O'Mahony v Burdett

• Jurisdiction: Ireland
• Judgment Date: 16 April 1862
• Date: 16 April 1862
• Court: Rolls Court (Ireland)

Rolls.

O'MAHONY

and

BURDETT.

O'Mahony v. Burdett 10 Ir. Chan. Rep. 14.

Edwards v. EdwardsENR 15 Beav. 357.

Child v. GibsonENR 2 Atk. 106.

Raymond v. Broadbelt 5 Ves. 199.

1862. Rollg. FOWLER BLAKELY. 68 CHANCERY REPORTS. case ; and that I cannot hold that, as to the bog of Littlemount, there was no right to cut turf, except for consumption on the demised premises, but that, as to the bog of Rathkeeland, the right was different, although turf was never cut for sale on either bog prior to the lease, or until after the sale to the petitioner. I shall, therefore, grant the injunction sought by the petitioner. I suppose an interlocutory order has been granted ; if so, the order should be sent to the Court. Judgment. CHANCERY REPORTS. 69 ably with the other two legacies, by reason of the stock being insufficient to pay them, he paid a sum equal to the dividends of £736. 5s. 4d. to Grace L'Estrange the younger, until her marÂriage, on the 11th of September 1851, and afterwards to her and her husband, Edmond William O'Mahony. A cause petition having been filed by Mr. and Mrs. O'Mahony, for the administration of the testatrix' assets, Master Litton, by a decretal order of the 5th of July 1861, declared that the legacy was a general legacy ; and (the sum of £1000, new £3 per cent. stock, having been invested by the respondent, John Head Burdett, on the 29th of January 1859), the Master further declared that the said respondent was liable to pay to the petitioners interest at £5 per cent. on the sum of £955 cash, which was the amount of the purchase-money of the said sum of £3 per cent. stock on the 29th of January 1859 ; the respondent being entitled to credit, as against said interest, for all sums which had been paid by him to the petitioners on account of interest or dividends on foot of the said legacy. The respondent appealed from the latter portion of the order, charging him with interest on £955 ; and, by his notice of appeal, sought that, in lieu thereof, it might be declared that he was liable to pay dividends on the sum of £263. 14s. 8d., 131 per cent. stock (the difference between £736. 5s. 4d., the abated, and 11000, the full amount of the, legacy), from the 29th of March 1849 (a year after the testatrix' death), or that he was liable for interest at £5 per cent., for the same period, upon the price, on the 29th of March 1849, of £263. 14s. 8d. of the said stock. Mr. May, in support of the appeal. The £1000 having been bequeathed to Mrs. O'Mahony for life, Argument. and, on her death, unmarried or without children, to Colonel L'Estrange, there was no person to whom the legacy could be paid, of the £1000 stock, when purchased, transferred : O'Mahony v. Burdett (a); Edwards v. Edwards (b). The respondent, therefore, was in no default; and all he was bound to pay was the dividends (a) 10 Ir. Chan. Rep. 14. (b) 15 Belay. 357. 70 CHANCERY REPORTS. )48,61. on £1000 stock: Lewin on Trusts, 5th ed., pp. 350, 358, 360; Child Rolls. v. Gibson (a). 0?*ABONY V. BITEDETT. Mr. D. .21Mau.sland and Mr. Exham, in support of the Master's Argument. order, cited Raymond v. Broadbelt (b). The MASTER OF THE ROLLS. A motion has been made in this case, on behalf otthe respondent, John Head Burdett, by way of appeal from so much of the decretal order of Edward Litton, Esq., made on the 5th of July 1861, as declares that the said respondent is liable to pay interest at £5 per cent. on the sum of £955, therein mentioned ; and that, in lieu thereof, it may be declared that the respondent is liable to account with the petitioners for dividends on the sum of £263. 14s. 8d., £32 per cent. stock, from the 29th of March 1849 to the 29th of January 1859; or that the respondent is liable to account with the petitionÂers for interest at £5 per cent., for the period aforesaid, upon so much...