Roche v Roche

• Jurisdiction: Ireland
• Judgment Date: 22 April 1892
• Date: 22 April 1892
• Court: Chancery Division (Ireland)

probate.

Appeal.

ROCHE

and

ROCHE.

Shevlin v. M'GranceUNK 17 L. R. Ir. 271.

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

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

Gillooly v. PlunkettUNK 9 L. R. Ir. 324.

O' Brien v. Lewis 11 W. R. 973.

Lloyd v. MasonENR 4 Hare, 132.

In re Jennings 15 L. R. Div. 495.

Faithfull v. Ewen 7 Ch. Div. 495.

Fitzsimon v. White 17 L. R. R. I.223.

Shevlin v. M'Grane UNK 17 L. R. Ir. 271.

Re White Ibid. 223.

Cowell v. Simpson 16 Ves. 275.

Brownlow v. Keatinge 2 Ir. Eq. R. 243.

In re TaylorELR [1891] 1 Ch. 590.

Faithfull v. Ewen 7 Ch. Div. 495.

Greer v. Young 24 Ch. Div. 545.

Shevlin v. M' Grane 17 L.R. Ir. 271.

Re White Ibid. 223.

Charlton v. Charlton 52 L. J. Ch. 971.

Pilcher v. Arden 7 Ch. Div. 318.

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

MacDougal v. PatersonENR 11 C. B. 755.

Harrison v. HarrisonELR 13 P.D. 180.

Dallow v. Garrold 14 Q.B. Div. 543.

Knutsford Estate Co.ELR 13. Q. B. Div. 666.

Coal Co. v. Midland Waggon Co. 7 Ch. Div. 500.

Costs — Statutory line of solicitor — "recovered and preserved" — Lapse of time — Alteration of rights pf parties — Subsequent litigation —39 & 40 Vict. c. 44, s.3.

Von. TXTX.1 CHANCERY DIVISION. I 'do not say that the power authorised any purchase of shares, even preference shares fully paid up, but I do not wish unnecessarily to base my judgment on that wider ground. Having regard to the loose use of the term " securities" in Acts and Orders which may be legitimately referred to by trustees as, at the least, authoritative illustrations of the meaning of the terms employed, I cannot think that a trustee should necessarily be held liable for taking " securities " in a deed to include investments which ParÂliament and the Judges had described by that term in Statutes and Rules of Court. By what terms, and under what limitations, if at all, a purÂchase of shares-the purchase of an interest in property, or the purchase of a commodity-can be justified as an investment of money upon security, must be left, so far as I am concerned, open to future discussion. Here and now, my judgment rests on the purchase of shares not fully paid up. BARRY, L. J., concurred. Solicitor for the plaintiff : D. Dunford. Solicitor for the defendants : Golfer. R. D. M. ROCHE v. ROCHE. Probate. Costs-Statutory lien of solicitor-Property " recovered and preserved"- 1892. Lapse of time -Alteration of rights of parties-Subsequent litigation- March 11. 39 (5, 40 Viet. c. 44, s. 3. In 1883, K., acting as solicitor for Mary and Catherine R., succeeded in eetablishing the will of Edmond R., their father, after two suits in the Court of Probate, in the former of which Mary and Catherine R. were declared entitled to their costs out of the assets, and in the latter they were declared entitled to their costs out of the assets in default of payment by the defendant in that suit. This defendant did not pay these costs. In the month of August, 1884, Mary and Catherine R. changed their solicitor, and on the 24th August, 1884, they executed a mortgage of the assets, which consisted of leasehold property, to B. for £200. In December, 1884, K. obtained judgment against Mary and Catherine R. for the amount of his costs, which he registered as a mortgage against the Appeal. April 22 LAW REPORTS (IRELAND). [L. R. I. property on the 23rd December, 1884. In 1884, Mary and Catherine It. presented a petition for sale to the Landed Estates Court of the chattels real ; and in 1886 an action was brought against them in the Chancery Division to administer the assets. In the course of the action for adminisÂtration Mary It. and Catherine R. were found debtors to the estate in the sum of £583, and the case was about being heard on further consideration of the Chief Clerk's certificate. In March, 1892, K., who had not been paid his costs of the litigation in the Probate Court, applied for an order under 39 & 40 Vitt. c. 44, s. 3, for a charge on the assets for the amount of his costs : Held, by Warren, J., and the Court of Appeal, that, having regard to the lapse of time, and the several events which had happened since the will was proved, affecting the rights and interests of the parties interested in the assets, K. was not entitled to a charge for his costs. EDWARD ROCHE, by his will dated May 8, 1883, appointed his daughters Mary and Catherine residuary legatees, with a direction to maintain and educate Robert, Edward, and Kathleen Roche, grandchildren of the testator, until they should attain the age of twenty-one respectively. After the death of the testator his will was propounded by Mary and Catherine Roche. It was unsuccessfully conÂtested on two separate occasions, first by William Roche, the eldest son of the testator, and afterwards by Joseph Roche, a younger son. By a decree of the 13th November, 1883, made in the first cause, it was ordered that Mary and Catherine Roche, as plaintiffs, should be entitled to their costs out of the assets of the deceased; and by a further decree, dated March 18, 1884, made in the second cause, it was ordered that the defendant Joseph Roche should pay to the said plaintiffs the general costs of the second cause (less by a certain sum therein mentioned), and that in the event of such costs not being recovered from Joseph Roche, the said plaintiffs should be entitled to have such costs paid out of the assets of the deceased. These costs were never recovered from Joseph Roche. On the 29th April, 1884, administration with the will annexed of the estate and effects of the testator was granted to Mary and Catherine Roche. Mr. Kavanagh acted as their solicitor in all these proceedings, and his costs of the probate proceedings of obtaining the grant of administration, and of three wills drawn up by him for the testator XXIX.] CHANCERY DIVISION; 341 previous to his death, when taxed and ascertained, were'certified Probate. to amount to the sum of £619 2s. 6d. In August, 1884, Mary 1892. a ROCHE .and Catherine Roche changed their solicitor. v. On December 6th, 1884, Mr. Kavanagh obtained judgment ROCHE. for his certified costs, and on the 23rd of the same month registered same as a mortgage against the interest of Mary and Catherine Roche in the estate of the deceased. On the 19th August, 1884, Mary and Catherine Roche, in 'consideration of £200, mortgaged the estate to Daniel Burke ; and in the same year they presented a petition to the Land Judges' Court for the sale of the leasehold property of the testator (which practically constituted the whole estate), and the same was sold in the said Court, and by an order made in the matter it was ordered that the amount realized by such sale should be transferred to the credit of an action instituted in 1886 in the Chancery Division (Record 1886, No. 8258) before the Vice-Chancellor, wherein Robert Roche, Edward Roche, and Kathleen Roche, infants, the grandchildren of the testator, were plaintiffs, and Mary and Catherine Roche were defendants, for the purpose of administering the estate of the said deceased. By the certificate of the Chief Clerk of the...