Longfield v Bantry

• Jurisdiction: Ireland
• Judgment Date: 06 March 1885
• Date: 06 March 1885
• Court: Chancery Division (Ireland)

CHANCERY DIVISION.

LONGFIELD

and

BANTRY.

Harris v. Harris I. R. Eq. 3 610.

Nugent v. Nugent I. R. 8 Eq. 78.

Oakes v. OakesENR 9 Hare, 666.

In re Johnstone's Settlement 14 Ch. Div. 162.

Morgan v. Thomas 6 Ch. Div. 176.

Boyes v. Cook14 Ch. Div. 53.

Thomas v. JonesENRUNK 2 J. & H. 475; S. C. on App. 1 D. J. & S. 63.

Clark v. BrowneENR 2 Sm. & G. 524, 528.

Williamson v. Advocate-GeneralENR 10 Cl. & Fin. 1, 17.

Darley v. MartinENR 13 C. B. 683.

Turvin v. NewcomeENR 3 K. & J. 16.

Browne v. StoughtonENR 14 Sim. 369.

Cochrane v. CochraneUNK 11 L. R. Ir. 361.

Ferrand v. WilsonENR 4 Hare, 344.

Stanley v. PotterENR 2 Cox, 180.

Gardner v. HattenENR 6 Sim. 93.

Luard v. Lane 14 Ch. div. 356.

Harrison v. Jackson 7 Ch. Div. 339.

Re GibsonELR L. R. 2 Eq. 669.

Emuss v. SmithENR 2 De G. & Sm. 722.

Hopwood v. Hopwood 7 H. L. Cass. 728.

Holmes v. Coghill 7 Ves. 498

Nugent v. Nugent I. R. S. Eq. 78.

Briggs v. Oxford I De G. M. & G. 363.

Bateman v. HotchkinENR 10 Beav. 426.

Meller v. Stanley 2 De G. J. & Sm. 183

Hibbard v. LambeENR Amb. 309.

Bull v. Vardy 1 Ves. Jun. 270, 271.

Down v. WorrallENR 1 My. & K. 561.

In re EddowesENR 1 Dr. & Sm. 395.

Lord Teynham v. WebbENR 2 Ves. Sen. 198.

Lyddon v. EllisonENR 19 Beav. 565.

Bathurst v. ErringtonELR 2 App. Cas. 698, 710.

In re Bayley's settlementELR L. R. 6 Ch. App. 590.

Choat v. Yeates 1 J. & W. 112.

Vernon v. Earl MancersENR 31 Beav. 623.

Lyddon v. EllisonENR 19 Beav. 565.

Sykes v. SykesELR L. R. 13 Eq. 56.

Case v. Drosier 2 Kee. 764.

Cochrane v. CochraneUNK 11 L. R. Ir. 361.

Case v. Drosier 2 Kee. 764.

Will — Specific bequest — Ademption — Arrears of rent — Residuary gift — Payment of legacies — Younger child — Donor in loco parentis — Trust to accumulate — Trust for improvement of estates — Discretion of trustees — remoteness.

