The Estate of Henry W. Massy, or of George L. Bennett, Owners; Hugh Francis Massy, Petitioner

• Jurisdiction: Ireland
• Judgment Date: 17 December 1863
• Date: 17 December 1863
• Court: Incumbered Estates Court (Ireland)

L. E. Court.

In the Matter of the Estate of HENRY W. MASSY, or of GEORGE L. BENNETT,

Owners;

HUGH FRANCIS MASSY,

Petitioner.

Humble v. HumbleUNK 2 Jur. 696.

Howard v. Chuffers 9 Eng. Jur., N. S., 767.

Hepworth v. HillUNKENR 8 Jur. 962; S. C., 30 Beav. 493.

Hepworth v. Hill Ubi Supra.

Scott and Clement Cases temp. Nap. 91.

Marsh v. Evans 1P. Wms. 668.

Hutchinson v. Lord Massarene 2 B. & Beat. 49.

Anonymous caseENR 1 Salk. 153.

Carter v. BernadistonENR 1 P. Wms. 518.

Humble v. Humble Supra.

Howard v. Chaffers Supra.

Hepworth v. HillENRUNK 30 Beav. 476; S. C., 8 Jur. 962.

Scott v. Clements 8 Ir. Chan. Rep. 1.

CHANCERY REPORTS. 355 1863. L. E. Court. In the Matter of the Estate of HENRY W. MASSY, or of GEORGE L. BENNETT, Owners; HUGH FRANCIS MASSY, Petitioner. THE petition in this matter was filed to raise the amount of a certain legacy, which was charged, first, on the testator's personal estate, and then, in case it should prove insufficient, on his realty. The clause of the will so charging the legacy was in the following words :-" And I hereby charge and incumber my said estate of Donaskeigh with the payment of all such parts of my just debts and legacies as my personal property shall not be sufficient to pay ; but my will is, that my debts and legacies shall be, in the first instance, paid out of my personal estate as far as the same will extend." At the time of the testator's death, the personal estate was sufficient to have borne the legacies bequeathed by his will. That, however, on foot of which the petition was presented, was not payable until the legatee should have attained twenty-one. This he did in 1849. At sometime between the testator's death and the filing of the petition in January 1863, a devastavit was committed, and a deficiency caused thereby. No evidence could be obtained as to the time when this occurred ; but it was certain that there was now a deficit. Under these circumstances, cause was shown against making the conditional order for sale absolute, on the ground that, as there had been an adequate personal fund at the time of the testator's death, that was the only source of payment to which the legatees had now a right to look. Dec.17 . A certain legacy, payÂable to the legatee at twenty-one, was charged primarily on the testator's personalty, and on his realty, failing sufficient perÂsonal assets. At his death the personal assets were sufficient, but, owing to a devastavit by the executors, became at some subseÂquent nnascerÂtained time inadequate. The legatee (thepetitioner) attained twenty-one in 1849. The peÂtition was filed on the 26th of January 1863. Held, first, the mere nonÂenforcement of payment from executor, no laches to estop the legatee. Secondly, the real estate of the testator Mr. Sherlock and Mr. Robert Ferguson, for the petitioner. is liable to the payment of the legacy. Mr. Burroughs and Mr. R. X Shekleton, for the party showing Semble, there might have been laches if the executors had appropriated a fund for payment of the legacy, and that fund had been...