Mills v Spear

• Jurisdiction: Ireland
• Judgment Date: 16 July 1852
• Court: Court of Chancery (Ireland)
• Date: 16 July 1852

Chancery.

MILLS

and

SPEAR.

Jackson v. JacksonENR 7 Cl. & Fin. 997.

Askham v. BarkerENR 12 Beav. 499.

Langston v. BlackmoreENR Amb. 289.

Greene v. PulsfordENR 2 Beav. 70.

Plunkett v. LewisENR 3 Hare, 316.

Douglas v. WillesENR 7 Hare, 318.

Thompson v. Simpson 1 Dr. & War. 459.

M'Queen v. Farquhar 11 Ves. 467.

Hamilton v. KirwanENRUNK 2 Jon. & Lat. 393; S. C., 8 Ir. Eq. Rep. 278.

Palmer v. Wheeler 2 Ball & Beat. 30.

Connolly v. M'Dermot Beat. 601.

Daubeny v. CockburnENR 1 Mer. 643.

304 CHANCERY REPORTS. 1852. Chancery. MILLS v. SPEAR.. July 13,14-, 16. (Chancery.) A father, RICHARD PAUL TYRRELL HORNER, in the year 1786, was possessed having a power of appointment of certain houses on Bachelor's-walk, in the city of Dublin, and of over property, consisting of certain houses and lands in Finglas, for terms of years. By inden money and land, in favour ture, bearing date the 5th of June 1786, being the settlement exe of his two chil dren A and B, cuted on the marriage of R. P. T. Horner and Elizabeth Nugent, by deed poll, reciting-that after reciting that the said Elizabeth Nugent was entitled to a fortune .E1000 ha been paid to of 11000, of the then Irish„eurrency, secured by the bond of her A, as a mar father, George Lucas Nugent ; and that R. P. T. Horner was pos riage portion out of the sessed of said houses, and that certain persons, named in a scitedule trust fund, and that it was to the deed, were indebted to him in £3000, and had executed bonds intended as her share of the to the trustees of the deed, R. P. T. Horner assigned to the said. trus trust fund, and a satisfaction tees the houses on Bachelor's-walk, and the houses and premises at of her claim thereon, ap- Finglas, for the residue of the terms for which they were held, with pointed and declared that all benefit of renewal ; and it was declared that the said leasehold the said sum of £1000, part interests, and the other funds, amounting altogether to £4000, were of said trust vested in said trustees, upon trust, that the rents of the leasehold fund, should be the full interests, and the interest of the debts and securities, should, during share of A ; and he ap- the joint lives of R. P. T. Horner and Elizabeth Nugent, be paid pointed the re mainder of the to R. P. T. Horner and his assigns, to his and their own use ; and property to B. By a deed, ex- from and after the death of the said R. P. T. Horner, in case the ecuted five days after- said Elizabeth Nugent should survive him, then that the said Eliza wards, reciting a mortgage by beth should receive out of the readiest rents and interest of the said the father, of securities, to her own use, £120 yearly, for her life, which was to be property not the subject of the power, to secure a portion of the trust fund lent to him; and that the father was indebted in another sum of £200, and that he had agreed to convey his equity of redemption, in consideration of B, the son, securing an annuity to his mother, and charging the equity of redemption with the debt of £200: the father conveyed the equity of redemption to B, and B charged it, and the trust property which had been apÂpointed to him, with an annuity for his mother, and with the debt of £200.-Held, in the absence of evidence of the value of the equity of redemption, that the appointment could not be impeached by A, as against a purchaser without no. tice from B. CHANCERY REPORTS. 305 augmented to £170 a-year in case of no issue of said marriage, and 1852. Chancery. that all the remaining rents, issues, interest and produce of said MILLS tenements, money, estate and effects, after payment of said jointure, v. and also the whole thereof, after the death of said Richard and said SPEAR. Elizabeth, should, in case of there being issue of said intended. Statement'. marriage two or more children, go to and amongst them in such shares and proportions, and at such ages, and subject to- such limitations and provisoes as the said R. P. T. Homer should by deed or will, to be attested by two or more credible subscribing witnesses, direct and appoint ; and for default of such appointment by the said R. P. T. Horner, then to be paid in such shares and at such ages, and subject to such provisoes and limitations as said Elizabeth should by like deed or will appoint; and for default of such appointment, to go to and amongst such issue in equal shares at their respective ages of twenty-one years, or days of marriage, with benefit of survivorship in case of their or any of their deaths. The marriage took place, and there was issue thereof two children, Anne Homer and the Rev. Richard Nugent Homer. The lands at Finglas were held under a lease from the ArchÂbishop of Dublin to Reilly Towers, for twenty-one years, with the usual toties quoties covenant for renewal. Reilly Towers sub-demised them on the 4th of May 1785, to R. P. T. Horner, with a ' covenant for renewal as often as he should obtain a renewal from the Archbishop. The lease was not renewed, and on the 26th of March 1807, the Archbishop of Dublin demised to R. P. T. Homer the lands demised by the lease of the 4th of May 1785, and comÂprised in the articles of the 5th of June 1786, together with other lands at Finglas, in consideration of a sum of £1000. ' Anne Homer married Francis Mills on the 7th of February 1815, and on the occasion of the marriage a settlement was executed, whereby the fortune of Anne Horner, which consisted of a sum of £1500 (secured by the joint bond for £1000, of the said R. P. T. Horner and Richard Nugent Horner, payable in three years, with interest thereon, and a bond of R. P. T. Horner for £500, payable within twelve months after his decease), and a sum of £2000, part of the personal property of Samuel Horner, a lunatic, was vested. in vox.. 3. 39 306 CHANCERY REPORTS. 1852. trustees. The £1000 bond was paid off, and £140 of the £500 Chancery. bond, leaving a balance of £360 due. MILLS By a deed poll, bearing date the 22nd of March 1822, under the v. SPEAR. hand and seal of R. P. T. Horner, reciting, among other things, the . marriage articles of the 5th of June 1786, and the aforesaid inden- Statement ture of settlement of the 7th of February 1815, and that £1000, part of the said marriage portion of £3500, was raised by the joint bond of R. P. T.- Horner and R. N. Horner, and that same had been since paid off and discharged, with the sum of £1000, part of the trust. fund of £4000 comprised in the articles of the 5th of June 1786, and stated to have been advanced for that purpose by William Gorman, as surviving trustee of the said articles ; and further...