Smith v Smith

• Jurisdiction: Ireland
• Judgment Date: 09 July 1877
• Date: 09 July 1877
• Court: Chancery Division (Ireland)

CHANCERY DIVISION.

SMITH

and

SMITH.

Biggs v. SadlierENR 10 Ir. Eq. R. 522; 4 H. L. C. 436, 461.

Barham v. The Earl of ClarendonENR 10 Hare, 126.

Massy v. TraversUNK 10 Ir. C. L. R. 459.

In re Browne's Estate 13 Ir. Ch. R. 283.

Thompson v. Simpson 1 Dr. & W. 489.

Burrowes v. GoreENR 6 H. L. C. 907.

Life Association of Scotland v. Siddall 3 De G. F. & Jo. 58.

Petre v. PetreENR 1 Drew. 371, 397.

Archbold v. ScullyENR 9 H. L. C. 360.

Philips v. Pennefather I. R. 8 Eq. 474.

Harcourt v. WhiteENR 18 Beav. 303.

Trent v. HanningENR 10 Ves. 495; 7 East, 97.

Anthony v. ReesENR 2 Cr. & J. 75.

In re Phene's TrustsELR L. R. 5 Ch. App. 139.

Whittuck v. WatersENR 4 C. & P. 376.

R. v. ErithENR 8 East, 539.

Sibbering v. The Earl of BalcarrasENR 3 De G. & Sm. 735.

Scott v. Nixon 6 Ir. Eq. R. 8; 2 Con. & L. 185.

Lee v. Johnstone L. R. 1 Se. App. 426.

Carey v. Cuthbert I. R. 7 Eq. 542.; 8 Eq. 330.

Harcourt v. WhiteENR 28 Beav. 308.

M'Donnell v. WhiteENR 11 H. L. C. 578, 579.

Gratrex v. Homfray 6 Ad. & Ell. 206.

Life Association of Scotland v. SiddallENR 3 De G. F. & J. 58.

Petre v. PetreENR 1 Drew. 371.

In re Wiltshire Iron Company, Ex parte PearsonELR L. R. 3 Ch. App. 443.

Land Credit Company of Ireland v. Lord FermoyELR L. R. 5 Ch. App. 763.

Hilliard v. EiffeELR L. R. 7 H. L. 48-50.

Stewart v. ForbesENR 16 Sim. 433.

Gosset v. Howard 10 Q. B. 452.

Sturgis v. MorseENR 28 Beav. 398; C. S. on appeal, 2 De G. F. & Jo. 223.

Coates v. Kenna Ir. R. 7 Eq. 113.

Statute of Limitations Express trust purchaser for value Evidence Lost deed Memorial Family reputation for non0genealogical purpose Survivorship Rehearing of appeal upon new evidence before decree made up Further rehearing after decree by consent without authority Enrolment of decree.