Vot. XV.] CHANCERY DIVISION. 101 For these reasons we are of opinion that the case before Vice- Appeal. Chancellor Maims [Havelock v. Havelock (1)] cannot be followed. 1885. This Court will not lay down a rule that the trusts of a will can KEMMIS be set aside, for the purpose of providing maintenance, in the face v. of an absolute direction for accumulation during a term created for that purpose. We cannot do violence to the trusts and divert the rents to the use of the tenant for life. The testator has measured the extent of his bounty to him, and, I am bound to say, I think he has done so in no illiberal way. It was the testator's province and right to say what this tenant for life should have, and what his son should have. He has said it in the clearest and plainest language ; and the first direction always given in an action to administer the trusts of a will, viz. that they be carried out, must be strictly followed Order of the Vice-Chancellor affirmed. Solicitors for the Appellant, the guardian of the minor : Messrs. Whitney 8f Armstrong. Solicitor for the Plaintiff : Mr. H. G. Cooper. Solicitor for Mr. Quin : Mr. T. C. Franks. LONGFIELD v. BANTRY. v. a 1885. Will-Specific bequest-Ademption-Arrears of rent-Residuary gift-PayÂment of legacies-Younger child-Donor in loco parentis-Trust to accuÂmulate -Trust for improvement of estates -Discretion of trustees -Remoteness. A testator by his will dated the 23rd June, 1869, after reciting that he was entitled as against the M. estates to the sum of £7966 1 le. 4d., being the amount ascertained to be paid by him in his character of executor of the late R. H. E., in discharge of the residue of liabilities to which the inheritance in the M. estates were liable, bequeathed to his son W. the sum of £7966 lls. 4d., or such other sum as he might be entitled to raise off the M. estates. The (1) 17 Ch. Div. 807. VOL. XV. Jan. 28, 29. March 6. 102 LAW REPORTS (IRELAND). [L. R. I. V. C. testator was tenant for life of the M. estates, with remainder to W. 1885. tail male. By deed dated the 9th day of July, 1875, the M. estates, awl also the B. estates, of which the testator was tenant for life, with remain.. LONGFIELD v. der to W. in tail, were resettled. This deed recited that upon the winding-up BANTRY. of the testamentary estate of R. H. E. (under whose will the M. estates were limited), an account was settled between the several devisees of the respective estates of R. H. E. with a view to ascertain their liability, and that the testa. tor had been ascertained to be entitled to stand against the M. estates for the sum of £8329 Os. 2d., and that it had been agreed that the said sum of £8329 Os. 2d. should be charged on the inheritance of the said several estates; and by the said deed the M. estates and the B. estates were granted to trustees for five hundred years, in trust to raise the sum of £8329 Os. 2d., and pay the same as the testator should appoint : Held, that there was no ademption of the bequest to W. of the charge on the estates. The testator, after reciting that he was entitled to certain sums of money invested in Government Stock, bequeathed the said several sums of money, securities for money, stocks, arrears of rent, shares, property, and all other the personal estate and effects of every nature and kind whatsoever, which he might die possessed of or entitled to, and not thereinbefore specifically beÂqueathed, to L. and P., his trustees and executors, in trust to pay-lst, his funeral and testamentary expenses, and all expenses in relation to the trusts of his will ; 2ndly, all his debts except mortgage debts ; 3rdly to pay the legacies which he proposed to enumerate in a codicil to his will ; and subject as aforeÂsaid in trust to pay certain legacies to his daughters ; and in case the residue of his personal estate should not be sufficient, with the arrears of rent of his said estates as thereinbefore provided, to make up said legacies to his daughÂters, the deficiency should be borne by them equally ; but in case it should be more than sufficient, he left the surplus to W. The testator by his second codicil revoked the legacies to his daughters, and directed his executors to set apart out of his personal estate the sum of £5000 for the benefit of his daughter E. for life, and after her decease to pay the principal sum to and among all and every or any one or more of her younger children by her then present or any after-taken husband as she should appoint; and in default of appointment, to and among all her said younger children, if more than one, equally ; and in case she should die without leaving any younger children, then over. The testator further directed his executors to pay £10,000 to trustees for the benefit of his daughter J., and after certain specific gifts, he directed all the rest and residue of his stocks, funds, moneys, and securities for money, except the arrears of rent due out of his estates at his death, which, he stated, he left by his will to his son W., after the payment thereont of his debts, funeral and testamentary and administration expenses, should be transferred by his executors to G. and L., upon trust to invest the same in the purchase of freehold estate in Ireland as and when they should VoL. XV.] CHANCERY DIVISION. deem fit, and convey the same to W. for life, with remainder over ; and until the same should have been laid out in the purchase of land as aforesaid, to apply the whole or such part of the income of said fund as in their discretion they should deem expedient upon the improvement of the B. and M. estates as they should think proper, and for the benefit of the inheritance in said estates, so long as the same should be enjoyed by his said son or his direct descendants; and in case his son should die without issue before the same was invested, then he left same to his daughters. By the sixth codicil the testator bequeathed to the trustees of his said will, and declared that they should hold, the sum of £6000, part of the sums set apart for the improvement of his estates, in trust for the Church of Ireland, as therein mentioned. After making the second codicil, the testator's daughter J. married K. H., and a settlement was executed upon the marriage. The testator afterwards executed a fourth codicil, reÂvoking the £10,000 given to her by the second codicil, and in lieu thereof he directed his executors to set apart out of his personalty £10,000, and pay same to the trustees of the settlement on the trusts mentioned in the codicil; and amongst others, in the event of J. dying without children surviving her who should attain twenty-one or marriage, he directed the £10,000 should be paid to the trustees of his will and codicils, and go to increase the residue of his stocks, funds and securities, as mentioned in the second codicil, and be held upon the same trusts as mentioned in the codicil concerning such residue. E. had two children, a daughter and son, of whom, according to priority of birth, the son was the younger :- Held (1). That there was no specific gift to W. of the arrears of rent by the second codicil, but that they formed portion of the general personal estate ; (2) That the arrears of rent were liable to discharge the legacies of £5000 and £10,000 rateably with the other portions of the general personal estate beÂqueathed to L. and P. ; (3) That the debts, funeral and testamentary expenses, and the costs of administration were payable primarily out of the stocks, funds, moneys and securities for money ; (4) That the legacies were payable out of the general personal estate bequeathed in trust to L. and P., including the arrears of rent and the stocks, funds, moneys and securities for money, rateÂably ; (5) That E.'s son being actually the younger of her two children, was entitled to the legacy of £5000 ; (6) That the authority given by the second codicil to the trustees of the residue, to apply the income on the improveÂment of the M. and B. estates was valid, and that W. was entitled to the income of the residue, or so much thereof as should not be applied...