Scott v Clements

• Jurisdiction: Ireland
• Judgment Date: 14 May 1858
• Date: 14 May 1858
• Court: High Court of Chancery (Ireland)

Chancery.

SCOTT

and

CLEMENTS.

Humble v. HumbleUNK 2 Jur. 696.

Spring v. StephensonUNK 1 Ir. Ch. Rep. 132.

Londesborough V. SomervilleENR 19 Beav. 200.

Warren v. Davies 2 M. & K. 49.

Marker v. KekewichENR 8 Hare, 291.

Loftus v. Swift 2 Sch. & Lef. 642.

Harrison v. CageENR 2 Vern. 85.

Playter v. Abbott 2 M. & K. 97.

Lloydd v. WilliamsENR 2 Atk 109.

Bennett v. WyndhamENR 23 Beav. 527.

Dickin v. EdwardsENR 4 Hare, 273.

Tidd v. LysterUNK 5 Mad. 429.

Green v. BelchierENRENR 1 West Cas., temp. Hard., 217; S. C., 1 Atk. 505.

In re TyndallUNK 7 Ir. Ch. Rep. 180.

Carter v. BarnardistonENR 1 P. Wms. 518.

Ackland v. Lutley 9 Ad. & Ed. 879.

Ivy v. GilbertENR 2 P. Wms. 13.

Heneage v. AndoverENR 3. Y. & J. 360.

Marsh v. Marsh 2 Jur., N. S. 348.

Anon.ENR 1 Salk. 153.

Carter v. BarnardistonENR 1 P. Wms. 505.

Wilson v. Halliley 1 Rus. & My. 590.

Taylor v. Emerson 4 Dru. & War. 117.

Omerod v. Hardman 5 Ves. 736.

Grey v. Pearson 6 H. L. Cas. 78; vide p. 106.

Warburton v. Loveland 1 Hud. & Bro. 648.

Taylor v. Emerson 4 Dru. & War. 117.

Smith v. DungannonENR 12 Cl. & Fin. 588.

Torre v. Browne 5 H. L. Cas. 556.

Jeffreson v. MoretonENR 2 Wms. Saund., 11 and note (r).

SalkeldENR Anon. (1 Salk. 153.)

Carter v. BarnardistonENR 1 P. Wms. 518.

Hutchinson v. MassereneUNK 2 Ball & B. 54.

Harrison v. CageENR 2 Vern. 85 (1).

Lord Mountford v. Lord Cadogan 19 Ves. 638.

Okeden v. OkedenENR 1 Atk. 550.

Evelyn v. EvelynENR 2 P. Wms. 291.

Ex parte Keble 11 Ves. jun. 604.

Ex parte Mountfort 15 Ves. 447.

Corbett v. TottenhamUNK 1 Ball & B. 60.

Harrison v. Duignan 2 D. & W. 295.

Townley v. Bond 4 D. & W. 240.

