Skelton v Flanagan

• Jurisdiction: Ireland
• Judgment Date: 24 June 1867
• Date: 24 June 1867
• Court: Rolls Court (Ireland)

Rolls

SKELTON

and

FLANAGAN.

Palmer v. WheelerUNK 2 Ball & B. 18.

Weir v. Chamley 1 Ir. Chan. Rep. 295.

In re Marsdenƒ€™s TrustsENR 4 Drew. 594.

Lord Sandwichƒ€™s Case Cited 11 Ves. 439.

Aleyne v. Belchier 1 Wh. & T. L. Ca. 339.

Salmon v. GibbsENR 3 Dr. & Sm. 42.

Humphrey v. Oliver 7 W. R. 334; 28 L. J. (N. S.) Ch. 496.

Daubeney v. CockburnENR 1 Mer. 626.

Archbold v. The Commissioners of Charitable DonationsENR 2 H. L. C. 440.

Lombard v. HicksonELR L. R. 1 H. L. 324.

Rhodes v. CookENR 2 Sim. & St. 488.

Davies v. Otty 13 W. R. 484.

Lane v. PageENR Amb. 235.

Hamilton v. Kirwan 2 J. & L. 393.

Rowley v. RowleyENR Kay, 242.

Langston v. BlackmoreENR Amb. 290.

Rowley v. RowleyENR Kay, 258.

Davis v. Uphill 1 Swanst. 130.

Sugd. Pow. p. 614.

Power — Appointment — Mortgage — Fraud on Power — Practice — Revivor.

362 THE IRISH REPORTS. Rolls. SKELTON v. FLANAGAN. 1867. Power_-Appointment-Mortgage-Fraud on Poser-Practice--Bevivor. June 1, 6, 24. - H, being tenant for life of real estate, with remainder to his children as he should appoint, and, in default of appointment, to them equally, and being indebted to F, who had obtained a receiver over his life estate, entered into an agreement with F that he and his children should join in a mortgage to secure the sum due to F, and that the receiver over the life estate should be removed. H accordingly appointed the lands to his eldest son, J, subject to certain charges for his younger children ; and H and all his children, except one, who was a minor, joined in a mortgage to F. A sale of the lands was had in the Landed Estates Court, where the personal representative of the minor, who had died without issue, and leaving her father, H, her heir at law, claimed the charge appointed to her. J, the eldest son, filed a cause petition, praying that the appointment might be set aside as a fraud on the power. To this suit the mortgagee, the father, and the younger children, or their representatives, were made respondents. No actual fraud or undue influence by H on his children was proved. Held, that J and the other children, except the minor, having concurred in the mortgage, and the real and personal representatives of the minor having conÂÂÂcurred or acquiesced in the transaction, the appointment could not be impeached; and the petition was dismissed. The death of a party respondent and the transmission of his interest must be alleged 13y suggestion or petition : it is not sufficient that it be stated or apÂÂÂpear probable that that interest has become vested in persons already parties to the suit. THE facts of this ease are stated at length in the report of the case on the hearing of the original petition (14 Ir. Chan. Rep. p. 484), and in the judgment of the Master of the Rolls. The peÂÂÂtition was amended, in pursuance of the order of the Court of Appeal in Chancery, by praying that the appointment of the 13th of May, 1854, might be set aside as a fraud on the power. The Respondent Harriet Victoria Hynes afterwards died intestate, and without issue, leaving surviving her husband Patrick Hynes, who took out administration to her, and who was a Respondent in the original and amended suits, and her father, her heir-at-law, who was also a ReÂÂÂspondent, The suit was not revived by petition or suggestion of the death of Harriet Victoria Hynes. The lands having been sold in the Landed Estates Court, it appeared that her personal repre EQUITY SERIES. sentative claimed in that Court the sum appointed to her by the deed of the 13th of May, 1854. The cause was now heard on the amended petition and answer. 363 Rolls. 1867. SKELTON v. Mr. Walsh, Q. C., Mr. Sullivan, Q. C., and Mr. Gamble, for FLANAGAN. the Petitioner, argued that the antecedent agreement with FlaÂÂÂnagan, the want of consideration or benefit to the children in the transaction, which was solely for the benefit of the father, were sufficient to avoid the appointment. The appointment was made for the purpose of the mortgage, and not bond fide for the end designed by the donee of the power : Palmer v. Wheeler (1); Weir v. ChamÂÂÂley (2) ; In re Marsden's Trusts (3) ; Lord Sandwich's Case (4) ; Aleyne v. Belchier (5); Salmon v. Gibbs (6) ; Humphrey v. Oliver (7); Daubeney v. Cockburn (8). The relief prayed by the amended petition was independent of that sought by the original petition, and might be granted, although the charge of fraud in the original petition had failed : Archbold v. The Commissioners of Charitable Donations (9) ; Lombard v. HickÂÂÂson (10). The right of Mrs. Hynes had descended to the ResponÂÂÂdent H. Skelton, and therefore the interests of all parties were represented in the suit, and there was no necessity for reviving it on the death of Mrs. Hynes. Mr. Lawson, Q. C., Mr. Harrison, Q. C., and Mr. 3PBlain, for the Respondent Flanagan, argued that the suit had become abated by the death of Mrs. Hynes, and no decree could be made in it until it was revived. There was no evidence of fraud or undue inÂÂÂfluence on the part of the father, and undue influence is not to be inferred : Rhodes v. Cook (11) ; Davies v. Otty (12). To vitiate an apÂÂÂpointment, there must be an antecedent bargain that the appointor shall derive a benefit to himself clearly and positively proved : Lane v. Page (13) ; Hamilton v. Kirwan (14); Rowley v. Rowley (15). There (1) 2 Ball & B. 18. (8) 1 Mer. 626. (2) 1 Ir. Chan. Rep. 295. (9) 2 H. L. C. 440. (3) 4 Drew. 594. (10) L. R. 1 H. L. 324. (4) Cited 11 Yes. 439. (11) 2 Sim. & St 488. (5) 1 Wh. & T. L. Ca. 339. (12) 13 W. R. 484. (6) 3 Dr. & Sm. 42. (13) Amb. 235. (7) 7 W. R. 334; 28 L. J. (N. S.) (14) 2 J. & L. 393. Ch. 496. (15) Kay, 242. THE IRISH REPORTS. was a consideration for the agreement, which enured for the benefit of the children, viz., the discharge of the receiver from H. Skelton's life estate, which enabled him the better to...