Reilly v Fitzgerald

• Jurisdiction: Ireland
• Judgment Date: 02 December 1843
• Date: 02 December 1843
• Court: Court of Chancery (Ireland)

Chancery.

Reilly

and

Fitzgerald.

(Chancery.)

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

By a marriage settlement, after reciting the intended marriage, and that the father of the lady, “for the purpose of securing a provision for her by way of jointure in case she should survive her intended husband, and of providing for the issue of the marriage, had agreed to secure a sum of £4800 as her portion, in the manner thereinafter mentioned;” the father, in pursuance of that agreement, conveyed certain lands of which he was seized in fee subject to a mortgage, to trustees for ninety-nine years to raise £1000, part of the £4800, and pay it to the intended husband for his own use, and to allow him to receive the interest on £1300, further part of the £4800, for his life; and if his intended wife should survive him, to let her receive the interest during her life, and then to pay the principal to the executors or administrators of the intended husband. If there should be any child or children of the marriage, the trustees were then directed to raise a sum of £2500, residue of the £4800, and pay it to the children, if more than one, in such shares and at such times as the intended husband should appoint; and in default of appointment, to pay it to them in equal shares, if more than one, and if but one, the whole to such one at twenty-one or marriage, subject, however, to a life interest in that sum, which was thereby given to the intended husband: and it was declared that if there should be no issue of the marriage, the £2500 should not be raised. There was only one child of the marriage, and he died a few days after his birth, in the lifetime of his father.

Held, upon the construction of the settlement, that the child took a vested interest in the £2500 on his birth, and that his personal representative was entitled to have it raised out of the estate.

Held also, that when a suit has once been instituted for the purpose of raising a sum of money bearing interest, the Court has no jurisdiction to withhold from the plaintiff the interest which accrues after the filing of the bill, on the ground of laches in the prosecution of the suit, however gross.

Upon the trial of an issue directed in the cause, to ascertain whether the child was born alive or not, evidence was given of declarations made by members of the family shortly after the child's death.

Held, that this evidence was properly receivable, and that the period after which declarations respecting matters of pedigree cease to be admissible in evidence, is the arising of a controversy respecting those matters, and not the existence of the state of facts out of which that controversy arises.

By indenture, bearing date the 26th of September 1795, made between Thomas Fitzgerald and Lucinda his daughter of the first part, Charles Augustine Fitzgerald of the second part, and Charles Fitzgerald and Henry Moore of the third part, reciting the title of Thomas Fitzgerald to the lands of Corbally in the Queen's County, and the glebes and tithes of the parish of Fecallen, subject to a mortgage for £2000 to a person named Nicholas Goslin; and reciting that Thomas Fitzgerald, in consideration of a marriage then intended between his daughter Lucinda and C. A. Fitzgerald, “and for the purpose of securing to the said Lucinda, in case she should survive her said intended husband, a competent provision by way of jointure, and for the purpose of providing for the issue of said intended marriage, had agreed to secure a sum of £4800 as the portion of Lucinda, in the manner and subject to the limitations, restrictions and appointments thereinafter mentioned.” Thomas Fitzgerald, in pursuance of that agreement, conveyed the lands of Corbally, and the glebes and tithes of Fecallen, to Charles Fitzgerald and Henry Moore for ninety-nine years, upon trust thereout to raise a sum of £1000, which was to be deemed a part of the £4800, and pay it to C. A. Fitzgerald for his own use; and upon further trust to permit C. A. Fitzgerald to receive, out of the property during his life, an annual sum of £78, being equivalent to the interest on £1300 at £6 per cent., until that sum should be raised; and after his decease, if Lucinda should survive him, to pay to her the annual sum of £78 during her life, in addition to a jointure of £100 thereby provided for her and charged upon other lands; and after the decease of Lucinda, and of Thomas Fitzgerald her father, to raise the sum of £1300, and pay it to C. A. Fitzgerald, if living, and if he should be dead, to his personal representatives.

