Smithwick v Smithwick

• Jurisdiction: Ireland
• Judgment Date: 18 April 1861
• Date: 18 April 1861
• Court: Rolls Court (Ireland)

Rolls.

SMITHWICK

and

SMITHWICK

Waring v. Waring 3 Ir. Chan. Rep. 337.

Luther v. Bianconi 10 Ir. Chan. Rep. 194.

Norris v. WrightENR 14 Beav. 303.

Box v. Jackson Drury, 48.

Norris v. WrightENR 14 Beav. 307.

Macleod v. AnnesleyENR 16 Beav. 600.

Kieran v. CorrUNK 11 Ir. Eq. Rep. 514.

Waring v. Waring Ubi supra.

Hoby v. AllenUNK 15 Jur. 835.

Briggs v. ChamberlainENR 11 Hare, 73, n.

Tuer v. TurnerENR 20 Beav. 560.

May v. RoperENR 4 Sim. 360.

Baker v. Baker 6 H. of L. Cas. 616.

Norris v. WrightENR 14 Beav. 308.

Hill v. Mill 3 H. of L. Cas. 854, 855.

Drew v. Lord Norbury 3 J. & L. 302.

Hackett v. PattleUNK 6 Mad. 4.

Basil v. Atcheson 4 Br. Par. Cas. 502.

Kirby v. Ormsby Colles, P. C. 134.

Walker v. Deane 2 Ves. jun. 183.

Vann v. Barnett 19 Ves. 102.

Davies v. GoodhewENR 6 Sim. 585.

Hoby v. AllenUNK 15 Jur. 835; S. C., 20 Law Jour. 199.

Briggs v. ChamberlainENR 11 Hare, 73, note a.

Tuer v. TurnerENR 20 Beav. 563.

Montgomery v. Waring 6 Ir. Chan. Rep. 533.

Jesse v. Bennett 6 D., M. & G. 609.

