Rochard v Fulton

CourtCourt of Chancery (Ireland)
Judgment Date31 May 1844
Date31 May 1844




Dearle v. HallENR 3 Russ. 1.

Jones v. JonesENR 8 Sim. 663.

West v. ReidENR 2 Hare, 249.

Jones v. SmithENR 1 Hare, 43.

Taylor v. BakerENR 5 PRice, 306.

Purdon v. Gumbleton Wallis, 249.

Jennings v. MooreENR 2 Vern. 609.

Merry v. Abney 1 Ca. in Ch. 38.

Forster v. CockerellENR 3 Cl. & Fin. 450.

Forster v. Blackstone 1 M. & K. 297.

Greening v. BeckfordENR 5 Sim. 195.

Skeeles v. ShearlyENR 8 Sim. 153.

Malcolm v. Charlesworth 1 Keene, 63.

Jones v. SmithENR 1 Hare, 43.

Wildgoose v. Weyland Goul. 147.

Jolland v. Stainbridge 3 Ves. 478.

Butcher v. StapelyENR 1 Vern. 363.

Foster v. BlackstoneUNK 1 M. 7amp; K. 297, 311.

CASES IN EQUITY. 131 1844. Chancery. ROCHARD v. FULTON. May 31. CHARLES JOHN EARL OF BLESSING T ON, being seized and possessed of The Count considerable estates in the county and city of Dublin and city of Kilkenny, and Countess D'O. being en and in the county of Tyrone, made his will duly attested on the 31st of titled in her right to an es- August 1825, and thereby devised and bequeathed his real and personal tate subject to estate to Alfred Count D'Orsay, Luke Norman and Alexander Norman incumbrances, a receiver was on certain trusts ; and subject thereto he gave to his daughter Lady appointed over Harriet Gardiner all his estates in the county and city of Dublin, pro- them, and he was directed vided she married Count D'Orsay ; and he gave to Lady Mary Gardiner to pay to her £400 a-year £20,000; and devised to Charles John Stuart Gardiner his estates in out of the es the county of Tyrone, and the reversion of his Dublin estates in case tates for her separate use. of the failure of male issue of his said daughters. An arrange-On the 2nd of November 1827, on the marriage of Count D'Orsay ment was en- tered into by a to Lady Harriet Gardiner, a settlement was executed by which the Earl subsequent deed, by which of Blessington covenanted that he would, within twelve calendar months the estates after the marriage, pay to the trustees of the settlement £20,000, and were settled to her separate that his heirs, executors or administrators should pay the said trustees use, subject to the further sum of £20,000 within twelve months after his decease; and certain charges in favour of it was declared that the said respective sums should, when received, be Count D'O. and others; vested in securities in trust to pay the interest to Count D'Orsay for his and until this life, and after his decease to the Countess D'Orsay ; and after the decease arrangement was completed of the survivor of them, in trust for the issue of the marriage ; and in case the allowance there should be no child of the marriage, in trust for the executors and was to be paid to Lady D'O. administrators of Count D'Orsay. Lady D'O. af- terwards mort- The marriage took place, and the Earl of Blessington afterwards died gaged the es- on the 25th of May 1829 without having revoked his will, and leaving the tates for £2100 to the Countess D'Orsay his heiress-at-law. The will was duly proved by the plaintiff, ex- executors of it. The Countess D'Orsay thereupon became entitled under cepting the £400 a-year, which was by a separate clause in the deed assigned to a trustee to secure the payment of the interest. The deed was registered as a deed of mortgage of the estates generally, and the memorial did not particularise the £400 a-year. The receiver refused to recognise the title of the trustee, but paid the £400 on Lady D'O.'s order to him. Lady D'O. afterwards borrowed £5000 from the defendant, who previously to the loan was informed by the receiver that he had heard there had been an assignment of the £400 a-year, but that he did not recognise it.- A mortgage was executed of the estates to the defendant, and the £400 a-year was assigned by a separate deed to a trustee (who bad been agent and solicitor to Lady D'O.) to secure the interest of the £5000, and an order was obtained to pay it to him ; this order was afterwards rescinded, and a bill was filed to settle the priority of the claims of the plaintiff and defendant. field, that the £400 a-year being a portion of the estate, was withÂin the Registry Act, and that the description in the memorial was sufficient to include it. Semble- That the information given by the receiver to the defendant, coupled with the memorial, was sufficient notice of the plaintiff s mortgage. The doctrine of Deane v. Hall, 3 Russ. 1, is confined to choses in action, and was not, therefore, applicable to this case. 132 CASES IN EQUITY. the will to the estates in the county and city of Dublin, and as heiress-atÂlaw, to the Kilkenny estate. The Count and Countess D'Orsay had no issue, and in the year 1831 they separated, and had since lived apart. On the 21st of