The further trusts of the term were declared to be, that in case there should be a child of the marriage, whether a son or a daughter, or in case there should be one or more child or children of the marriage, whether a son or sons, or a daughter or daughters, other than an elder or only son, then the trustees should raise the further sum of £2500, residue of the £4800, “To be paid in manner following, that is to say, if there should be but one such child, whether a son or daughter, the whole of said sum of £2500, to be paid to such only child; and in case there should be but one child, other than and except an eldest or only son, then the whole of said £2500 to be paid to such only child; and in case there should be two or more such children, excepting an eldest or only son, then the said sum of £2500 to be shared and divided amongst them in such shares and proportions, and to be paid and payable to such only child or only son, or to and amongst such children, if there should be more than one, at such time and times as said C. A. Fitzgerald, by any writing or writings under his hand and seal, duly attested by two or more credible witnesses, or by his last will and testament in writing, to be by him signed and published in the presence of the like number of witnesses, should direct or appoint; and in default of any such direction or appointment, then said sum of £2500 should be paid to such child, if but one, and if more than one, should be equally divided amongst them, share and share alike: the said portion or portions in default of appointment to be paid or payable to such of them as should be a son or sons, at his or their respective age or ages of twenty-one years, and to such of them as should be a daughter or daughters, at her or their age or ages of twenty-one years, or day or days of marriage, which should first happen, if such respective times should happen after the decease of Thomas Fitzgerald and C. A. Fitzgerald; but if they should happen during the lifetime of either, then in three calendar months after the death of the survivor: it being thereby declared to be the meaning of the parties, that the £2500, or the interest thereof, should not be raised in the lifetime of Thomas Fitzgerald; and that after his decease C. A. Fitzgerald should be entitled to receive the interest of it during his life, in case there should be any issue “of the marriage.” The settlement then contained a provision, that the share of any younger child dying, or becoming an eldest son, before his or her share became payable, should go to the survivor; and a declaration that if there should not be any issue of the marriage, no part of the £2500 should be raised.

The marriage was shortly afterwards solemnised, and there was issue of it one son, Thomas, who died in a few days after his birth. Lucinda Fitzgerald died on the 24th of August 1796, shortly after the death of her son. Thomas Fitzgerald, her father, died in September 1803, and C. A. Fitzgerald died in November 1803.

C. A. Fitzgerald, by a deed dated the 25th of January 1798, assigned the £1000 to which he was entitled absolutely under the marriage settlement of 1795, to Augustine Fitzgerald, to whom he was then indebted in the sum of £1122. 0s. 6d.; and Augustine Fitzgerald, on the 14th of May 1800, filed a bill in the Court of Chancery for the purpose of raising the sum of £1000, thus assigned to him, but no proceedings were had in that suit.

C. A. Fitzgerald, by his will, appointed Augustine Fitzgerald, the plaintiff in that suit, one of his executors; and he having proved the will, on the 14th of March 1806, filed an amended bill and bill of revivor, stating that there was issue of the marriage of Lucinda and C. A. Fitzgerald, one son, who died a few days after his birth; alleging that Thomas Fitzgerald had died intestate, and bringing before the Court his heiress-at-law Frances Baldwin, and a person named Elizabeth Keith, as his personal representative, stating the trusts of the deed, and also stating that C. A. Fitzgerald had not received the interest on the £2500, and praying that the £1000, the £1300, and the interest upon the £2500, which became due during the life of C. A. Fitzgerald, might be raised and paid to him. An answer was put in to that bill by Frances Baldwin, denying that there was any issue of the marriage of Lucinda and C. A. Fitzgerald, and alleging that Lucinda had given birth to a still-born child, and that she died shortly afterwards.

After the death of Thomas Fitzgerald, the father of Lucinda, various conflicting claims had been set up to the inheritance of the lands and tithes, upon which the £4800 was charged. He had made a will on the 12th of December 1800, by which he devised all his property, subject to his debts, and certain legacies and annuities, to any child or children Eliza Keith, a woman with whom he cohabited, should have by him; and if she should have no issue by him, then to his natural son, Edward Fitzgerald, in fee. After the execution of that will, he executed a deed dated the 4th of November 1802, by which he purported to convey the lands of Corbally, and the glebes and tithes, to a person named William Turner, upon trust to pay him, Thomas Fitzgerald, an annuity of £600, during his life, and after his decease to pay £100 a-year to Dorothea Fitzgerald, his wife, during her life; and also to pay a sum of...