M'Carthy v M'Cartie

• Jurisdiction: Ireland
• Judgment Date: 29 January 1907
• Date: 29 January 1907
• Court: Chancery Division (Ireland)

M'CARTHY

and

M'CARTIE.

Chancery Division

Will — Charge of legacies on real estate, if personal estate insufficient — Subsequent specific devise — Acquiescence — Lapse of time.

Alcock v. SparhawkENR 2 Vern. 228.

Bailey v. BaileyELR 10 Ch. d. 269.

Bamfield v. PophamENR 1 P. Wms. 57.

Barrt v. Harding 7 Ir. Eq. R. 330.

Blake v. GaleELR 32 ch. D. 371.

Bradford's EstateUNK [1895] 1 Ir. R. 251.

Campbell v. M'Conaghy Ir. R. 6 Eq. 20.

Chinnery v. Evans 11 H.L. Cas. 115.

Conron v. Conron 7 H. L. Cas. 168.

Conron v. Conron 7 H. L. Cas. 190.

Coope v. CresswellELR L. R. 2 Ch. 112.

Cornwall v. SaurinUNK 17 L. R. Ir. 595.

Dickinsom v. TeesdaleENR 1 De G. J. & S. 52.

Dormay v. BorradaileENR 10 Beav. 263.

Fisher v. WiggENR 1 P. Wms. 14.

Fisher v. WiggENR 1 P. Wms. 57.

Fisher v. WiggELR 9 Ch. D. 646.

Fordham v. WallisENR 10 Hare, 217.

Forth v. ChapmanENR 1 P. Wms. 663.

Howard v. ChaffersENR 2 Dr. & Sm. 230.

Howard v. ChaffersENR 2 Dr. & Sm. 236.

Humble v. HumbleUNK 2 Jur. 696.

Idle v. CookENR 1 P. wms. 70, 75.

Idle v. Cook Ibid. 70.

Johnstone v. Lord Harrowby 1 DeG. F. & J. 183.

Joy v. campbell 1 Sch. & L. 328

Keeling v. Brown 5 Ves. 359.

Kightley v. Kightley 2 Ves. Jun 328.

Leacroft v. Maynard 3 Br. C. C. 232.

Leahy v. De MoleynsUNK [1896] 1 Ir. R. 206.

Less v. Less Ir. R. 5 Eq. 549.

Mannox v. GreenerELR L. R. 14 Eq. 456.

Mannox v. GreenerELR L. R. 14 Eq. 459.

Maskell v. FarringtonUNK 3. D. J. & S. 338.

Massy's Estate 14 Ir. C. R. 355.

Massy's Estate 14 Ir. Ch. R. 235.

Massy's Estate 14 Ir. Ch. R. 353.

Massy's Estate 14 Ir. Ch. R. 655.

Morgan v. MorganENR 1 P. Wms. 14.

Morgan v. MorganELR L. R. 10 Eq. 99.

Olivant v. WrightELR 9 Ch. D. 646.

Preston v. Preston 2 Jur. (N. S.) 1040.

Putnam v. BatesENR 3 Russ. 129.

Quain v. HarveyUNK 5. L. R. Ir. 622.

Richardson v. MortonELR L. R. 13 Eq. 123.

Roberts v. WalkerENR 1 Russ. & M. 732.

Roddam v. MorleyENR 1 De G. & J. 1.

Seagood v. HoneENR Cro. Car. 366.

Shallcross v. finden 3 Ves. 739.

Spong v. SpongENR 1 Dow & Cl. 365; 3 Bli. (N. S.)

Spong v. SpongENR 3 Bligh (N. S.) 84.

Spong v. SpongENR 3 Bligh (N. S.) 84; 1 Dow & Clark, 365.

Steward v. EnglandELR [1895] 2 Ch. 100, 820.

Tatlock v. JenkinsENR Kay, 655.

Trousdale v. Hayes W. N. 1883, p. 13.

