Re Bagot's Estate

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judgment Date: 20 June 1900
• Date: 20 June 1900

IN RE BAGOT'S ESTATE

Appeal.

Mortgage — Priority — Compromise of litigation in Probate Court — Sum of money paid to enable mil to be proved — Costs of suit — Mortgage for costs.

Bagot v. BagotUNKUNK 1 L. R. Ir. 308; 5 L. R. Ir. 72.

Baker v. Baker 6 H. L. Cas. 616.

Bank of Ireland v. M'CarthyELR [1898] A. C. 181.

Bell v. Bell I. R. 6 Eq. 239.

Brown v. Burdett 31 W. R. 854

Charter v. CharterELR 3 Ch. D. 218.

Conron v. Conron 7 H. L. Cas. 168.

Creagh's EstateUNK 25 L. R. Ir. 128, 139.

Dowling v. HudsonENR 17 Beav. 248.

Duffy v. Brady Milw. 582.

Foster v. SmithENR 1 Phil. 629.

Goodwin v. PrinceELR [1898] 2 Ch. 225.

Harloe v. HarloeELR L. R. 20 Eq. 471.

Hodges v. GrantELR L. R. 4 Eq. 140.

Jones v. WilliamsENR 1 Coll. 156.

Kelly v. KellyUNK 21 L. R. Ir. 243.

M'Feely v. BoyleUNK 17 L. R. Ir. 633.

Moore's EstateUNK 19 L. R. Ir. 365.

Newton v. NewtonUNK 13 Ir. Ch. Rep. 245.

Ormsby v. GoodIR [1895] 1 I. R. 103.

Re GreenELR 40 Ch. D. 610.

Re MayhewELR 5 Ch. D. 596.

Sharp v. LushELR 10 Ch. D. 468.

Simpson v. O'SullivanENR 7 Cl. & Fin. 550.

Stackhouse v. Barnston 10 Ves. 453.

West's EstateIR [1898] 1 I. R. 75, 88.

Wood v. Medley 1 Hag. 645, 656.

Young v. DendyELR L. R. 1 P. & D. 344.

