West v Lawday

• Jurisdiction: Ireland
• Judgment Date: 11 May 1868
• Date: 11 May 1868
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

WEST

and

LAWDAY.

Dunne v. Lewis 2 Br. C. C. 362.

Galton v. HancockENR 2 Atk. 424.

Powis v. CorbetENR 3 Atk. 556.

Manning v. Spooner 3 Ves. 114.

Harmood v. Oglander 8 Ves. 105.

Milne v. Slator 8 Ves. 295.

Mirehouse v. Scaife 2 M. & Cr. 695.

Emuss v. SmithENR 2 De G. & Sm. 722.

Eddels v. JohnsonENR 1 Giff. 22.

Pearmain v. TwissENR 2 Giff. 130.

Edwards v. PughENR 2 Giff. 135.

Clark v. Clark 11 Jur. N. S. 820.

Daly v. HartridgeENR 1 Dr. & Sm. 236.

Barnwell v. IremongerENR 1 Dr. & Sm. 242.

Rotheram v. RotheramENR 26 Beav. 465.

Hensman v. FryerELRELR L. R. 2 Eq. 627; S. C. on Appeal, L. R. 3 Ch. App. 421.

Paterson v. Scott D. M. & G. 531.

Foster v. CookENR 3 Bro. C. C. 347.

Spong v. SpongENR 1 Dow & Cl. 365.

Conron v. Conron 7 H. L. 168.

Moffatt v. BurrowesUNK 4 Ir. C. L. R. 297.

Adams v. Gamble 12 Ir. Ch. R. 102.

Lechmere v. Brotheridge 32 L. J. Ch.

Brittlebank v. GoodwinELR L. R. 5 Eq. 545.

Dunne v. Doran 13 Ir. Eq. R. 545.

Brereton v. Hutchinson 2 Ir. Ch. R. 648.

Newport v. Bryan 5 Ir. Ch. R. 119.

Dunne v. LewisENR 2 Bro. C. C. 862.

Manning v. Spooner 3 Ves. 114.

King v. DennisENR 1 V. & B. 272.

Dickinson v. TeasdaleENR 31 Beav. 511; 1 De. G. J. & Sm. 52.

Daly v. HartridgeENR 1 Dr. & Sm, 236.

Hensman v. FryerELRELR L. R. 2 Eq. 627.; S. C. on Appeal, L. R. 3 Ch. App. 421.

Spong v. SpongENR 3 Bligh, N. S. 84.

Greville v. Browne 7 H. L. 689.

Norris v. CookeUNK 7 Ir. C. L. R. 37.

Kay v. MarshallENR 8 Cl. & Fin. 245.

M'Can v. O'FerrallENR 8 Cl. & Fin. 30.

Hensman v. FryerELR L. R. 3 Ch. App. 420.

Will — Residuary Devise — Specific — Charge of Debts.

EQUITY SERIES. 517 WEST v. LAWDAY. Will-Residuary Devise-Specific-Charge of Debts. A testator directed that the lands of C. should, as soon after his death as possible, be sold in the Incumbered Estates Court ; and, after the payment of all his just debts, be equally divided between two persons, A. and B. ; and he left legacies, and appointed B. residuary legatee and devisee of all his real perÂÂÂsonal estate and effects. Held (varying the judgment of the Master of the Rolls), that the will was an express dedication of the lands of C. for payment of debts. Qucere, whether since the passing of the Wills Act (1 Viet. c. 26), a resiÂÂÂduary devise of real estate is still specific. Tills was an appeal on the part of the Petitioner against an order of the Master of the Rolls, holding (in affirmance of an order of Master Brooke) that the personal estate of the testator and the lands of Groyne, which constituted the subject of the resiÂÂÂduary devise in the will of the testator, formed the proper fund for the payment of the testator's funeral expenses, debts, and legacies ; and that the Respondent, Susannah Lawday, was entitled to be paid out of the lands of Groyne the moiety of the amount of the debts and legacies paid out of the proceeds of the sale of the specifically devised lands in the Landed Estates Court, with inteÂÂÂrest ; and declaring the Petitioner and Respondent respectively entitled to their costs in this matter (except the costs of the appeals) to be taxed as between solicitor and client, and to be paid to them respectively in the first instance out of the residuÂÂÂary estate of the testator. The facts are stated in the report of the decision below (I. R. 1 Eq. 478). It is only necessary, for the purpose of the arguments on this appeal, to state that the direction to sell in the testator's will was to sell in the Incumbered Estates Court ; and further, that there were judgment mortgages affecting all the lands beÂÂÂlonging to the testator. YoL. If. 2 Q THE IRISH REPORTS. Mr. 0' Hagan, Q. C., and Mr. Hickson, for the Appellant. The only question we intend to argue is as to the debts. We submit that they are primarily payable out of the lands which have been sold, and not out of Groyne, and that the sold lands are bound to exonerate Groyne. Not merely is there on the lands specifically devised a charge of the testator's debts, but there is such a dedication of those lands for that purpose as to make them the fund for it next after the personalty. In any...