Re Armstrong

• Jurisdiction: Ireland
• Judgment Date: 01 May 1894
• Docket Number: (1892. No. 788.)
• Date: 01 May 1894
• Court: Chancery Division (Ireland)

In Re Armstrong.

V.-C.

(1892. No. 788.)

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.

Jointure and portions charged on lands — Postponement of jointure in favour of mortgagee of portion — Intervening portion — Priorities.

Lands were subject to a jointure, and, as a next charge, to a sum for portions. The second appointee in date of part of the portion-money mortgaged his share, and the jointress postponed her jointure in favour of the mortgagee:

Held, that the postponement was to be treated as an equitable assignment, and that the jointress had not thereby postponed her jointure to the first appointee's share. Eights and priorities of the parties considered.

Summons by Frances Georgina Bell and her husband John Alexander Bell to vary the Chief Clerk's certificate.

Under her marriage settlement, dated the 29th December, 1834, Lady Armstrong was entitled to a jointure of £600 per annum, charged on (amongst other hereditaments) a fee-farm rent of £120 2s. 10d., and had power to appoint amongst her younger children a sum of £9000, the next charge on the property.

By deed dated the 10th April, 1865, Lady Armstrong appointed £1200 to Andrew Charles Armstrong, one of the younger children.

By deed dated the 15th December, 1875, she appointed £1120 to another son, Montague D. F. Armstrong.

By deed dated the 22nd March, 1877, she appointed the residue of the said £9000 (£6680) amongst her six remaining younger children, George Alexander Armstrong, Frances Georgina Bell, and four others in equal shares.

By deed dated the 23rd March, 1877, Montague D. F. Armstrong assigned his said portion to the Rev. William Eustace by way of mortgage, to secure the repayment of a sum of £1120, and Lady Armstrong postponed her jointure in favour of the mortgagee.

By deed dated the 12th November, 1879, Sir Edmund F. Armstrong, who was then entitled to the property for his life, mortgaged his estate to the Scottish Provident Institution to secure the repayment of a sum of £950, and Lady Armstrong on this occasion also postponed her jointure to the said loan.

The mortgage debt of £1120 became vested in Charles Graves and George Battersby.

The mortgage debt of £950 became vested in Andrew Charles Armstrong.

Lady Armstrong died on the 19th March, 1890, having by her will appointed the said Frances Georgina Bell her residuary legatee and Andrew Charles Armstrong her executor. The latter obtained a grant of probate.

George Alexander Armstrong died. Andrew Charles Armstrong was his administrator.

The fee-farm rent was redeemed under the Land Purchase Acts, and the redemption-money was, pursuant to an order of the Irish Land Commission, lodged in the High Court [see the Landed Estates Court Act (21 & 22 Vict. c. 72), s. 70], and was now represented by £2122 16s. 2d. New Consols and dividends on same.

On the petition of Andrew Charles Armstrong an order was on the 28th November, 1892, made by the Vice-Chancellor, that an inquiry be made at Chambers as to who were entitled to the funds in Court, and that the said funds be allocated in accordance with the' result of the said inquiry.

£670 only, besides interest, remained due on foot of the sum of £1200 appointed to Andrew Charles Armstrong, and £521 1s. 7d. on foot of the sum of £1120 appointed to Montague D. F. Armstrong. £805 1s. 2d. was due for arrears of Lady Armstrong's jointure.

The Chief Clerk, by his certificate filed the 2nd March, 1894, found that the persons entitled to the funds in Court were:—

1. Andrew Charles Armstrong to £670 (balance of the £1200 appointed to him) and interest.

2. Charles Graves and George Battersby to £521 1s. 7d. (balance of the £1120 appointed to Montague D. F. Armstrong) and interest.

3. Andrew Charles Armstrong, as administrator of George Alexander Armstrong, and the other appointees under the deed of the 22nd March, 1877, to the remainder in equal shares (being on account of the £6680 appointed by that deed).

The applicants now applied to have the £805 1s. 4d. arrears of jointure inserted as the first item, contending that if this sum were not required to meet the claims of Charles Graves and George Battersby, as assignees of the £1120 mortgage, and of Andrew Charles Armstrong, as assignee of the £950 mortgage, it should be paid to the latter as personal representative of Lady Armstrong,

The deed of the 23rd March, 1877, was made between Montague D. F. Armstrong of the first part, the Rev. Sir Edmund F. Armstrong of the second part, Dame Frances F. Armstrong of the third...