The Estate of Samuel Bradford, Owner and Petitioner

JurisdictionIreland
Judgment Date20 November 1894
Date20 November 1894
CourtHigh Court
In the Matter of the Estate of Samuel Bradford Owner and Petitioner.

Monroe, J.

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Will — Legacies charged on land if personal estate should prove to be insufficient — Devastavit — Incumbrances created by executor also devisee — Laches — Arrangement — Certificate of conformity.

A testator bequeathed his personal estate to S. and two other persons whom he appointed executors upon trust to pay certain legacies, and subject thereto for S. absolutely, and devised and bequeathed all his real freehold and chattel real lands to S., subject as therein-mentioned, that is to say he directed that if the personal estate thereby bequeathed should prove insufficient to pay the legacies the deficiency should be a charge upon the real and chattel real property devised to S. The testator died in 1872, and S. who was the sole acting executor became possessed of the entire real and personal estate. The personal estate was sufficient to pay the legacies in full, but was misappropriated by S., and certain of the legacies were left unpaid, interest thereon being paid to the legatees who had no notice of the devastavit. S. mortgaged the lands, and afterwards becoming embarrassed carried an arrangement with his creditors, and obtained a certificate of conformity. The legatees had been returned in the statement of affairs as unsecured creditors, but to this they objected, and had their names struck out, and did not participate in the composition:—

Held, that although the personal estate was originally sufficient, and the deficiency was caused by the devastavit of the executor, the unpaid legacies became charged on the lands.

Held, also, that there was no laches on the part of the legatees to postpone them to the incumbrances created by S., and that their rights as secured creditors were not affected by the arrangement proceedings.

On the 5th December, 1871, the late Mr. Thomas Bradford made his will, and thereby devised and bequeathed to his son, Samuel Bradford, absolutely, all his real, freehold, and chattel real lands, subject and charged as therein mentioned. He bequeathed certain portions of his personal property specifically, and as to the residue thereof he bequeathed it to his wife, his son Samuel, and John William Ellison, whom he appointed executors, upon trust to pay his debts and funeral expenses and the legacies to his wife and children therein mentioned, and subject to such trusts he gave the entire residue to his son Samuel, absolutely. He directed that if the personal property so bequeathed should prove insufficient to pay the sums so bequeathed to his wife and children, then the deficiency should be a charge on his real and chattel real property so demised to his son Samuel. The testator died in 1872, possessed of certain landed properties; some held under fee-farm grant, some under lease, and some under tenancies from year to year; and immediately afterwards Samuel Bradford entered into possession of the entire of the real and personal estate. Probate was granted to the three executors, but everything was managed by Samuel Bradford, with whom his mother and some of his unmarried sisters continued to reside. The personal estate left by the testator was quite sufficient, if realised, to pay the legacies in full, but these were not demanded by all the legatees. Some of them were paid, but others remained outstanding, interest being paid thereon after deducting sums in several instances in respect of the sisters' maintenance. After his father's death Samuel expended large sums of money in purchasing the fee in lands of which his father had been lessee or tenant from year to year, and the purchase-money of these lands was mainly obtained on mortgage from the trustees of the Presbyterian Church or from the Bank of Ireland. Afterwards Samuel Bradford became embarrassed in his circumstances, and presented his petition for arrangement with his creditors to the Court of Bankruptcy on the 12th March, 1890. He proposed to pay his creditors 20s. in the £ in certain instalments within two years, and this proposal was duly accepted by the required number. The legatees were returned as unsecured creditors. They objected to this and had their names struck out, and they stated to the Court of Bankruptcy that they did not require any composition to be provided for them as they considered themselves creditors secured by the father's land, and had no intention of interfering in the arrangement so far at all events as their legacies were concerned...

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