86 _ THE IRISH REPORTS. [1897. m. R. M'CARTHY v. M°CARTIE. 1896. Jan. 13, 14, (1879. No. 1749.) 29. Appeal. Wall—Charge of legacies on real estate, if personal estate insufficient—Subse-Hay 11-13. quent specific devise—Acquiescence—Lapse of time. June 23. A testator bequeathed pecuniary legacies to his three daughters, chargeable upon and payable out of his chattel property, money, and effects, and, if the same should be insufficient, charged upon and payable out of his real and personal estates. The testator then devised the lands of A (held by him in fee-simple) to his second son, with remainder over to his eldest son in the event of his second son dying under twenty-one or without issue, and devised and bequeathed to his eldest son, subject as aforesaid, a brewery with the stock-inÂtrade belonging thereto, house property, farms, and fee-simple estates (which in fact constituted the residue of his property), and appointed his eldest son residuary legatee, and his wife and two other persons his executrix and executors. By a codicil the testator increased the legacies to his three daughters by further sums, to be subject to the same conditions as the fortunes already left to them. The testator died in 1860, and at that time his personal estate and effects were sufficient to pay his debts and legacies, and one of his daughters, who was married, received her legacy. The other two daughters, who were unmarried, were paid interest on their legacies, as well as on portions appointed to them by their father pursuant to his marriage settlement, by his personal representatives, and afterwards by their eldest brother. The second son attained twenty-one, and died intestate and without issue, and thereupon the eldest son succeeded to the lands of A in addition to the property devised and bequeathed to him by the testator. The eldest son mortgaged the lands of A to K., and afterwards to a bank, making a statutory declaration that all his father's debts and legacies had been paid or satisfied, and died in 1879. By his will he bequeathed the lands of A to his two unmarried sisters, freed and discharged from the mortgages created by him, and left the residue of his property to his only daughter, a minor, and appointed his two sisters her guardians. An action was brought in the name of the minor for the administration of the real and personal estate of her father, and a receiver was appointed over the lands of A and the other fee-simple lands. In 1884 an order was made fixing the priorities of ineumbrances upon the Vol,. I.] CHANCERY DIVISION. 87 said lands, under which interest was paid to the bank and to K on foot of their M. R. mortgages. The sisters made no claim upon the said lands in respect of their _ 1896. legacies, and interest was paid to them by their brother's executor down to M'CABTSY 1886. v. In 1889 one of the unmarried sisters died, having bequeathed all her M'CABTIE. property to her sister. In 1893 the lands of A were sold by leave of the Court under the Land Purchase Acts, and K. and the bank were returned as the only incumbrancers. In 1894 the surviving sister filed an objection to the schedule of incumbrances, claiming priority over K. and the bank on the ground that the legacies were a subsisting charge on the lands. The proceeds of sale were transferred to the credit of the administration action to abide the order of the Court, and an application was made on behalf of the bank and K for payment out to them of the funds in Court on account of the sums due on foot of their mortgages Held, by the Court of Appeal, affirming the decision of the Master of the Rolls—(1) that upon the true construction of the will the legacies were charged on the lands of A; (2) that in the events which happened the legacies were a subsisting charge on the lands, although at the time of the death of the testator the personal estate of the testator was sufficient to pay them ; (3) that there was no lathes or acquiescence on the part of the legatees to prevent them asserting their priority. Richardson v. Morton (L. It. 13 Eq. 123) dissented from ; Massy's Estate (14 Ir. Ch. R. 355) and Bradford's Estate ([1895] 1 Ir. It. 251) followed. MOTION. This was an application on behalf of the Governor and ComÂpany of the Bank of Ireland, for an order, that the Accountant-General should transfer the sum of £3957 IOs. 9d., guaranteed land stock, and pay the sum of £585 4s. 2d. cash in Court to the credit of this action, and separate credit of the lands of Ardagh, to Mrs. Louisa Kavanagh, personal representative of Mary KavaÂnagh, and the Governor and Company of the Bank of Ireland, on account of the sums due on foot of their mortgages of the said lands, and for directions consequent thereon. The facts of the case were stated in the affidavit of Mr. John Malcolmson, solicitor for the Bank of Ireland, upon which the motion was grounded, and in an affidavit of Miss Louisa M'Carthy, made in reply thereto, and were as follows : This action was brought to administer the real and personal estate of Florence M'Carthy, and the lands of Ardagh, referred to in the notice of motion, formed part of his real estate, and had THE TRISH REPORTS. [1897. been sold by leave of the Court to tenants under the Land Purchase Acts, and the proceeds brought into Court, pending the determination of the question, whether certain legacies bequeathed to gate M'Carthy and Louisa M'Carthy, the sisters of Florence M'Carthy, by their father, Daniel M'Carthy, were a subsisting charge on the lands of Ardagh, in priority to the mortgages of the said lands made by Florence M'Carthy to Miss Mary KavaÂnagh and to the Bank of Ireland. Daniel M'Carthy, by his will dated July 26th, 1859, after con-firming a jointure of £150 a-year to his wife, charged by his marÂriage settlement upon his house property in the town of Skibbereen, with the exception of his brewery and concerns annexed to it, devised and bequeathed to his executrix and executors all his estates, real and personal, upon the trusts, and for the purposes thereinafter mentioned, in the first place to call in any debts and arrears of rent due to him, and the amount of an insurance on his life, and discharge his debts thereout ; and, after making certain specific legacies (including furniture and a jaunting ear) to his wife and children, and two legacies of £10 each to friends, and appointing (pursuant to the power contained in his marriage settlement), a sum of £2000 to his four younger children, Gerald, Kate, Margaret, and Louisa M'Carthy, in equal shares, he devised and bequeathed to his said three daughters a further sum of £700, payable to each of them, at the rate of 5 per cent. per annum, from the date of his death, to be paid, and payable out of, and charged, and chargeable in the first place, upon his chattel property, money, and effects, and if the same should be insuffiÂcient, then the said several sums to be paid, and payable out of, and charged and chargeable upon, his real and personal estate. The testator then devised and bequeathed to his second son Gerald M'Carthy all his estate and interest in the farm and lauds of Ardagh East, otherwise Ardagh Prior, together with a sum of £500 in addition to the legacies already bequeathed to him, and which latter sum was not to bear interest, and in the event of the death of his sou Gerald, under the age of 21 years, or without leaving issue, remainder in the said lands of Ardagh to his eldest son Florence M'Carthy, remainder to his daughters in manner therein mentioned. He next gave, devised, and bequeathed to VOL. I.] CHANCERY DIVISION. his eldest son, Florence M'Carthy...