Moriarty v Martin

• Jurisdiction: Ireland
• Judgment Date: 27 May 1852
• Date: 27 May 1852
• Court: High Court of Chancery (Ireland)

Chancery.

MORIARTY

and

MARTIN.

Robinson v. HardcastleENR 2 Bro. C. C. 314.

Blacket v. LambUNKENR 16 Jur. 142; S. C. 21 L.J., N.S., 46; since reported 14 Beav. 482.

Carver v. Bowles 2 Russ. & Myl. 304, 308.

Kampf v. JonesENR 2 Keen, 756.

Briggs v. Penny 3 Mac. & Gor. 554.

Malim v. Keighly 2 Ves. jun. 335.

Church v. KembleENR 5 Sim. 525.

Having regard to the contingent limitations over, and the events on which they may vest, if the Master shall find that it will be for the petitioner's benefit to take under the will, it will be necessary to retain in Court the monies that are to be levied out of the estate devised to the petitioner, to abide such order as in those events it may be right to make ; for it is obvious, that a question very differÂÂent from that before me may arise, when and if a stranger to the power shall make a claim to the accumulated fund, on the ground of election. Refer it to William Henn, Esq., the Master in the matter of Fearons minors, to inquire and report whether it will be for the benefit of the minor petitioner, Catherine Anna Fearon, that she shall take under or against the will of her father Robert Joseph Fearon, deceased, in the petition named. Reserve the question of the costs of this matter, with liberty to the parties to apply, on the return of the report, as they may be advised. 6 Reg. Lib. Gen. f. 115, 118. May 25, 26, MORIARTY v. MARTIN. 27. A testator having, under his marriage settlement, a power of apÂÂpointing a sum of 1500 amongst his children (which sum was, in default of appointment, to be divided amongst them equally), and having only two sons, H. and W., apÂÂpointed to his son H. 1, and to his son W. 1; and as to the residue, appointed the same to his son W., adding :-" I request him to have the same invested on mortgage or in the purchase of lands, and settled on himself for life, with reÂÂmainder to his child or children as he may appoint, with remainder to such child or children of my son H. as he may appoint, with remainder to my own right heirs." . The testator, out of his own property, conferred by his will other benefits upon W. '`Held-That W. was bound to elect between his rights under the settlement and his rights under the will. W. having, during his lifetime, done acts which were held to amount to an elecÂÂtion to take under the will, and having died without children, Held-That the precatory words, contained in the will, constituted a valid trust in favour of the children of H., although they were not objects of the power contained in the setÂÂtlement. Blacket v. Lamb (16 Jur. 142 ; S.. C. 21 L. J., N. S., 46, and 14 Beay. 482) commented on. Carver v. Bowles (2 Russ. & Myl. 304) considered. CHANCERY REPORTS. 27 in the county of Limerick, was assigned by the intended wife to 1852. trustees, upon trust to pay the yearly interest and dividends to Chancery . MORIART Y herself during her life for her separate use, and after her death to v. Sir Thomas Moriarty during his life, and after his death and that MARTIN. of his wife, upon trust to pay the principal and interest to such of Statement. the children of the marriage, and in such shares and proportions, as Sir Thomas Moriarty should by will appoint, and in default of appointment, equally amongst them. That settlement contained a stipulation that in the event of Sir Thomas Moriarty thereafter being able to make a secure settlement, equivalent in amount to what was settled by the indenture of 1805, then, in case of his making such settlement he should be at liberty, with the consent of the trustees, to call in and receive the said sum of 1500, and that the equivalent should be settled upon the same trusts as those of the settlement of 1805. In 1815, Sir Thomas Moriarty did purchase lands in Roscommon, which were then, and continued to the...