Smith v Smith

• Jurisdiction: Ireland
• Judgment Date: 01 July 1887
• Date: 01 July 1887
• Docket Number: (1887. No. 8957.)
• Court: Chancery Division (Ireland)

CHANCERY DIVISION.

(1887. No. 8957.)

SMITH

and

SMITH

Burrell v. Lord EgremontENR7 Beav. 205.

Wyndham v. Lord Egremont Ambl. 753.

Sterne v. Wolfe Wallis, by Lyne, 167.

Walpole v. M'Clintock7 Ir. Eq. R. 353.

Wigsell v. WigsellENR2 Sim. & St. 364, 369.

Trevor v. Trevor2 M. & K. 675.

Clifford v. CliffordENR9 Hare, 675.

Gower v. GowerENR1 Cox, 53.

Purcell v. Purcell5 Ir. Ch. R. 502.

Grice v. ShowENR10 Hare, 76.

Lord Norbury9 Ir. Eq. R. 171, 524.

Fausset v. Carpenter2 Dow. & Cl. 232.

Barford v. street16 Ves. 135.

Johnson v. Webster4 D. M. & G. 474.

Tyrwhitt v. TyrwhittENR32 Beav. 244.

Lord Norbury9 Ir. Eq. R. 171, 524.

Burrell v. Lord EgremontENR7 Beav. 205.

Barford v. street16 Ves. 135.

Hughes v. Wells9b Here, 767.

Barford v. street16 Ves. 135.

Wigsell v. WigsellENR2 Sim. & St. 368.

Drinkwater v. CombeIbid. 345.

Howorh v. DewellENR29 Beav. 18.

Brook v. Brook3 Sm. & J. 280.

Mortlock's TrustsENR3 K. & J. 456.

Long v. LaneUNK17 L. R. Ir. 11.

Walpole v. M'Clintock7 Ir. Eq. R. 353.

Charge Estate for life, with general power of appointment Merger.

SMITH v. SMITH. (1887. No. 8957.) Charge-Estate for life, with general power of appointment--Merger. H. S., by his marriage settlement, assigned a sum of 7500 to trustees, in trust for himself for life, and after his death for his wife for life, and after the deaths of both in trust for all the children of the marriage, in such shares, &c., as H. S. should, by deed or will, appoint ; and he charged the 7500 on an estate to which he was absolutely entitled. There were three children of the marriage-J. G. S., and two daughters. H. S., by his will, in 1851, appointed 5000 of the fund to J. G. S., and devised to him and the heirs of his body the lands on which it was charged. In 1858, by a codicil, he revoked the devise of the lands in the will, and devised them to J. G. S. for life, remainder to such uses as S. G. S. should, by deed or will, appoint. In 1872, by his marriage settlement, reciting the devises of the lands by the will and codicil, J. G. S., in exercise of his power appointed the lands, after his death, to trustees for 200 years, to secure a jointure for his wife, remainder in strict settlement to the sons and daughters successively of the intended or any subsequent marriage, with an ultimate remainder to himself in fee. No mention or allusion to the charge of 5000 was made in the settlement: Reid, that there was no merger of the charge, and that the 5000 conÂÂtinued personal estate of J. G. S. SPECIAL CASE. The plaintiff, as administratrix of the late Capt. John Graydon Smith, who died intestate on the 3rd November, 1873, claimed, by the writ, as administratrix of Captain John Graydon Smith, to have it declared that the sum of 5000, appointed to the said John Graydon Smith by the will of Henry Smith, dated the 13th Jan., 1851, is well charged on, and is a subsisting charge on, the lands of Lower Boystown, otherwise Baltyboys, in the county of Wicklow, and part of the lands of Elverstown, in the county of Dublin, and that same formed part of the personal estate of said John Graydon Smith. The questions of law arising in this case on the deeds and facts hereinafter set forth were stated, pursuant to the order of the Lord Va.. XIX.] CHANCERY DIVISION. Chancellor, dated the 11th December, 1886, and made in the matter of Elizabeth Graydon Smith, a minor; and John James Digges La Touche was, by order of the Court, duly appointed special guardian for the said Elizabeth Graydon Smith, for the purpose of concurring, on her behalf, in the Special Case. By indenture, dated the 5th June, 1829, and made between Lieutenant-Colonel Henry Smith of the first part, Elizabeth Grant of the second part, Sir John Peter Grant of the third part, -and five trustees, therein named for the purposes thereinafter mentioned, of the fourth part : being the settlement made in conÂÂtemplation of the marriage afterwards solemnized between the said Henry Smith and the said Elizabeth Grant (the grandfather and grandmother of the defendant), after reciting (among other things) that the said Henry Smith was entitled to a sum of 4000, which was due to him by his brother John Smith, late of Bally-boys, in the county of Wicklow, deceased, which sum was secured on estates of the said John Smith in the county of Wicklow, and -that, by the death of the said John Smith, the said Henry Smith had become entitled to the said estates, upon which the said sum of 4000 was so secured; and that the said Henry Smith was also entitled to a sum of 3000, due to him by the firm of James Cockburn & Co., secured by their bond, and that, upon the treaty for said marriage, it had been agreed that the said Henry Smith should assign the said two sums of 4000 and 3000 to the said trustees ; and that he should, by his bond, secure to them the furÂÂther sum of 500, making together the sum of 7500, to be held upon the trusts thereinafter declared : it was witnessed that the said Henry Smith thereby assigned unto the said five trustees the said two sums of 4000 and 3000, to hold same and the said sum of 500, in trust for the said Henry Smith for life, and after his decease in trust for the said Elizabeth Grant for life, but subject to the provisions, &c., in ease there should be any issue living of said marriage, as were thereinafter contained ; and after the determination of the several interests and trusts thereinbef ore declared, in trust for all, or any one or more, of the child or chilÂÂdren of the said marriage, in such parts, shares, and proportions as the said Henry Smith, by deed or will, should appoint ; and further reciting that the said Henry Smith was entitled to certain X516 LAW REPORTS (IRELAND). [L. R.I. lands, tenements, and hereditaments, situate at or near BlesÂÂsington, in the county of Wicklow, late the property of the said John Smith, and that, upon the treaty for the said intended marriage, it had been agreed that the said Henry Smith should, charge the said. lands, tenements, and. hereditaments, to which he was entitled as aforesaid, with the payment of the said agÂÂgregate sum of 7500 ; it was witnessed that the said Henry Smith thereby charged the said lands, tenements, and hereditaÂÂments, which were of the said John Smith and had come to the said Henry Smith, with the payment of the said sum of 7500, with interest, to the said trustees ; and for better securing the same, the said Henry Smith granted and demised the said lands, tenements, and hereditaments to the said trustees for the term of 500 years. The lands, of which the said John Smith was so stated in said indenture to have been seized of in his lifetime, in the county of Wicklow, and which so came to the said. Henry Smith, and. were so charged by him with the payment of the said sum of 7500, are the lands of Lower Boystown, otherwise Baltyboys, in the county of Wicklow, and the defendant Elizabeth Graydon Smith waa entitled to the same as tenant in tail general. The said sum of 3000, as stated in said indenture of the 29th June...