Re Kinahan's Trusts and Trustee Act, 1893

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 29 April 1907
• Court: Chancery Division (Ireland)
• Docket Number: (1907. No. 275.)
• Date: 29 April 1907

In re Kinahan's Trusts and Trustee Act, 1893.

Barton, J.

(1907. No. 275.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1907.

Mortgage of equitable interest in personalty — Priority — Administrator — Notice before administration granted — Notice to trustees of original and derivative funds.

Priorities, as between mortgagees of the distributive share of one of the next-of-kin of an intestate, rank according to the dates of the notices given to the administrator after administration has been taken out. Notice given before administration has been taken out to a possible or future administrator, even if he be also the holder of a fund out of which moneys may be payable to the future administrator, are ineffectual for the purpose of obtaining priority as against other mortgagees who give notice to the administrator after he has obtained administration.

Application to fix the priorities of incumbrances affecting funds in Court. By his will Frederick Kinahan left certain legacies to Charles Albert Kinahan, and appointed his widow and his brother, John Kinahan, his executors. Frederick Kinahan died 17th March, 1902, and probate of his will was granted to the executors on the 28th May, 1902. Charles Albert Kinahan died intestate on the 4th February, 1905, before the assets of Frederick Kinahan were distributed, and letters of administration were, on the 25th of November, 1905, granted to John Kinahan, who was also one of the executors of Frederick Kinahan's will. About five-sixths of the personal estate of Charles Albert Kinahan consisted of the legacies to which he was entitled under the will of Frederick Kinahan. One of the next-of-kin of Charles Albert Kinahan was Lieutenant Frederick William Kinahan, and the net amount of the distributive share to which lie was entitled under the intestacy was £589 13s., which had been lodged in Court under the Trustee Relief Act, by the administrator, John Kinahan. The claimants against the said sum were as follows:—Daniel Jay, who claimed to be entitled to £120 under a mortgage dated 6th November, 1905, of which notice had been given to John Kinahan on 6th November, 1905;S. Bennett, £130 under a mortgage of 20th December, 1905, of which notice was given to John Kinahan on 20th December, 1905; Gordon C. Frazer, £60 under mortgage of 3rd April, 1906: notice, 3rd April, 1906; William Codrington, £87 mortgage, 20th April, 1906: notice, 21st April, 1906; Carlo Grangitano, £70 mortgage, 6th August, 1906: notice, 17th August, 1906; Pasquale Spasiano, £18 4s. mortgage of 6th August, 1906, notice 17th August, 1906; and Walter Harding, £100 mortgage, 2nd October, 1906. After 25th November, 1905, when administration was granted to John Kinahan, there was a correspondence between Daniel Jay's solicitors and the solicitors for John Kinahan, which was relied upon as notice, and which correspondence is sufficiently referred to in the judgment of Mr. Justice Barton. The main question raised was as to the validity of the notice given by Daniel Jay on 6th November, 1905, before administration was granted to John Kinahan.

Longfield, for Walter Harding, submitted that Daniel Jay's mortgage of 6th November, 1905, was postponed to the other mortgages by reason of John Kinahan, to whom notice was given, not having obtained administration to Charles Albert Kinahan until a later date. The notice given by Daniel Jay was not a valid notice at all, because at the...