William Galbraith Quinton v George Frith, and Others

• Jurisdiction: Ireland
• Judgment Date: 10 December 1868
• Date: 10 December 1868
• Court: Chancery Division (Ireland)

V. C. Court.

WILLIAM GALBRAITH QUINTON

and

GEORGE FRITH, AND OTHERS.

Melling v. LeakENR 16 C. B. 653.

Cooper v. Warre 11 Ir. Jur. N. S. 24.

Doe v. TatchellENR 3 B. & Ad. 675.

Fenton v. CleggENR 9 Exch. 680.

Tyson v. JacksonENR 30 Beav. 384.

Wyche v. The East India Co.ENR 3 P. Wms. 309.

Cooper v. Warre 11 Ir. Jur. N. S. 38.

Melling v. LeakENR 16 C. B. 653.

James v. SalterENR 3 Bing. N. C. 544.

ENR 16 C. B. 653.

Doe v. SturgessENR 7 Taunt. 217.

Richards v. Richards 2 B. Ad. 447.

Carter v. CarterENR 3 K. & J. 617.

Smith v. BrooksbankENR 7 Sim. 18.

Saunders' CaseUNK 5 Rep. 12, b.

Doe v. SturgessENR 7 taun. 223.

Morgan v. MorganENR 1 Atk. 489.

Donner v. FortescueENR 3 Atk. 124.

Bloomfield v. EyreENR 8 Beav. 250.

Thomas v. ThomasENR 2 K. & J. 79.

Crowther v. CrowtherENR 23 Beav. 305.

Hanney v. WilliamsENR 22 Beav. 452.

Pelly v. Bascombe 4 Gif. 390.

34 L. J. N. S. Ch. 233.

Scotland v. SiddallENR 3 De G. F. & J. 58.

Suit by Legates — Pleading assent of Personal Representative — Statute of Limitations.

