126.

Pinchard v. FellowsELR L. R. 17 Eq. 421.

Mason v. Bogg 2 May. & Cr. 443.

In re Marine Mansions CompanyELR L.R. 4 Eq. 601.

Berry v. HebblethwaiteENR 4 K & J.80.

Pinchard v. FellowsELR L.R. 17 Eq. 421.

Armstrong v. StorerENR 14 Beav. 535.

Macrae v. Ellerton 6 W. R.851.

Walter v. Stanton 10 W.R.570.

Armstrong v. StorerENR 14 Beav. 535.

Tuckley v. ThompsonENR 1 J. & H. 126.

The Earl of ChesterfiledENR 21 Beav. 426.

Hepworth v. HeslopENR 3 Beav. 485.

White v. GudgeonENR 30 Beav. 545.

Dighton v. WithersENR 31 Beav. 423.

Ward v. MackinlayUNK 2 D. J. & S. 358.

Spensley v. HarrisonELR L. R.15 Eq. 16.

Wade v. Ward 4 Dr. 602.

In re Marine Mansions CompanyELR L. R. 4 Eq. 601.

Cutfield v. RichardsENR 26 Beav. 241.

Cook v. HartELR L. R. 12 Eq.459.

Cutfield v. RichardsENR 26 Beav. 241.

Wade v. Ward 4 Dr. 602.

Tuckley v. ThompsonENR 1 J. & H. 126.

Pinchard v. FellowsELR L. R. 17 Eq. 421.

Spensley v. HarrisonELR L. R. 15 Eq. 16.

Mason v. BoggENR 2 My. & Cr. 443.

Costs — Suit by mortgagee for administration — Deficient estate — Executor's costs — Priority.

.3.f. B. is not mentioned in the memorial. No doubt it was not omitted 1891. intentionally ; but the result is that of the two operative parts, or MACNAMARA I may say, of the two deeds, of which this instrument consists, v. DARCY. one is registered and the other is not. I am of opinion, therefore, the claim to the 6 per cent. interest cannot have priority over the subsequent, but duly registered, charge of the bank. It is not, of course, necessary to set out the whole of a deed in the memorial. It would have been enough if Martin Darcy had been put in as a conveying party, and the charge by him stated. As the matter stands a portion of the deed is deliberately registered, and a portion, so far as it is the act and deed of Martin Darcy, is left unregistered. This decision is, I think, in accordance with what the Court of Appeal held in French's Estate (1), and with what I myself intended to decide in Butler v. Gilbert (2). The order will be, that the applicants are entitled to the 6 per cent., but puisne to the bank's charge. Solicitors for the plaintiffs : Messrs. Maxwell, Weldon 8f Co. Solicitor for the Bank of Ireland : Mr. Edward De Moleyns. V.-C. LEONARD v. KELLETT. 1891. May 4, 11. (1889. No. 11,632.) Costs-Suit by mortgagee for administration-Deficient estate-Executor's costs-Priority. Mortgagees of realty and personalty brought an action for the administration of the estate of the deceased mortgagor, and the mortgaged property was sold under an order of the Court. A balance was found due to the executor his accounts of personal estate. The personal estate not comprised in the mortgage was insufficient to pay the executor's costs of action, and the proceeds of the sale were insufficient to pay the principal and interest due on the mortgage : Held, that the executor should be paid his costs out of the personal estate not comprised in the plaintiffs' mortgage, so far as same would reach; and (1) 23 L. R. Ir. 283. (2) 25 L. R. Ir. 230. VOL. XXVII.] CHANCERY DIVISION. 419 that, after providing for the costs of sale of the mortgaged property out of the V.-C. money realized thereby, the execuTOisiTosts, ii-OT covered by Thegeneral per- 1891. zonal estate, should be paid out of the plarace personal estate conmised LEONARD in the plaintiffs' security, in priority to the plaintiffs' demand and costs. KET.T.ETT. Rules as to costs in suits by mortgagees discussed. lifonoN by the plaintiffs for an order that the Accountant-General should, out of the funds in Court to the credit of the action, pay to the defendants the taxed costs of sale, and should pay the residue of said funds to the plaintiffs ; and cross motions by the defendants for payment to them out of said residue of their costs of action. The plaintiffs were creditors on the estate of David Kellett, deceased, holding mortgages on portion of his property (real and peisoual) as security for their debt. The defendant Robert Kellett was executor of David Kellett, and after the death of the latter he permitted the plaintiffs to sell portion of the testator's personal estate, and after payment of rent due, to retain the proÂceeds in part discharge of the amount due to them. The action was brought for the purpose of having the real and personal estate of David Kellett administered, and the plaintiffs claimed to have the usual accounts taken. The mortgaged property was ordered to be sold, and the plainÂtiffs desiring to bid, the carriage of the sale was given to Robert Kellett. He subsequently became bankrupt, the action was conÂtinued against his assignees, and they completed the sale. [See also, as to the assignees, the argument of their counsel, post.] A sum of over £500 was found due to Robert Kellett on his account of personal estate. The funds in Court representing the estate not comprised in the plaintiffs' security (furniture, &c.) amounted to only about £50. The proceeds of the sale of the mortgaged property was insufficient to pay the amount due to the plaintiffs for principal and interest. By the judgment, on further consideration, the question of the costs of the action was reserved. Robert Kellett had made default in complying with an order to execute a conveyance of the property sold. Mr. Carton, Q. C., for the plaintiffs : To the extent of the property not included in the plaintiffs' mortgage, it is admitted that the executor's costs are entitled to priority ; but the same considerations do not apply to the proceeds of the sale of the mortgaged property, and the plaintiffs are entitled, after the costs of sale have been provided for, to be first...