Ch. App. SMITH v. SMITH. 1876. Nov. 22-24. 1877. Feb. 21. June 12. July 5,9. Statute of Limitations-Express trust-Purchaser for value-Evidence-Lose deed-Memorial-Family reputation for non-genealogical purpose-Sur.. vivorship-Rehearing of appeal upon new evidence before decree made up-. Further rehearing after decree by consent without authority-Enrolment of decree. 1. A testator, having in 1803 appointed his brother R. and his son W. trustees of his will, directed them to set his freehold lands for such term as they should think advisable, and that W. should receive the rent upon certain trusts for the benefit of himself and the testator's other children. W. executed the trusts till his death in 1818, when his eldest son H. entered into possession of the whole rent, and on his death was succeeded by his eldest son the Defendant. In 1875 one of the cestuis que trust, who was also a grandson of the testator, having filed a bill for an account :- Held (in opposition to the Vice-Chancellor's ruling upon this point, which, however, was not necessary for His Honor's ultimate decision dismissing the bill), that evidence of family reputation, offered by the Plaintiff and not conÂÂtradicted by the Defendant, was admissible to prove that W. survived his uncle and co-trustee R. ; so that even assuming, upon the construction of the will, the legal estate to have vested in them both, the Plaintiff was entitled to recover, as the trust was express under s. 25 of the Statute of Limitations, but, under the circumstances, the account should not go behind the filing of the bill. 2. To prove a conveyance for value, within the meaning of the 25th section, the Defendant offered as evidence of a lost settlement the memorial of a deed dated in 1831, the parties to which were H. of the first part, X and his daughter A., " spinster," of the second part, and two trustees of the third part, whereby H. conveyed the lands upon certain trusts, which were not, howÂÂever, disclosed by the memorial ; it was also proved that H. (who, in 1828 had leased all the lands for lives perpetually renewable) had married A. in 1831, and till his death, in 1862, and thenceforward the Defendant, had been continuously in undisputed possession and receipt of the rent for his own benefit : Held, that it might be inferred that the lost deed was a settlement executed on the marriage of H. and A., but (reversing the decision of the Vice-ChanÂÂcellor) not that the Defendant was a purchaser under it. Per BILL, C.-To infer from subsequent events that a particular limitaÂÂtion was contained in a lost deed, the events must be inconsistent with any other hypothesis. Vol,. 1.] CHANCERY DIVISION. 207 3. Application for the rehearing of an appeal upon new evidence, before the Ch. App, decree was made up, granted, upon the terms of paying costs. . 1876 4. Where a decree, made upon the consent of the Respondent's counsel with- SMITH out authority, omitted to state that it had been made by consent, and the client I had. proceeded to enrol it for the purpose of an appeal to the House of Lords, SMTH. the Court of Appeal in Chancery refused to permit the completion of the enrolment, but allowed a rehearing, upon payment of the previous costs. APPEAL by the Plaintiff, Henry Smith, from a decree of the Vice-Chancellor, of the 26th of May, 1876, dismissing the bill with costs. The hearing below is reported Ir. R. 10 Eq. 273. The bill was filed on the 15th of November, 1875, and its material statements were as follow : Henry Smith, late of Ballycragh, in the county of Dublin, farmer, being seised in fee-simple, subject to a small fee-farm rent, of the lands of Stocking-lane, containing about twenty acres, in the same county, by his will of the 12th of June, 1803, after proÂÂviding for the payment of his debts, directed that his trustees should immediately after his death set the premises at the best procurable rent, " hereby giving unto my said trustees full power to make one or more leases of the same, for such term as they in their discretion shall deem advisable." He further directed that the rent arising from the said farm should be received by his son William Smith, upon trust, first, to pay the head rent, and seÂÂcondly, an annuity of 40 to the testator's wife and his daughter Catherine during the life of the former. The will then proceeded: "And I will and direct that the residue of the profit rent to arise out of said farm of Stocking-lane shall be yearly and every year equally divided amongst my sons Robert, William, Henry, and John, share and share alike, during their natural lives; and from and after the death of my son Robert, my will is that his share or proportion of said rents shall go to my grandson Henry Smith (son of my son William) and his issue, lawfully to be begotten, for ever. And from and after the decease of my son John Smith, my will is that his share and proÂÂportion of said profit rent is to go to and be divided between my sons William Smith and Henry Smith, in equal shares and proportions, as tenants in common, which, together with the shares or proportions of said profit rent before bequeathed to them by this my will, I give, devise, and bequeath to them and each of them, their and each of their lawful issue, for ever ; but in case my grandson Henry shall not survive my son Robert, or shall die without lawful issue, then my will is that the portion bequeathed to him shall be equally divided between such of my said sons as shall survive, share and share alike, 208 LAW REPORTS (IRELAND). [L. R. I, Ch. App. and to remain to my son John, if he be one of them, for life only ; to my sons -- 1876. - William and Henry for ever." After further charging the lands with a life annuity of 10 for his daughter Catherine, in case she should survive her mother or marry with specified consent, the testator appointed his brother Roger and his said son William to be his trustees and executors, and they both proved the will in 1804. The testator, whose debts were inconsiderable and all paid soon after his death, was survived by the beneficiaries named in his will, and also by another daughÂÂter, Martha, then the wife of John White. Henry Smith, the Plaintiff's father, was (the bill stated) the eldest of the four sons. William, the trustee, received the rents of the farm and applied them according to the trusts of the will, until his death. The widow and Catherine received their annuities during their reÂÂspective lives ; and the latter, who survived her mother, married Cornelius Alcock, and died in 1866. Robert died in 1818, when his one-fourth of the rents became payable to the testator's grandson Henry (son of William), who died in 1862, leaving the Defendant William Smith his eldest son 'and heir-at-law entitled to that one-fourth. John died in 1846, when his one-fourth became divisible between his brothers Henry and William and their issue ; so that at the filing of the bill one-half of it was payÂÂable to the Defendant and the other half to the Plaintiff, the eldest son of Henry, who had died intestate in 1863, when the Plaintiff also became entitled to his original one-fourth. William Smith, the trustee, died on the 1st of February, 1818, when his one-fourth devolved upon his eldest son and heir, Henry, upon whose death the Defendant entered into receipt of the whole of the rents. The bill further stated that the testator's brother Roger had died a long time before his co-trustee and co-executor William ; that all the testator's real and personal estate except the farm of Stocking-lane had been duly administered and his debts and legacies paid, and that nothing remained to be done under his will but to declare and establish the Plaintiff's right to his share of the farm. The bill prayed that the Plaintiff might accordingly be deÂÂclared entitled to one-fourth and one-eighth of the profit rents of Vol.. I.] CHANCERY DIVISION. 209 the premises, and that the Defendant might be declared to be a Ch. App. trustee for him of such shares ; and for an account since the death 1876. of the Plaintiff's father ; with consequential relief. SMITH The Defendant was interrogated, and by his answer admitted SMITH. (among...