Mannix v Drinan

• Jurisdiction: Ireland
• Judgment Date: 18 November 1840
• Date: 18 November 1840
• Court: Court of Chancery (Ireland)

Chancery.

MANNIX

and

DRINAN.

Hamilton v. HoughtonENR 2 Bligh. 169.

Gorman v. Arthure Ll. & Goold, Cas. temp. Plunket, 235.

Clarke v. Seton 6 Ves. 414.

Moore v. MacnamaraUNK 1 B. & B. 309.

Hughes v. Wynne 1 My. & Kee. 20.

Berrington v. Evans 1 Young, 46.

Grant v. GrantENR 3 Sim. 340.

Hickson v. Aylward Ll. & Goold, Cas. temp. Plunket, 233.

Sterling v. Wynne 1 Jones, 51.

M'Clure v. DunkinENR 1 East, 436.

Arnott v. RedfernENR 3 Bing. 353.

Hyde v. PriceENR 8 Sim. 578.

Hodges v. Waddington Vent. 360.

Anonymous 1 Ver. 162.

Ventris, Newman v. Barton 2 Ver. 205.

Hardwicke v. Mynd 1 Ans. 109.

Orr v. KaimesENR 2 Ves. sen. 194.

Walcot v. HallUNK 2 B. C. C. 305.

Orr. v. KaimesENR 2 Ves. sen. 194.

Chelsea Waterworks v. CooperENR 1 Esp. 275.

Marck v. RussellENR 3 My. & Cr. 36.

Taylor v. Gorman Not reported as to this point.

Brodie v. Barry 5 Ves. 225.

Adams v. Claxton 1 Ja. & Wal. 471.

ENR Spackman v. Timbrell, 8 Sim. 260.

