Moore v M'Glynn

• Jurisdiction: Ireland
• Judgment Date: 13 December 1893
• Date: 01 January 1894
• Docket Number: (1892. No. 284.)
• Court: Chancery Division (Ireland)

Moore

and

M'Glynn

V.-C.

(1892. No. 284.)

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 THEREPROM IN

THE COURT OF APPEAL.

1894.

Will — Power to trustees to arrange for the settlement of children — In case of disagreement power to umpire to determine amounts — Extent of power of trustees — Control of Court — Testator postmaster — Trustee procuring his own appointment — Personal office under Crown — Wilful default — Trustee setting up rival business.

A shopkeeper, who was also a local postmaster, by his will bequeathed all his property to his brother and son, to be held by them in trust, and to be managed by them for the benefit of his wife and children, and directed that the brother should have the right of maintenance and a salary for the management of the business, that the trustees should have power to arrange for the settlement of his children as they might determine, and that, in case they disagreed, the parish priest should have full and absolute power to determine both as to amount payable and times of payment. The testator left a widow and nine children. The trading was continued by the testator's brother, and some years after the testator's death the trustees made a valuation of the property available for distribution, and dividing the sum at which they valued it into ten equal shares, they decided that the sum representing one such share was the amount payable to one of the children. This she declined to accept.

In an action brought by her for administration of the estate, and accounts on the basis of wilful default and breach of trust:—

Held, that the powers given to the parish priest might be resorted to to explain the meaning of the power given to the trustees, and that they must be taken to have powers to determine the amounts and times of payment; but, held, that although the rule applicable to such cases of discretionary power is that the exercise of such power will not be interfered with or controlled, if it be regularly and honestly used, and although the division into equal shares was free from objection, the ascertainment by the trustees of the total amount to be distributed, which depended on the due discharge of their own duties, was subject to the investigation and control of the Court; that it was not necessary for the plaintiff to prove any breach of duty by the trustees for the purpose of having accounts taken of the trust property, the right to this resulting from the mere relation between them, and that, irrespective of the charges made against the trustees, there should be the usual administration accounts.

Soon after the testator's death his brother applied to be himself appointed postmaster. In his application he stated that the testator had bequeathed all his property in trust to him and the testator's son, for the benefit of the testator's wife and children, and that, if the applicant were appointed the business would be carried on in the same premises. The brother was appointed postmaster, and he retained the post office on the testator's premises, and managed same in conjunction with the testator's other business for some years, when he set up in business for himself in the same town, and transferred the post office to his new premises:—

Held, that the brother was absolutely entitled, for his own benefit, to the emoluments of the office of postmaster; that there could not be anything like a graft upon the former term of it for the benefit of the testator's assets, or any liability on the part of the officer to account for its profits; that he had a right to transfer the post office to his own premises, and that the utmost of his liability would be payment of compensation for the use and occupation of the office in the premises of the testator.

The liability under a mere direction to account on the basis of wilful default does not apply to possible loss of profits in trading occasioned by the setting up by a trustee of a rival business.

A plaintiff seeking relief against wilful default must allege in his pleading some specific act of wilful default, or, at least, make a strong case for inquiry.

A trustee of a will carrying on the business of his testator is not guilty of a breach of trust in setting up for himself in a similar line of business in the neighbourhood, provided that he does not resort to deception, or solicitation of custom from persons dealing at the old shop. A trustee and manager of a business removed, however, under such circumstances from being such trustee and manager.

Action for the administration of the real and personal estate of William M'Glynn, deceased, and for other relief, including an injunction.

The statement of claim alleged:—William M'Glynn of Clara, in the King's County, made his will, dated the 24th November, 1887, and thereby bequeathed all his property to his brother Edward M'Glynn and his son Patrick Joseph M'Glynn (the defendants) in trust to be managed for the benefit of his wife and children; and he directed that his said brother should have a right of maintenance and lodging in his house, and that he should receive an annual salary of £60 and interest at £5 per cent. on moneys of his own invested in the business carried on by the testator, and he appointed the defendants executors and trustees of his will. The testator died on the 28th November, 1887, leaving his widow, Ellen, and nine children, including the said Patrick Joseph and the plaintiff Hannah, who married Thomas Moore in February, 1891. Four of the children are still under age. The deceased left considerable property, the exact particulars of which are unknown to the plaintiff, as the defendant Edward M'Glynn refused to give her any information. The greater part of the personal estate of the deceased was invested in a grocery and hardware business, carried on by him at Bridge-street, Clara; he had a valuable stock-in-trade, and the good-will of the business was worth a good deal; he had an interest in the premises in Bridge-street, and in some farms, of which the plaintiff is unable to state the tenure; he was also local postmaster, and had his office in the Bridge-street premises. The will was proved by both defendants, but Patrick Joseph M'Glynn never took an active part in the management of the property, which management was entirely assumed by Edward M'Glynn, who since the death of the testator carried on the business, and, relying on his position as trustee, had himself appointed local postmaster. About twelve months before action Edward M'Glynn opened in Clara a rival hardware and grocery business; in this business he invested a considerable portion of the property of the testator, and transferred the post office to the premises in which he carries on the rival business, and caused considerable injury to the trust business, from which the plaintiff charges he still draws his salary. The said defendant never furnished any account of his management of the trust property, and refused to do so; the plaintiff received a sum of £10 only out of the assets. The said defendant, by his wilful default and breaches of trust, reduced the value of the property of the deceased; Patrick Joseph M'Glynn never interfered to prevent the action of his co-trustee.

The plaintiff claimed:—(1) An account of the real and personal estate of the deceased, which the defendants had, or without wilful default might have received. (2) An account of the profits of the business of the deceased carried on in the Bridge-street premises. (3) An inquiry what portion of the trust property had been invested by Edward M'Glynn in his own business, and a declaration that same was bound by the trusts of the will. (4) Removal of the defendants from the position of trustees, and the appointment of new trustees, and the removal of Edward M'Glynn from the management of the business, and the appointment of a receiver and manager. (5) Administration of the real and personal estate of the deceased, and costs of action against the defendants.

The defence stated:—William M'Glynn left personal property, amounting in value to £1926 3s. 9d., which consisted of stock-in-trade, good-will of business, shop debts, cash, and the saleable interest of two farms held by him as tenant from year to year, and he was seized of a house and premises in Bridge-street, held under a fee-farm grant, the value of which is estimated at £250. The deceased owed debts to the amount of £2272 9s. 2d.; the defendants were always ready to give full particulars of assets and liabilities. The defendants entered into possession of the property, and Edward M'Glynn managed the same down to February, 1891, since which date Patrick Joseph M'Glynn managed it. The defendants deny that Edward M'Glynn was appointed postmaster as trustee, or by reason of his being trustee of the will, or that he made use of his position as such to have himself appointed. Since February, 1891, he carried on business on his own account, and not as trustee, in the town of Clara; but the defendants deny that any portion of the property of the testator was invested therein, and say that the said business was begun and was carried on by Edward M'Glynn, with his own money, and in premises of which he is tenant beneficially and not as trustee; he has, since February, 1891, ceased to manage the business of the testator, or in any way interfere therewith, and has not since that date drawn or been paid any salary for such management. The defendants deny that the business now carried on by Edward M'Glynn has injured the business of the testator. Further, it was provided by the will that the defendants, as trustees, should have power to arrange for the settlement of the said testator's children as they might determine, and in case they disagreed, he willed that the parish priest, the Rev. M. Gaffney, should have full and absolute power to determine both as to the amounts...