Walter Lawrence the Elder, and Walter Lawrence the Younger, - Appellants; Patrick Blake; Valentine Blake his son, an Infant; John Mahon, Administrator with the Will annexed of Nicholas Archdeckne Burke, deceased; Charles Blake; Maria Burke, of Mount-street, Dublin, Executrix of Walter Archdeckne Burke; Mary Burke, of Galway, Administratrix of Redmond Archdeckne Burke; James Blake, and Helen Blake Otherwise Burke, his Wife, which said Helen is Administratrix of James Archdeckne Burke, and of Helen Fitzpatrick otherwise Burke, deceased; Jane Blake, Administratrix With the Will annexed of Jane Burke, deceased; Frances Power, Administratrix of Mary Byrne, deceased, and Henry Edward Roberts and Eleanor his Wife, - Respondents

• Jurisdiction: Ireland
• Judgment Date: 07 March 1842
• Date: 07 March 1842
• Court: House of Lords (Ireland)

English Reports Citation: 8 E.R. 198

House of Lords

Walter Lawrence the Elder, and Walter Lawrence the Younger

-Appellants

Patrick Blake

Valentine Blake his son, an Infant

John Mahon, Administrator with the Will annexed of Nicholas Archdeckne Burke

deceased

Charles Blake

Maria Burke, of Mount-street, Dublin, Executrix of Walter Archdeckne Burke

Mary Burke, of Galway, Administratrix of Redmond Archdeckne Burke

James Blake, and Helen Blake Otherwise Burke, his Wife, which said Helen is Administratrix of James Archdeckne Burke, and of Helen Fitzpatrick otherwise Burke

deceased

Jane Blake, Administratrix With the Will annexed of Jane Burke

deceased

Frances Power, Administratrix of Mary Byrne, deceased, and Henry Edward Roberts and Eleanor his Wife

-Respondents

Mews' Dig. i. 339, 356; xiv. 768; xv. 1699; S.C. 6 Jur. 427.

Account - Delay - Practice - Trustee.

