M'Kinlay v MacKey

• Jurisdiction: Ireland
• Judgment Date: 14 February 1895
• Date: 14 February 1895
• Court: High Court

M'Kinlay

and

Mackey.

Monroe, J.

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Administration action — Further proceedings in aid of — Order as to carriage — Discretion of County Court Judge — County Court Orders, 1890, Order XXXVI., Rule 9.

A suit by equity civil bill was brought by the executors of A against her son B, for the administration of her personal estate. On the taking of the usual accounts and inquiries it appeared that certain farms held for chattel interests, of which A had been in possession, were the property of her deceased husband C, of whose estate A had obtained letters of administration, and the plaintiffs applied to the County Court Judge for liberty to file an equity civil bill for the administration of C's estate. Before the application was heard letters of administration de bonis non of C's estate were granted to B.

The County Court Judge made an order that B should have the carriage of the further suit:—

Held, on appeal—(1) that where, in the course of an administration suit, outside proceedings have to be brought, the County Court Judge has power to direct by whom such proceedings are to be taken;

(2) That where there is a personal representative, whose conduct is unim-peached, of the testator whose estate is to be administered, he is prima facie the person to have carriage.

Order XXXVI., Rule 9 (County Court Orders, 1890), is not limited to a suit in existence at the time of making the order for carriage of proceedings, but extends to any proceedings which may have to be instituted in the course of an administration suit, and for its furtherance.

Appeal by the plaintiffs, William M'Kinlay, and John M'Kinlay, executors of Sarah Mackey, deceased, from an order made by His Honor Judge Roche giving the carriage of a civil bill for the administration of the estate of Joseph Mackey, deceased, to the defendant, James Mackey. The circumstances are stated fully by Mr. Justice Monroe in giving judgment.

Charles Murphy, for the appellant:—

Order XXXVI., Rule 9, which will be relied on in support of the decision of the County Court Judge, does not apply to a new proceeding which it may become necessary to take. It is confined to the existing suit. The original plaintiffs were the proper persons to have the carriage of the proceedings in relation to Joseph Mackey's estate, apart from actual misconduct on their part, which was not alleged: Harrison v. Richards (1); Longbourne v. Fisher (2); Walker and Elgood on Executors, p. 126.

F. Redmond, for the respondents:—

The County Court Judge had clearly a discretion in this case under Order XXXVI., Rule 9, the words of which are wide enough to include all proceedings in relation to the administration of an estate in the County Court. The powers of the County Court Judge, under section 33 of the Act of 1877, are the same as those of a Judge of the Chancery Division of the High Court of Justice, within the limits defined by the section. Those powers were defined in Ireland by section 151 of the Chancery (Ireland) Act of 1867, and in England by the Chancery Procedure Act of 1852, section 45. The two sections are identical, and in both the Judge is given the widest discretion as to the selection of the party who...