January 1831, Charles John Gardiner filed a bill for the administration of the real and personal estates of the Earl of Blessing-ton, and a receiver was appointed over the estates, and a decree to account pronounced on the 7th of December 1832, declaring the will proved, and ordering the trusts of it to be carried into execution. Debts to a considerable amount were proved before the Master under this decree. On the 28th of June 1833, an order was made in the cause, referring it to the Master to inquire and report whether there were any and what funds applicable to the payment of a maintenance for the Count and Countess D'Orsay. The Master made his report on the 24th of June 1834, and on the 14th of July 1834 it was ordered that the report should stand confirmed, and accordingly that the sum of £550 (part of the sum of £950, reported to be allowed by way of maintenance to the Count and Countess D'Orsay) should be paid by the receiver of the Dublin and Kilkenny estates to the Count D'Orsay, in addition to the sum which he was entitled to be paid out of the Tyrone estates (as therein mentioned); and it was further ordered that, after payment of the said annual sum of £550 to the said Count D'Orsay, the annual sum of £400 (residue of said sum of £950) should be paid by the said receiver out of the said rents of said Dublin and Kilkenny estates in said report mentioned, applicable thereto, to the said Lady Harriet D'Orsay, for her own sole and separate use, and on her own receipt, by way of maintenance for her. By deed of lease and release of the 23rd of November 1836, acknowÂledged by Lady D'Orsay under an order of the Court of Common Pleas in Ireland, she granted and released to Thomas Henry Baker and his heirs the Dublin and Kilkenny estates, to such uses as she should by deed appoint notwithstanding her coverture, with a limitation over in default of appointment in favour of C. J. Gardiner and Lady Mary Gardiner. This deed was duly acknowledged and enrolled. By deed of lease and release of the 16th of February 1838, made between the Count D'Orsay of the first part ; the Countess D'Orsay of the second part ; Thomas Henry Baker of the third part, and VisÂcount Lord Canterbury, the Earl of Charleville, and George Hill, of the fourth part ; reciting Lord Blessington's will, the marriage of the Count and Countess D'Orsay in 1827, the death of Lord Blessington in 1829, the separation of Count and Lady Harriet D'Orsay in 1831, the order of 1834, the deed of the 23rd of November 1836, and that doubts were entertained of the validity thereof, and that in order to remove such doubts Count D'Orsay had agreed to concur with Lady CASES IN EQUITY. 133 D'Orsay in the execution of the present deed for barring all estates tail of Lady D'Orsay in the said lands, the Count and Countess D'Orsay and Thomas Henry Baker by their direction released and appointed to the Lords Canterbury and Charleville and George Hill and their heirs the Dublin and Kilkenny estates, to the use of Count D'Orsay during the joint lives of himself and his wife, or for such other estate as he would have been entitled to in his marital right or otherwise therein, but subject to the equity of the Countess D'Orsay to a settlement or allowance ; and subject thereto to such uses as the Countess D'Orsay should, notwithstanding her coverture, appoint by deed or will ; and in default of appointment to her separate use for life, and after her decease upon the trusts of the deed of the 23rd of November 1836. This deed was not executed by Thomas Henry Baker ; it was duly acknowledged and enrolled. By a memorandum of agreement bearing date the same day, and made between the Count D'Orsay of the first part ; the Countess D'Orsay of the second part ; Charles John Gardiner of the third part ; the Lords Canterbury and Charleville and George Hill of the fourth part ; reciting the rights of the Count and Countess D'Orsay and Mr. Gardiner to the estates, and that Count D'Orsay had agreed to permit Lady D'Orsay, her appointees, heirs, executors and assigns, to enjoy all real and personal estates to which, during their joint lives, she or the Count in her right might be entitled ; it was agreed that Count D'Orsay should release to the Lords Canterbury and Charleville and George Hill as trustees for Lady D'Orsay for her separate use, and to Charles John Gardiner, all his interest in the real and personal estate of the Earl of Blessington, and all his claim under the settlement of the 2nd of November 1827, to the £40,000 thereby secured ; and it was further agreed that £180,000, or such further sums as might be necessary, should be raised on the security of the Dublin, Kilkenny and Tyrone estates, for the purpose of paying off incumbrances and re-purchasing certain anÂnuities...

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