CHANCERY REPORTS, BEING A SERIES OF CASES ARGUED AND DETERMINED IN THE HIGH COURT OF CHANCERY, COURT OF APPEAL IN CHANCERY, ROLLS COURT AND ittinubtrtV estates Court. SCOTT v. CLEMENTS. (In Chancery.) 1858. Chancery. May 11, 12, 14. THEOPHILIIS CLEMENTS, by his will, dated the 4th of December A devised lands to trus 1804, directed his debts to be paid by his executors, and devised tees, on trust to Joseph Storey, Cosby Nesbitt and George Foster all his real and niborr)B, a Clad mh sons, in strict settlement, giving B a power of charging the lands with 5000 for younger children, " to be raised by sale or mortgage of a competent part of said lands, or out of the rents and profits." A then bequeathed legacies, amounting in all to 12,000, to his grand-daughters, and directed that his executors "should place these legacies in some of the most eligible public funds," and accumulate such portion of the annual interest of them as was not required for the maintenance, &c., of the le-. gatees. He then, after giving some small legacies, declared that if his assets, not thereby specifically disposed of, should prove insufficient for payment of his debts and legacies, " it was his will that such deficiency should be made good and supplied by his said trustees out of the annual rents and profits arising out of his said estates, which he thereby desired that his said trustees might receive and apply until such deficiency should be made good thereby, allowing, however, to his said grand-son B, so much as the said trustees should deem expedient and &ting for his education and maintenance ; " but if it should happen that there should be a surplus of his personal estate, after payment of his debts and legacies, &c., he bequeathed such surplus among his several grand-children above-mentioned. The personal estate proved insufficient for the purposes contemplated. On the death of the tesÂÂtator, B and the other grand-children were made wards of Court, and one of the executors acted as guardian. In the accounts and dealings in the matter of the minors, the legacies were treated as charged on the corpus of the estate, and B paid interest on them until he died, leaving a son, who refused to pay these charges.-Held, that only so much of the legacies as the personalty was inadequate to pay was at all charged on the real estate ; that the charge was only on so much of the rents and profits of the real estate in the years immediately following the testator's death as would have made up the deficiency ; and that B's son was not bound by the dealings in the minor matter. It is desirable that questions of construction should be settled in the first inÂÂstance, before the Master proceeds to take the accounts of an estate. VOL. 8. 1 2 CHANCERY REPORTS. freehold estates, to hold upon trust., to permit his daughter Catherine Richardson to occupy his mansion-house and demesne of Rakenny, for life, and to permit his son-in-law, Edward Lucas, to occupy the house and lands of Wood-lodge, for life. He then gave to Catherine Richardson an annuity charged upon every part of his said estates, the house and lands of Wood-lodge excepted. The will then devised all the residue of his real and freehold estates charged with the said annuity, and the reversion of the said premises of Rakenny and Wood-lodge, to the use of his grand-son Theophilus Edward Lucas, for life, without impeachment of waste, with remainder to trustees, to preserve contingent remainders, with remainder to the first and other sons of 'Theophilus Edward Lucas successively, in tail male, with divers remainders over. The will then contained a condition requiring the assumption of the name of Clements by the devisees, and then a leasing power. It next gave to Theophilus Edward Lucas a jointuring power, and gave him power to charge the said estates with 5000 for younger children ; and, in default of appointÂÂment, charged the lands with that sum for younger children, to be raised by sale or mortgage of a competent part of his estates, or by perception of the rents and profits. The will then proÂÂceeded :-" I give to my grand-daughters Catherine, Elizabeth, Mary and Louisa Richardson, daughters of my said daughter CaÂÂtherine Richardson, the sum of 5000 sterling ; and to my grandÂÂdaughter Elizabeth Richardson, I give a further sum of 2000 sterling, in addition to her share of the said sum of 5000. I give to my grand-daughters Catherine, Elizabeth and Anne Lucas, daughters of my late daughter Anne Lucas, the sum of 5000 sterling, to be equally divided amongst them ; and it is my will that the sum of 5000, which I have given to the daughters of my daughter Catherine Richardson, shall be in like manner equally divided amongst them ; and further, that my executors hereinafter named shall place those three several sums, making an aggregate sum of 12,000 sterling, in some of the most eligible public funds, or on good and sufficient landed security, and that the interest arising upon the share of each of my said grand-children shall accumulate in the most beneficial manner during their respective CHANCERY REPORTS. 3 minorities, or until the time of their respective marriages, whichÂÂever of them shall first happen, save only so much thereof as my said executors, or the majority of them, shall think necessary for the education or advancement of any or each of them ; in which case my said executors may apply the whole interest arising on any share, or the share itself, for the advancement in life of the person entitled thereto, although such person should not be then of age : and it is my will that if any of my said grandÂÂdaughters should happen to marry during her minority, my said executors shall settle the share of such grand-daughter, on her marriage, in such manner as shall seem most for the advantage of such grand-daughter." Then, after several small legacies, he proceeded :-" And if it shall so happen that my assets not hereby specially disposed of shall fail to produce a fund in the hands of my executors not* sufficient to the payment of my debts and funeral expenses, and of the several legacies before-mentioned, or which may be mentioned in any codicil or codicils which I may hereafter add hereunto, it is my will that such deficiency shall be made good and supplied by my said trustees, out of the annual rents and profits arising out of my said estates, which I hereby desire that my said trustees shall receive and apply, until such deficiency shall be made good thereby ; allowing, however, to my said grand-son Theophilus Edward Lucas, out of said rents, so much as his said trustees shall deem expedient and fitting for his education and maintenance. But if it shall so happen that, after the payment of the legacies aforesaid, and of my debts and funeral expenses, there shall remain any undisposed residue of my personal estate, I give the same, and also all undisposed residue of my real estate, to be equally divided amongst my several grand-children afore-mentioned." The will named as executors the said Joseph Storey, Cosby Nesbitt, Catherine Richardson, Edward Lucas and George Foster, and the testator died shortly after the execution of it. Catherine Richardson and Edward Lucas alone proved the will, liberty to prove being reserved to the others. The petition • Sic in original. CHANCERY REPORTS. 1858. alleged that the other executors did not act in relation to it. Joseph Chancery. Storey died in 1810, Edward Lucas in 1817, George Foster in SCOTT 1832, and Catherine Richardson in 1834, and Cosby Nesbitt V. CLEMENTS. in 1837. Statement. Upon the death of the testator, the children of Edward Lucas were made wards of Court. The said Edward Lucas was apÂÂpointed their guardian, and a receiver over the testator's estate was appointed. The receiver from time to time duly accounted in the minor matter. The testator's personal estate proved insufficient to pay off the legacies of 5000, 5000 and 2000. The petition stated various proceedings in the minor matter, and alleged that these proceedings treated the legacies as charges on the real estate. In 1824, Theophilus Edward Lucas, who had assumed the name of Clements, was discharged from the wardship of the Court, went into possession of the devised estates, and kept down the interest on the said legacies and the other...