CHANCERY REPORTS. 181 costs of this motion and order ; but, as he is indemnified, this will not affect him. It is, I think, necessary, upon the cases I have referred to, that the money shall be brought into Court. My present opinion upon the authorities is, that the set-off claimed by Mr. T. W. Reeves cannot be established as against the lien which Mr. Carmichael will have for his costs on the fund when brought into Court ; but it would, I think, be premature to decide that, until the fund shall be lodged in Court. 1861. Rolls. WILLIAMS V. REEVES. Judgment. SMITHWICIC SMITHWICK. ' Jan. 24. April 18. By a settlement, bearing date the 13th of July 1825, and executed In Ireland, a loan of trust prior 'to the marriage of Michael Smithwick and the petitioner, then funds, on a second mort- Maria Waller, two sums of £4000 and £2000 respectively were gage, is not, of vested in the respondent William Smithwick and John Burke, as itself, and in the absence of other c trustees, and the lands of Mount Catherine and Emly were conveyed stances - cir, a um to them, in trust to pay the rents and interest to Michael Smithwick breach of trust. A sum of for life, and, after the death of Michael Smithwick, as to the lands, money charged e to the use of the first and other sons of the marria , in tail male lands g , upon was, by a max_ riae settle- and, in default of such issue, to the use of the heirs and assigns of ment, assigned Michael Smithwick ; and as to the sum of £4000, in trust, in case to trustees, upon trust to the petitioner Maria Smithwick should survive the' said Michael pay the inter est to A, the husband, for his life, and, after his death, in trust to pay the wife 11 a jointure of £200 a-year ; provided that it should be lawful for A, with the consent of the trustees, in writing, to call in the trust fund, and lay out and dispose of the same in the purchase of an estate of inheritance or freehold, for a term of at least three lives, or of a lease for a term of years, whereof ninety-nine years shall be unexpired, or otherwise advantageÂously, which purchase or disposal, when so made, should be settled and vested to the several uses, trusts, intents and purposes thereinbefore mentioned, in respect to said sums. A portion of the fund was paid to the surviving trustee, who lent it to A, on a release being executed by A, B, and C their son, and acknowledged and enrolled under the Act for the Abolition of Fines and Recoveries.-Held, after the death of A, in a suit by B to replace the trust fund, that the release as to her was inoperative. Money subject to be invested in lands, in the said Act (3 & 4 W. 4, c. 92. s. 68), means money directed to be so invested. 182 CHANCERY REPORTS. Smithwick, to pay thereout to the petitioner an annuity of £200 a-year for life, in full for her jointure, provided that she should be at liberty, if she survived her husband, to reside, during her widowÂhood, at the house and lands of Mount Catherine ; and, if she made such election, her annuity was to be reduced to £100. The settleÂment then declared the trusts of the £4000 and £2000, after the death of the petitioner, and contained a proviso, ".that it should be lawful for the said Michael Smithwick, with the consent of the said trustees, to call in the said sums of £4000 and £2000, or any part thereof, and to lay out and dispose of the same, in the purÂchase of an estate of inheritance or freehold, or of a lease for a term of years, whereof ninety-nine years shall be unexpired, or otherwise advantageously ; which purchase or disposal, when so made, shall be settled and vested to the several uses, intents and purposes hereinbefore mentioned, in respect of said sums." At the time of the execution of the settlement the trust funds stood thus :-The sum of £4000 consisted of £1500, the fortune of the petitioner, which was charged on the estate of William H. B. Waller, her brother, and three judgments against Lord Gort, for the respective sums of £1288. 6s. 3d., £400 and £800, which were assigned to the trustees. The other sum of £2000 was secured by a judgment against a Mr. Bleasby, which was not assigned to the trustees. John Burke died in 1826. There was issue of the marriage a son, William Henry Smithwick, who attained age in 1847. In 1849, a sum of £410. 5s. ld., of the trust funds, being part of the' £1500, the petitioner's fortune, was lent to Michael Smithwick, and was paid by the respondent to Michael Smithwick and the petitioner, and William Henry Smithwick. A release, bearing date the 10th of December 1849, was executed by Michael Smithwick, William Henry Smithwick and the petitioner, and acknowledged by the petitioner, and enrolled under the Act for the Abolition of the Fines and Recoveries, 3 & 4 W. 4, c. 92. In 1836, two further sums, amounting together to £1107. 8s. 10d., were paid on foot of the judgments against Lord Gort. CHANCERY REPORTS. 183 In 1843, that sum of £1107. 8s. 10d. was, at the instance of Michael Smithwick and the petitioner, lent to W. H. B. Waller, on a mortÂgage (which also included a further sum belonging to Michael Smithwick, and making altogether £3000) of fee-simple estates in in Tipperary and Limerick. The negotiation for the loan, and the circumstances of the property which secured it, are stated fully in the judgment of the MASTER OF THE ROLLS (infra, p. 187). The respondent's affidavit stated that the rental of the mortgaged proÂperty was between £700 and £800 a-year, and that it would have brought, at the price of land in 1843, when the money was lent, £16,000. It was, at the time, subject to a prior mortgage to Mr. J. Bessonett, for £6000. In 1851, Mr. Waller's estate was sold by the Commissioners for the Sale of Incumbered Estates in Ireland, and proved insufficient to pay any part of the £3000. On the 1'9th of April 1857, Michael Smithwick died, and the petitioner, not having chosen to reside at Mount Catherine, became entitled to the jointure of £200 a-year, on foot of which she alleged an arrear of £538. 14s. 8d. to be due, for the payment of which the only available fund was the dividends of a sum of £1193. 14s. 8d. stock, the remaining portion of the sum due on foot of the judgments against Lord Gort. The petition prayed that the respondent might be ordered to bring in and lodge in the Bank of Ireland such prinÂcipal sum or sums of money, portion of the trust funds, comprised in the said indenture of the 13th of July 1825, liable to the payÂment of the petitioner's annuity of £200, as had been lost by reason of the several matters above set forth, or in consequence thereof were not available for the payment of the said annuity, together with interest at £5 per cent. from the 19th of April 1857 ; and that said principal sums, when so brought in, might be invested in such manner as the Court should:direct ; and that the said interest, from the 19th of April 1857, and also the interest, dividends and profits of said principal sums, and of the securities upon which the same should, for the time being, be invested, might be paid to the petiÂtioner, in discharge of the arrears of the annuity, and, if necessary, an account of such arrears. 184 CHANCERY REPORTS. Mr. Serjeant Sullivan. Mr. J. T. Ball and Mr. Dames, for the petitioner., Two distinct breaches of trust are established against the respondÂent :-First ; the loan of £1107. 8s. 10d., a portion of the trust fund, in 1843, to Mr. Waller, on a security which turned out to be insufficient in value. Secondly; the payment of the sum of £410. 5s. ld., to Michael Smithwick, in 1849. As to the first, the loan was not authorised by the settlement which authorised the investÂment of the trust fund in the purchase of land. But supposing it to have been within the power, it was an improvident and incauÂtious exercise of discretion on the part of a trustee. No independent solicitor acted for him, and the money was lent on the security of a second mortgage, which, of itself, is a breach of trust : Lewin on Trusts, p. 350, 3rd ed.; and without the usual security of a judgment collateral with the mortgage : Waring v. Waring (a); Luther v. Bianconi (b); Norris v. Wright (c). As to the £410. 5s. Id., which was paid to the husband, the release, though executed by the petitioner, does not exonerate the respondent. The jointure was a reversionary interest in a fund which she had no power to dispose of while she remained covert : Box v. Jackson (d) ; and the release, though acknowledged by her, under the 3 & 4 W. 4, c. 92, is inoperative, for the ease does not fall within the 68th section of that Act. That section provides that " It shall be lawful for every married woman, in every case, except that of being tenant in tail, for which provision is already made by this Act, by deed to dispose of lands of any tenure, and money subÂject to be invested in the purchase of lands ; and also to dispose of, release, disclaim...