Pilsworth v Mosse

• Jurisdiction: Ireland
• Judgment Date: 11 November 1862
• Court: Court of Chancery (Ireland)
• Date: 11 November 1862

Rolls.

PILSWORTH

and

MOSSE.

Brennan v. Moran 6 Ir. Chan. Rep. 126.

Hooly v. Hatton 2 Br. C. C. 300 n.

Clarke v. ButlerENR 1 Mer. 304.

Weld v. Acton 2 Eq. Cas. Abr. 777.

Persse v. DalyUNK 9 Ir. Eq. Rep. 508.

Freeman v. Freeman 5 D. M. & G. 70.

Barcley v. Maskelyne 1 John. 128.

Doe d. Hearle v. HicksENRENR 8 Bing. 745; S. C., 1 Cl. & Fin. 20.

Norman v. Kynaston 7 Jur., N. S., 129.

Barklie v. Scott 1 H. & Br. 13.

Fortescue v. Barnett 3 M. & K. 36.

Bill v. Cureton 2 M. & K. 503.

Quin v. Quin 4 Ir. Jur. 178.

Snowe v. Darcy 4 Ir. Jur., O. S., 165.

Peter v. Espinasse 2 M. & K. 496.

Newton v. AskewENR 11 Beav. 145.

Creagh v. Creagh 13 Ir. Chan. Rep. 28.

Smith v. Lord Dungannon 3 Ir. Chan. Rep. 316.

Verney v. Verney 1 Ves. 428.

Richards v. Richards 1 John. 754.

Clayton's caseENR 1 Mer. 585.

Bower v. Marris Cr. & Pr. 351.

Barclay v. MaskelyneENR 1 Johnson, 128.

Clarke v. ButlerENR 1 Mer. 304.

Inglefield v. Coghlan 2 Collier, 247.

In Freeman v. Freeman 5 D. M. & G. 704.

Hearle v. Hicks 1 Cl. & F. 20.

Barclay v. MaskelyneENR 1 Johnson, 133.

Richards v. Richards 1 John. 754.

Merriman v. WardENR 1 J. & H. 376.

