Walker v Atkinson

• Jurisdiction: Ireland
• Judgment Date: 23 November 1894
• Docket Number: (1894. No. 754.)
• Date: 23 November 1894
• Court: Court of Appeal (Ireland)

Walker

and

Atkinson (1).

Appeal.

(1894. No. 754.)

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.

Practice — Security for costs — Plaintiff resident out of the jurisdiction — Satisfactory affidavit — Defence upon the merits — Order XXIX., R.3.

By a settlement dated the 30th May, 1863, executed on the marriage of J. H. W. and Jane P., the mother of J. H. W., Elizabeth W., covenanted with R. A. and J. W., the trustees of the settlement, that she would by will give one-third of her real and personal estate to the trustees of the settlement upon trust during the joint lives of J. H. W. and Jane P. to pay the income to Jane P. for her separate use, and after the death of either of them upon trust if J. H. W. should be the survivor to convey the said share to J. H. W. absolutely; but if Jane P. should be the survivor to pay the income to her during her widowhood, and on her decease or second marriage upon trust for the children of the marriage in equal shares.

By her will, dated the 18th November, 1877, Elizabeth W. left all her property to her executors and trustees upon trust to divide the same equally beween her three children, of whom J. H. W. was one, and in case he predeceased her, his share was to go to his children. She died in 1879, and her will was proved.

The plaintiffs were the children of J. H. W. and Jane P., both of whom were alive, and all the plaintiffs resided out of the jurisdiction. J. W., one of the trustees, was dead. In an action against R. A., the surviving trustee of the settlement for not having secured for them one-third of the assets left by Elizabeth W., the defendant moved for security for costs, and in his affidavit stated that he had never heard of the death of Elizabeth W. until about three years before the action, and no notice of the death had been served upon him or his co-trustee, nor had they been asked to get in the property; that both the parents of the plaintiffs were alive; and the interest of the plaintiffs in any of the property settled was contingent only; and further that the executors of Elizabeth W., in ignorance of the settlement, had paid over one-third of her estate to J. H. W., who afterwards became bankrupt:—

Held, (affirming the decision of Porter, M.R.), that this was not a satisfactory affidavit that the defendant had a defence upon the merits, so as to entitle him to security for...