108 CASES IN EQUITY. 1840. Chancery. MANNIX v. DRINAN. Nov. 14,16, 17, & 18. ( In Chancery.) The conusor of a judgment, by ANDREW DRINAN, the testator in the pleadings of this cause named, on his will in 1802, be- the 10th of February and 7th of April 1796, executed two bonds with queathes cer- warrants of attorney collateral, in the penal sums of £1000 each, condi tain leaseholds specifically, tioned for securing £500 of the then currency to Thomas Mannix, and a conppuseeoints a attorney. Two judgments were entered on these bonds, one in Tri- the trustee under nity Term 1796, and the other in Michaelmas Term 1799, and Mannix, his will. The executor as- by deed of the 15th January 1800, executed on his marriage with the Bents to the be- plaintiff Charlotte Mannix, assigned those two judgments, to trustees, quest in 1808, having at the upon trust, to pay the interest to himself for life, and after his decease, time assets for to his intended wife, the plaintiff, for her life ; and in case she survived the payment of all debts of the him, and there was no issue, then upon trust for her absolutely. testator. A suit is in- Andrew Drinan, the conusor of these judgments, was, in and prior to stituted in theyear 1802, seized of several denominations of land for freehold 1812 for a sale of part of the interests, and, amongst the rest, of the lands of Raffeen, which he held testator's pro under a lease for lives renewable for ever, and was entitled to chattel perty by a spe cific encum- interests in various other denominations of land, and, amongst the rest, brancer, and under the de- the lands of Malin and Ballyorban, for long terms of years, and was also cree in that entitled to very considerable personal property, the chief part of which cause, the judgment is was invested in a valuable brewery, held for a long term of years. He, proved, and by his will, dated the 9th of February 1802, directed his debts to be declared a charge on the paid out of all such property as he should die seized of or entitled to, premise. No sale takes and expressly postponed all bequests in his will to the payment place, and af- thereof, and subject thereto, devised the said lands of Raffeen to BarÂter the death of the conusee in tholomew Foley and Thomas Mannix (the conusor of the two judg 1822, his wi- ments), upon trust for his wife Mary Drinan, for life, and after her dow, who was entitled to the decease to his son George Drinan, his heirs and assigns, and bequeathed judgment un- der a settle- the said lands of Magill' to his son David ; and by his said will, he ment which bequeathed the lands of Ballyorban to the same trustees, upon trust for gave the conu see a life inte- his son John Drinan, when he should attain the age of twenty.three rest in it, files years, absolutely ; and he gave and bequeathed the brewery concerns to her bill to raise the amount, the same trustees, upon trust, as to one-third for his son George, and which she amends in as to another third for his son Andrew ; and as to the remaining third, 1835, making upon trust for his widow for life, and, at her death, for such of his parties the specific lega tee, his wife and children, upon whom the chattel had been settled by a post-nuptial setÂtlement:-Held, that she was entitled to compel the owner of the chattel to contribute to the payment of the judgment. A creditor who, by lying by, permits the executor, having at that time assets for payÂment of debts, to pay a legacy, does not thereby lose his right to compel that legatee to contribute to the payment of his debt, if the executor subsequently waste the assets ; but the assets of the defaulting executor must be first resorted to, and the insolvency of the executor not having been proved :-Held, that the legatee was entitled to an inquiry upon the point, even after a decree to account, and a repo under it. CASES IN EQUITY. 109 sons as she should by will appoint. The stock in the brewery the testator gave to his sons George and Andrew, and his widow, share and share alike, provided the same did not exceed £4000 ; but if it should be found upon a valuation to exceed £4000, then the surplus to go to his widow ; and if she did not exercise her power of appointment as to her own third, then the same was to go to his said sons equally. He gave legacies of £2000 each to his daughters Anne and Margaret, and he made his widow sole residuary legatee, and appointed her exeÂcutrix during her life,:and at her death, his sons George, David, and Andrew. The testator died shortly after the date of his will, without having altered or revoked it, leaving his, two daughters Anne and Margaret, his five sons George, Andrew, David, Charles and John, surviving. The testator's widow (Mary) proved the will, and she and her sons George and Andrew carried on the brewing business on the testator's concerns in partnership for some years. The debts due by the testator were very small, compared with the amount of his personal estate ; and shortly after his death, his son David, with the assent of the executrix, went into possession of the lands of Maglin ; and when John attained his age of twenty-three years, he also, with the like assent of the executrix, possessed himself of the lands of Ballyorban. On the 11th of June 1807, George Drinan mortgaged his share of the brewery, and other premises which had been devised to him by the testator, to his brother Andrew, for securing £7500. That mortgage included some premises adjoining the brewery, which had never been the property of the testator, but upon which certain extensions of the concern had been built after his death. Shortly afterwards, Mary Drinan assigned her share to George, in consideration of his taking on himself the payment of the two legacies given to his sisters : and he accordingly, by deed of the 25th of February 1808, mortgaged the brewery for £4000 to John Williams, who had married testator's daughter Margaret, upon trust as to one-half for the other daughter Anne. Andrew Drinan, on the 14th of February 1812, assigned the mortÂgage for £7500, to John Haynes, as a collateral security for £1000. The interest on Mannix's judgments was paid up to the year 1813, from which period it was suffered to fall into arrear. On the 30th October 1812, John Williams filed his bill to foreclose the mortgage of the 25th February 1808, executed to secure the legacies to the testator's daughters. On the 11th December 1813, a decree to account was pronounced, under which the Master was directed to take an account of what was due on foot of the mortgage of the 11th June 110 CASES IN EQUITY. 1807 ; and all persons having debts or encumbrances prior to the mortÂgage of February 1808, were declared at liberty to come in and prove. A supplemental bill was filed on the 19th of October 1814, against J. Haynes, to which he appeared and answered. The surviving trustee in Mannix's marriage settlement proved the judgments under the decree, and the Master reported £1092. 8s. 5d. to be due to him on foot of them for principal, interest, and costs. A final decree was pronounced on the 3rd of March, 1815, by which George Drinan was directed to pay the amount of the mortgage, and of all prior encumbrances (including Man nix's judgments), and that in default of his doing so, the premises comprised...