CHANCERY REPORTS. 163 he is unprovided for, that, by arrangement, two-thirds of the moiety 1863. Rolls. of the Government stock in Court should be transferred to his in re separate credit ; and the remaining one-third of the moiety to the .TAGza's petitioner, in full of all claims she may have in respect of the fund TRUSTS. in Court, or the future dividends. If the petitioner considers that Judgment. it is for her benefit to have that arrangement carried out, I shall make an order accordingly, declaring on the face of the order, that I consider the arrangement is for the minor's benefit. If she does not consider such arrangement is for her benefit, I shall order that the dividends on the moiety of the Government stock in Court shall be paid to her for her life ; and that the minor will, at her death, be entitled to the principal of the said moiety.' June 20, 21, 1862. 23. Nov. THE petition was filed for the administration of the real and per- A testator be queathed sonal estate of John Mosse, and was referred to Master Litton, by .£12000 among his younger an order of the 28th of January 1860, under the 15th section of children, and his household the Court of Chancery (Ireland) Regulation Act 1850. furniture and live and dead stock to such of his daughters who should attain twenty-one ; and he bequeathed other portions of his property, real and personal, to his children, and the residue of his property to his daughters. He Made a codicil to his will, commencing thus :Â"Codicil to my will of the, &c. ; four of my children having died since the execuÂtion of. said will, I alter the disposition of my property as follows." He bequeathed £4000 each to his three surviving daughters ; and in case of one dying unmarried, her portion to go to the survivors ; but in the event of more than one dying unmarÂried, her portion to go among his sons, as he was of opinion that £6000 was a sufficient portion for any girl; and he bequeathed to his two surviving sons the remainder of his property in equal proportions, of whatever kind it might consist at the time of his death. He gave certain directions as to the management of mills which he held in partnership, devised his property over in the event of his sons dying without issue, and appointed executors of the codicil, as of "his last will and testament." Held, that the bequest of the household furniture, &c., in the will was not revoked by the codicil. The intention to revoke in a codicil must be as clearly expressed as the intention to devise in the will, otherwise the codicil will not operate as a revocation. A doubt, however reasonable, is not sufficient, if the two instruments are not absoÂlately inconsistent. A father advanced £1000 in a partnership concern, for the benefit of his sons A 164 CHANCERY REPORTS. The Master, by his decretal order, made on the 5th of May 1862, declared that, according to the true construction of the will and codicil of the testator, his daughters Jane Wright, Emily Shannon, and Harriett Carter, were entitled to the bequest in said will conÂtained, of all the testator's household furniture and live and dead stock. The respondent Arthur Wellesley Mosse, who claimed the houseÂhold furniture and stock (the value of which was £3376. 18s. 7d.), as part of the property bequeathed by the codicil, appealed from that declaration, on the ground that the bequest was revoked by the codicil. The will and codicil are stated in the judgment, infra pp. 173-74. Argument. Serjeant Sullivan, Mr. Brewster, and Mr. Richey, for the appeal, contended that there was not only an express revocation by the first words of the codicil, by which the testator expressed his intention to alter the disposition of his property, and appointed executors of it as his last will and testament, but there was also an implied revo and B, reserving to himself power, if they died, to substitute two other sons for them. The partner gave credit in his books to A and B for £500 each, A and B both died under age ; and after their death the partner, by the father's direction, transferred two sums of £500 each, in his books, to C and D, two other sons, but without adding any interest or profit thereto from the accounts of A and B. The business was, by the father's directions, carried on in the partner's own name, and the profits carried in his books to his own account. Held, that there was no trust created for C and D ; that the partnership was with the father, and the share of the profits were his assets. A testator, after giving legacies to his daughters, bequeathed to his two sons C and D the remainder of his property, in equal proportions, of whatever kind it might consist at the time of his death. He directed the business of the mills of X to be carried on, and a certain sum to be applied to that purpose, and the remainder of his capital to be invested in fee-simple estates, so that each of his sons should have his portion independent of the other ; that they were not to be of age, for the purpose of his will, until they were twenty-five ; and if one died without issue, under that age, his property should go over to the other. The testator was entitled to a sum of £4061, as a partner in the mills of Y. C died under twenty-five. Held, that the profits realised on the sum of £4061, during C.'s life, belonged to him, and were not capital to be invested in land. The testator's partner in the mills of Y, after his death, paid a sum of £5421, which he appropriated to the payment, in the first instance, of the £4061 due at the testator's death, and the balance to subsequent profits. Held, that the profits realised subsequently to C's death were divisible between his representative and D. But, Semble, if there had been no appropriation by the partner, the payment would have been applicable first to the payment of the profits realised after the testator's death ; and the balance and profits subsequent to C's death would, as capital, have belonged to D. CHANCERY REPORTS. 165 cation, because the bequests in the codicil were utterly inconsistent with the bequests in the will. The codicil not only professed to dispose of, but actually disposed of, all the property of the testator. It first bequeathed legacies of £4000 each to his daughters, and then bequeathed to his sons the remainder of his property, in equal proportions, of whatever kind it might consist at the time of his death. This view was corroborated by the circumstances of the testator's family. Between the date of the will and that of the codicil, three of his daughters had died, and it became necessary for him to remodel his will ; and he did so, by substituting for the provision which he had made for them by the will, certain pecuniary bequests, which were entirely to supersede the bequests in the will ; as he was of opinion " that £6000 was enough for any girl." 1862. Rolls. PILSWORTE1 V. MOSSE. Argument. Mr. M. O'Donnell, Mr. Hemphill, and Mr. Peet, in support of the order, argued that the legacies were cumulative ; for where two legacies are bequeathed to the same person by different testamentary instruments, one by a will and the other by a codicil, as in this case, the legacies are, in the absence of extrinsic evidence, considered cumulative : Brennan v. Moran (a); Hooly v. Hatton (b). There was no express revocation of the will by the codicil ; for the codicil professed only to "alter" the will, not to "revoke" it ; nor was there any implied revocation, for there was was no inconsistency between the two instruments : Clarke v. Butler (c); Weld v. Acton (d); Persse v. Daly (e); Freeman v. Freeman (f) ; Barcley v. MaskeÂlyne (g); Doe d. Hearle v. Hicks (h); Norman v. Kynaston (i). The Master, by the decretal order, further declared that a part- Statement. nership subsisted, at the death of the testator, between the testator and Robert Pilsworth, in the mills of Rockview, the property of the (a) 6 Ir. Chan. Rep. 126. (b) 2 Br. C. C. 300 n. (c) 1 Mer. 304. (d) 2 Eq. Cas. Abr. 777. (e) 9 Ir. Eq. Rep. 508, (f 5 D.M.&G.70. (g) 1 John. 128. (h) 8 Bing. 745 ; S. C., 1 Cl. & Fine 20. (i) 7 Jur., N. S., 129. 166 CHANCERY REPORTS. said Robert Pilsworth ; according to the terms of which partnership the testator was to have one-third of the profits of said concern, and the said Robert Pilsworth two-thirds of the profits thereof ; and he declared that the said partnership was dissolved by the death of the testator. And, it appearing that the said Robert Pilsworth had carried on the said partnership business from the death of the testator to the present time ; and that, on the 25th of October 1854, the day of the death of the testator, there was due to him, out of the said copartnership, the sum of £4061. 9s. 10d. ; and that the said Robert Pilsworth traded on the said sum of...