Moore. v Smith

JurisdictionIreland
Judgment Date18 December 1894
Date18 December 1894
CourtCourt of Appeal (Ireland)
Moore
and
Smith (1).

Appeal.

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.

Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 3 — Judicature Act (Ireland) 1877 (40 & 41 Vict c. 57), s.28, sub-s. 1 — Administration action — Insolvent estate.

In an action in which the estate of a testator who had died insolvent was being administered, the testator's widow claimed as a creditor of the estate in respect of a loan made by her to the deceased out of her separate estate during coverture:—

Held (affirming the decision of the Master of the Rolls), that the claim of the widow in respect of this loan was not postponed to the claims of the other creditors of the estate by the joint operation of the Judicature Act (Ireland), 1877, section 28, sub-sect. 1, and of the Married Women's Property Act, 1882, section 3.

Appeal from an order of the Master of the Rolls, dated March 16, 1894, asking that the same should be varied by ordering that the Chief Clerk's certificate referred to therein should be varied only to the extent of admitting the claim of Catherine Moore as a creditor of the estate of Thomas B. Moore, the testator in this action, for £300 instead of £900.

Thomas B. Moore, the testator, had died in insolvent circumstances. This action was brought to have his estate administered in the Chancery Division. Prior to their marriage his wife had advanced him a sum of £300, and after their marriage she had lent him out of her separate property two several sums of £200

and £400. These loans had not been repaid at the time of his death.

Before the Chief Clerk the widow claimed as a creditor of the estate for £900. This claim was disallowed by the Chief Clerk's certificate. The widow then issued a summons seeking to have the certificate varied by allowing her claim. This summons was adjourned into Court, and after argument the Master of the Rolls varied the said certificate by admitting the claim of the widow as a creditor of the estate for £900. From this order the present appeal was taken.

P. F. White, Q.C., and Rosenthal, for the appellant.

Cuming, for the respondent.

[The following cases were cited;—In re May, Crawford v. May (1); Ex parte Mills, In re Tew (2); Ex parte Taylor, In re Grason (3); Mersey Steel and Iron Co. v. Naylor (4); Re Albion Steel Co. (5); In re Knott (6); Re Maggi, Winekouse v. Wine-house (7); Re Crumlin Viaduct Works Co. (8); Lee v. Nuttall (9); Smith v. Morgan (10); In re Macfarlane's Claim (11); Scott v. Murphy (12); In re Count D'Epineuil (13); In re Bridges, Hill v. Bridges (14).]

P. F. White, Q.C., and Rosenthal, for the appellant.

Cuming, for the respondent.

Walker, C.:—

The facts of this case are not in dispute, and on the appeal a question of law only was raised.

The assets of Thomas B. Moore, who died in insolvent circumstances, are being administered in an action in the Chancery Division. Catherine Moore, his widow, claims to prove as a creditor of the deceased for a sum of £900. As regards £300, portion of that amount, which was advanced by her to her

husband before their marriage, her right was not here disputed. Two several sums, however, one of £200 and one of £400, were advanced by her to Thomas B. Moore after their marriage, and to the total of these several advances, that is the sum of £600, this appeal relates.

The claim was resisted and the appeal supported by arguments founded on the combined operation of sect. 3 of the Married Women's Property Act, 1882, and of sect. 28 of the Judicature Act (Ireland), 1877. The section of the Married Women's Property Act, 1882, to which I have referred, provides that any money lent by a wife to her husband for the purposes of his trade or business, or otherwise, shall be treated as assets of the husband in case of his bankruptcy, but reserves her right after all other creditors for valuable consideration or money's worth have been paid to prove against the estate, and be paid so far as the assets will extend. This provision, which displaces a right prima facie existing and confiscates the wife's property, is limited to the case of the husband's bankruptcy, and of itself has no application here, as Thomas B. Moore did not become bankrupt. But the appellant relies on sect. 28 of the Judicature Act (Ireland), 1877, the first sub-section of which provides that “in the administration by...

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2 cases
  • Re The Leinster Contract Corporation, Ltd
    • Ireland
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    • 20 de julho de 1903
    ...v. WinehouseELR 20 Ch. D. 545. In re RichardsELR 11 Ch. D. 676. In re Withernsea Brickworks CompanyELR 16 Ch. D. 337. Moore v. SmithIR [1895] 1 I. R. 512. Re WhitakerELR [1901] 1 Ch. 9. Scott v. MurphyUNK 13 L. R. Ir. 10. Smith v. MorganELR 5 C. P. D. 337. Whitaker's CaseELR [1901] 1 Ch. 9.......
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