[504] WALTER LAWRENCE the Elder, and WALTER LAWRENCE the Younger,- Appellants; PATRICK BLAKE; VALENTINE BLAKE his Son, an Infant; JOHN MAHON, Administrator with the Will annexed of Nicholas Archdeckne Burke, deceased; CHARLES BLAKE; MARIA BURKE, of Mount street, Dublin, Executrix of Walter Archdeckne Burke; MARY BURKE, of Galway, Administratrix of Redmond Archdeckne Burke; JAMES BLAKE, and HELEN BLAKE otherwise BURKE, his Wife, which said Helen is Administratrix of James Archdeckne Burke, and of Helen Fitzpatrick otherwise Burke, deceased; JANE BLAKE, Administratrix with the Will annexed of Jane Burke, deceased ; FRANCES POWER, Administratrix of Mary Byrne, deceased, and Henry Edward Roberts and Eleanor his Wife,-Respondents [April 1, 5, 6, 1841; March 7, 1842]. [Mews' Dig. i. 339, 356; xiv. 768; xv. 1699; S.C. 6 Jur. 427.] Account-Delay-Practice-Trustee. The first decree in certain suits, which had been in existence for some years, was made in the year 1813: the litigation went on, and other decrees were made upon the footing of that decree, between the parties and others interested in the same transactions, until 1838, when a decretal order was made for the revival and execution of all former decrees and orders. These decrees and orders, and the decretal order of 1838, were appealed against:-Held, that after such a delay and under such circumstances, this House would not set aside any of the original decrees or orders., upon, technical objections which did not affect the merits of the case. N. A. made a will, with certain trusts relating to his real and personal estate, and appointed trustees to carry them into execution. One of these trusts was for the payment of provisions of 2500 for the younger children, and of 500 for the eldest daughter of R. A. B., who was one of the executors and trustees under the will. An Act of Parliament was obtained to carry some of the trusts of this will into execution; and under this Act, lands devised by N. A. [505] were sold. The trustee under the Act was W. L. On a bill filed against him by the legatee of the 2500, he sought to take advantage of the payment by him of that sum to R. A. B.-Held, that R, A. B.'s receipt was no discharge of W. L.'s liability, as by the terms of the Act he was absolutely bound to pay the debts and discharge the children's portions; and it was not set up in the answer, nor proved, that R, Ar B. had specifically received this money as trustee for his daughter. 198 LAWRENCE V. BLAKE [1841-42] VIII CLARK & FINNELLY, 506 Where a decretal order, which, was not alleged to be made on the appearance of all the proper parties, and was so far therefore irregular, directed the revival and execution of several preceding decrees and orders, but the suit in which it was made was regular for some purposes at least, the House reversed it with directions, and remitted the case to the Court below to deal with the suit so as to advance the justice of the case, regard being had to the decision of this House as to the earlier decrees and orders, the validity of which the House had sustained. On the 24th of September 1775, Nicholas Archdeckne, by his will of that date, after directing his just debts to be paid, devised hisi real estates in the counties of Galway, Clare, and Kilkenny, agreeably to uses under which the estates stood limited, to Robert Burke, afterwards Robert Archdeckne Burke, for his life, with remainder to his first and other sons successively in tail male, with remainder to Redmond Burke in tail male, with remainder to Anthony M'Hugo in tail male, with remainder to James Burke in tail male, with remainder to John Foster in tail male, with remainder to testator's right heirs. The will contained the following bequest: - " I give and bequeath to the said Robert Burke the sum of 2500 chargeable and payable out of my said estates, for the use of the younger children of the said Robert Burke." And also the following bequest: - " I leave and bequeath to Helen Burke, the eldest daughter of the said Robert Burke, over and above her share of the provision for younger children, and as [506] a further charge or incumbrance on my said estates, the sum of 500 sterling, to be paid her without interest when she shall attain, the age of twenty-one years." And the testator gave the residue of his real and personal estate to Robert Burke, afterwards Robert Archdeckne Burke, and appointed said Robert Burke, D'Arcy French, and John Pilley, his executors. The will was proved in February 1776, by R. A. Burke alone, and he alone acted in the execution of the will. Robert Archdeokne Burke had in all nine children, whose names, with some particulars respecting them, which are afterwards referred to, were as follow: viz. 1. Nicholas Archdeckne Burke, the eldest son.-On his death in September 1823, administration with his will annexed was granted at first to Helen Fitzpatrick, and on her death to John Mahon, a Respondent. 2. Walter Archdeckne Burke.-On his death administration was granted to his widow, Maria Burke of Dublin, a Respondent. 3. Redmond Archdeckne Burke.-On his death administration was granted to Mary Burke of Galway, a Respondent. 4. James Archdeckne Burke.-After his death administration was granted to Helen Blake, a Respondent. 5. Helen Burke-married Edmond Fitzpatrick, who afterwards died, leaving his widow surviving him. On her death administration was granted to Helen Blake, a Respondent. 6. Jane Burke.-On her death administration with her will annexed was granted to Jane Blake, a Respondent. 7. Anne Burke-married Valentine Blake, who afterwards died leaving his widow Anne Blake surviving. [507] On her death administration wasi granted to Patrick Blake, a, Respondent. 8. Mary Burke-married Edward Byrne, who afterwards died leaving his widow Mary Byrne surviving him. On her death administration was granted at first to John Edward Byrne; and on his death to Frances Power, a Respondent. 9. Eleanor Burke-married Henry Edward Roberts, both of whom are still living, and are Respondents. In 1784 a private Act of Parliament was passed for the sale of the estates. In 1785, Walter Lawrence, Redmond Burke, and the Earl of Clancarty, the trustees under this Act, sold a part of the trust estates to a Mr. M'Dermott, for 10,000. In February 1795, the children of R. A. Burke, with the husbands of the then married daughters, filed their bill against the trustees under the Act of Parliament, and against R. A. Burke, charging that Walter Lawrence had misapplied a part of 199 VIII CLARE & FINNELLY, 608 LAWRENCE V. BLAKE [1841-42] the 10,000, and had paid over part of it to R. A. Burke; and praying, amongst other things, an account of the monies received under the Act. Walter Lawrence put in his answer to this bill, denying the alleged misapplication, and insisting that he was entitled to be allowed certain parts of the 10,000 which had been received by Robert Archdeckne Burke: and after such answer, further proceedings in that suit were abandoned. In October 1796, Walter Lawrence the trustee died, leaving the Appellant Walter Lawrence the elder, then an infant about four years old, his eldest son and heir at law, and having by his will appointed his wife Catherine Lawrence, Denis John Blake, and Thomas Redington, his executors. The widow alone proved the will, and in 1799 she married Dominick Bodkin. In January 1800, the children of Robert Arch-[508]rdeckne Burke, with the husbands of the then married daughters, filed their bill against Dominick Bodkin and Catherine his wife, Thomas Redington, and Denis John Blake; William Earl of Clancarty, and Redmond Burke (two of the trustees under the Act); Robert Archdeckne Burke, and the Appellant Walter Lawrence the elder * then an infant, the heir at law of Walter Lawrence; stating that the sum of 10,000 was received by Walter Lawrence, and that he had misapplied a part thereof, and that no part of the legacies of 2500 and 500 had been paid; and that Catherine Bodkin had possessed herself of all the assets of Walter Lawrence, amounting to many thousand pounds; and stating that Catherine Bodkin insisted that the assets were not sufficient to pay the judgment debts due by Walter Lawrence, deceased, at his death, and that these judgment debts ought to be paid out of the assets, in preference to the plaintiffs' demand; and the bill charged that Walter Lawrence was at the time of his death seised of an estate in fee simple in lands in the counties of Mayo and Galway, upon which the judgment debts due by Walter Lawrence at his death were a lien; and that the real estate of Walter Lawrence was more than sufficient to satisfy all his debts affecting the same; and that by marshalling his . assets, so that the judgment and other debts affecting his real estates should be paid thereout, his personal assets would be amply sufficient to pay his simple contract debts; and that Catherine Bodkin alleged that Walter Lawrence had [509] handed over several sums out of the said 10,000 to R. A. Burke, and insisted on having credit allowed to her for such sums. The bill prayed that the trusts...