496 THE. IRISH REPORTS. [1900. Appeal. IN RE BA.GOT'S ESTATE (1). 1900. May 11, 14, Mortgage—Priority—Compromise of litigation in Probate Court—Sum of 15, 16. money paid to enable will to be proved—Costs of suit—Mortgage for June 20. costs. C. N. B., by his will, left all his property to trustees upon trust that the rents and profits of his real estate (other than the house and lands of A.), and the profits of his personal estate, should be applied in payment of the charges that might affect his real estate, and all other his debts, his funeral and testamentary expenses, and all legacies and annuities given by his will, and subject thereto he directed the trustees to accumulate for twenty years the profits of his personal estate and the rents of his real estate (other than the lands of A.) so far as not required for the purposes aforesaid. The testator devised the house and demesne of A. to his brother J. L. B. for life with remainder to his eldest son for life with remainder in tail male ; reÂmainder to his brother B. W. B. for life with like remainders ; with remainder to his brother C. A. B. for life with like remainders. The trusts of the accumulating fund were to raise £20,000 for buildings at A., then to pay to each of his brothers B. W. B. and C. A. B., £5000 at such time as the trustees should think fit. He left his sister Mrs. M. an annuity of £200 a-year for her life, £100 a-year to the Protestant church at Ballygar, and. £10 a-year to the Protestant Orphan Society. Subject to aforesaid gifts, and after payment thereof, he directed his trustees to raise for W. H. N. B. £10,000 out of the accumuÂlating fund, and if that was insufficient, out of his estates which he charged therewith, to be paid to him at the age of thirty. Subject thereto, the accumulating fund was to be laid out in the purchase of real estate, and settled upon the same trusts as the lands of A. C. N. B. having died, his widow disputed the will in a suit of B. v. B., which resulted in the will being condemned. A new trial was directed by the Court of Appeal. When the case was coming on for a second trial, a compromise was effected, which was embodied in a consent, and confirmed by a private Act of Parliament. By the terms of the consent and the private Act, the estates were to be charged with £25,000 for W. H. N. B., a minor, in addition to the £10,000 given by the will, not to be raisable till the minor attained age ; £11,000 was to be paid to Mrs. It., the testator's widow, who had married a second time, and. £11,000 to K., her solicitor, for costs. The amount to be spent on building was reduced to £5000; and the costs and (1) Before PALLES, C.B., and FITZ GIBBON and. HOLMES, L.JJ Vol.. I.] CHANCERY DIVISION. expenses of the executors and trustees were to be paid out of the assets, and in case the personal estate was not sufficient, the trustees were empowered to raise the amount by mortgage of the fee of the real estates (other than A.). The two sums of £11,000 were paid to Mrs. R. and to her solicitor, and. other sums were paid out of the personal estate, which ultimately proved insufficient for payment in full of the costs. Two mortgages for costs were charged on the estates by the executors for £6000 and £6500. On the minor coming of age in 1897 a petition was presented to the Land Judge's Court to raise his charge, and a receiver was appointed. When he had collected a year's rent an application was made to the Court for an order fixing the priorities in which the rents were to be paid : Held (varying the decision of Ross, J.), that the order in which the interest should be paid was (after the annuity of £1000 a-year for Mrs. R., the priority of which was not disputed)—(1) the arrears of the three annuities, ranking poi passu, and charged on all the lands except the lands of A. ; (2) the accruing gales of the annuities ; (3) the £2.5,000 charged on all the lands for the minor ; (4) the two mortgages for costs, charged on all the lands. C. N. BAGOT, by his will dated the 7th September, 1876, devised and bequeathed all his real and personal property to Bernard William Bagot and Joseph Arthur Holmes, his trustees and executors, upon trust that the rents, interest, and annual proceeds of his real and personal estate (other than the house and demesne lands of Aughrane), and the proceeds of such chattels as might be sold pursuant to his will after his death, should be first applied in payment of the interest as the same should become due upon any charges that might affect his real estate, and next in payment of the said charges and all his other debts save as thereÂafter mentioned and his funeral and testamentary expenses, and all legacies and annuities given by his will or any codicil thereto, and subject thereto that the trustees should invest the cash from time to time in their hands, and for twenty years after his death should accumulate his personal estate, and the rents, dividends, and annual proceeds of his real and personal estate (other than the house and demesne lands of Aughrane), so as to form an accumulating fund. As to the house and demesne of Aughrane, the testator directed that his trustees should stand possessed thereof to the use of his brother John Lloyd Bagot for his life, with remainder to his eldest son for life, with remainder in tail male. And in default of such 1900—VoL. I. 2 Q 498 THE IRISH REPORTS. [1900. Appeal. issue to the use of his brother Bernard William Bagot for life 1900. with like remainders, and in default of such issue to the use of In re his brother Charles Augustus Bagot for life with like remainders; BAGOT'S ESTATE. with remainders over, and with the ultimate remainder to the testator's right heirs. The testator empowered his trustees to raise out of the accumulating fund in the first place such sum, not exceeding in the whole £20,000, as they might think fit for the purpose of building, or finishing the building of the mansion-house at Aughrane Castle. He bequeathed to each of his brothers Bernard William Bagot and Charles Augustus Bagot a legacy of £5000, such legacies to be paid at such time as the trustees deemed they might conveniently be paid out of the accumulating fund, after providing for the buildings and not before, with interest at £5 per cent. from the time of his death, and in case either of his brothers died in his lifeÂtime leaving a child or children, such children were to take in equal shares. He bequeathed to his brother John £500, and to his sister Mrs. Meagher, £500, and he also gave to his sister, Mrs. Meagher, for her life, an annuity of £300 a-year, and to his sister Letitia Bagot, for her life, an annuity of £200 a-year, and he directed that such annuities should be paid by half-yearly payments. He directed his trustees to pay £100 a-year to the support of the Protestant Church at Ballygar, and £10 a-year for the Protestant Orphan Society in Galway. And subject to the aforesaid gifts and after full payment thereof, he directed that his trustees should raise out of the accumulating fund for the child of his wife Alice Emily Bagot, which had been called William, an annual sum of £200 a-year till he attained fourÂteen years of age, and if he attained fourteen, £300 a-year till he attained twenty-one, and if he attained twenty-one that his trustees should raise out of the accumulating fund, or if the same should be insufficient, out of his estates, interest upon the sum of £10,000, which he charged thereon at £42 per cent. per annum, and should pay the interest to him till he attained thirty years of age, or if he should attain thirty, or die under that age, but above twenty-one, leaving issue, to pay to him or his issue £10,000 out of the accumulating fund or out of his estates. He declared that his wife should not be entitled to dower or thirds, as he had VOL. I.; CHANCERY DIVISION. provided for her by deed on a separation arranged between them. He then declared that subject as thereinbefore mentioned, the accumulating fund should be accumulated as aforesaid for twenty years from his death, and the trustees should invest any balance of it not required for the purposes before-mentioned in the purchase of freehold lands in Galway or Roscommon, and after the expiration of twenty years the trust for accumulation should cease, so that the income should be payable to the persons and in the manner that the rents of the lands purchased would be if the fund were then already laid out, and the trustees should settle the lands so purchased, and also the real estate thereinbefore devised, of which the rents were to be accumulated, to the same uses and subject to the same powers as were thereinbefore contained with regard to the...