396 THE IRISH REPORTS. V. C. Court. WILLIAM GALBRAITH QUINTON v. GEORGE FRITH, 1868. AND OTHERS. Suit by Legatee-Pleading assent of Personal Representative-Statute of Limitations. A personal representative, who is also a legatee, may, though no assent has been previously given, show by his petition that he assents to his own legacy. An assent, so testified, will suffice, and may be shown, not only by an express averment of assent, but even by the frame of the cause petition manifesting that the Petitioner sues as legatee. When an executor takes, under his testator's will, a life interest in a term, the legatee of a reversionary interest, commencing on the determination of that life interest, may, upon its determination, and on assent having been given, sue to recover the land, even though the executor might himself have been barred by the Statute of Limitations. A person entering upon the estate of an infant, whether the infant has been actually in possession or not, will be fixed with a fiduciary position as to the infant-1st, whenever he is the natural guardian of the infant ; 2ndly, when he is so connected by relationship or otherwise with the infant as to impose upon him a duty to protect, or at least not to prejudice the infant's rights ; or, 3rdly, where he takes possession with knowledge or express notice of the inÂÂÂfant's rights. A person accepting a conveyance of an infant's lands from the infant's natural guardian, with express notice of the infant's rights, will be deemed to be the bailiff of the infant during his infancy. THE cause petition in this case was filed on the 30th of OctoÂÂÂber, 1867. It appeared by it that in 1753 David Rynd was posÂÂÂsessed of one undivided moiety of the lands of Pubble,in the Co. Fermanagh, which he held by a customarily renewable lease for years granted by the Bishop of Clogher. On the 7th of June, 1753, David Rynd demised that moiety to John M'Clintock for seven years from the 1st of February, 1751. That lease contained a tones quoties covenant to renew. By a deed of even date, John M'Clintock assigned to his son, Alexander M'Clintock, one half of the demised lands, habendum, during the continuance of the lease, in as full and ample a manner as they were then enjoyed by John M'Clintock. All the interest EQUITY SERIES. of Alexander M'Clintock became vested in his sons, James M'ClinÂÂÂtock and Alexander M'Clintock, the second, in divided moieties. By deed, dated the 15th of January, 1802, James M'Clintock asÂÂÂsigned his moiety to William Cluff, who, by will, dated the 13th of November, 1820, bequeathed to his sister, Elizabeth Cluff, a bond debt, and to his sisters, Susanna Corry, Jane Moffatt, and Elizabeth Cluff, all the residue of his property, real and personal, share and share alike, subject to a legacy of £22. 15s. to each of them ; and directed that neither Alexander Corry, the husband of Susanna, nor Galbraith Moffatt, the husband of Jane, should have any control over the legacies left to their wives, without their consent. The testator appointed Jane Moffatt and Elizabeth Cluff his executrixes. They, on the 3rd of July, 1821, proved the will, and assented to the bequests. By will, dated the 9th of April, 1824, Elizabeth Cluff bequeathed all her property to Jane Moffatt in trust to pay certain specified legacies, and, subject thereto, for her sole and separate use ; and she appointed Jane Moffatt her sole executrix. She proved the will on the 2nd of August, 1826, and assented to the bequests. Susanna Corry survived her husband ; and, by will, dated the 19th of November, 1846, bequeathed to Anne Quinton, wife of William Quinton, all her property, freehold and chattel, to be left b y Anne Quinton to her children at the time of her death, with liberty to dispose of it as she might think proper, if she had not any child living at the time of her death, but subject to cerÂÂÂtain pecuniary legacies ; and she appointed Anne Quinton her sole executrix. Susanna Corry died on the 5th of June, 1847, and letters of administration, as if she had died intestate, were granted of her goods to Jane Frith, wife of the Respondent, George Frith. Proceedings to have those letters set aside, and to have the will proved, were instituted by Anne Quinton, who, on the 5th of March, 1848, during their pendency, died without having proved the will. She left, her surviving, her husband and their three children, namely, the Petitioner ; Susanna (wife of the ResponÂÂÂdent, Peterson) ; and Elizabeth Jane, since deceased (wife of the Respondent, Hunter, who is sole legal personal representative of 398 THE IRISH REPORTS. V. C. Court. his wife). William Quinton, by an agreement, dated the 1st of 1868. May, 1848, compromised the proceedings instituted by his wife. On the 7th of February, 1849, the Court of Prerogative, by a QUINTON V. decree, condemned and revoked the letters of administration ; and FRITH. granted letters, with the will annexed, to William Quinton. Jane Moffatt died intestate during the life of Galbraith MofÂÂÂfatt, who obtained letters of administration to her, and continued, until his death, in possession or in receipt of the rents of the two divided third parts to which his wife had been entitled. On the 6th of January, 1846, Galbraith Moffatt bequeathed these two-thirds by the description of " All that part of the lands of Pubble now in the actual possession of Thomas Montgomery, James Owens, and Patrick Hamilton," to Anne Quinton, for her life, and then to the Petitioner. Galbraith Moffatt died on the 18th of April, 1847. Anne Quinton, whom he had appointed his sole executrix, proved his will on the 10th of December, 1847. The petition stated that, by the memorial of a deed, dated the lst of May, 1848, it appeared that the deed was made between William Quinton and George Frith and his wife, and that WilÂÂÂliam Quinton thereby covenanted. that he would within three months pay £1100 to George Frith and his wife, and cause that portion of the lands of Pubble, formerly in the possession of Susanna Corry, Thomas Montgomery, Hugh M`Caherry, and. Patrick Hamilton, containing about twenty-nine acres, to be asÂÂÂsigned to and vested in George Frith, by himself or such other person or persons as should obtain administration to the alleged will of Susanna Corry, the sum of £1100 and the portion of the lands to be in full satisfaction and discharge of all claims of George and Jane Frith upon the estates and assets of Susanna Corry ; and George and Jane Frith thereby agreed that they would not further oppose William Quinton in the suit pending in the PreÂÂÂrogative Court in regard to the alleged will of Susanna Corry, provided that they should not be disturbed in the possession of that part of the lands, or in receiving or enjoying that sum of money. The Petitioner charged that, at the time of the execution of that deed, George and Jane Frith had notice of his rights. The petition further stated, that it appeared from the memo EQUITY SERIES. 399 Hal of a deed poll, dated the 5th of January, 1856, that after re- V. C. Court. citing that Jane Frith was entitled to about twenty-four acres of 1868. the lands of Pubble, and had absolute power, notwithstanding n w,IIINTON her coverture, to appoint them, Jane Frith, in pursuance of the v. FRITH. power, appointed that those twenty-four acres should immediately after her decease remain upon trust for George Frith for life, and, after his death, in trust for James Betty (one of the Respondents), his executors, &c. Anne Quinton died without having made any appointment of the one-third bequeathed to her by Susanna Corry. The Petitioner attained his full age in February, 1863, and on the 14th of May, 1863, obtained letters of administration to Galbraith Moffatt of all his goods left unadministered by Anne Quinton. Ever since the 1st of May, 1848, George and Jane Frith had been, and they still were, in possession or in receipt of the rents of the whole of the lands assigned by the deed of 1802, and claimed to be entitled to them under the deed of the 1st of May, 1848, or under some other deed executed by William Quinton after his wife's death. The Petitioner submitted that he, on the death of Anne QuinÂÂÂton, became and still was entitled to the two-thirds bequeathed by William. Cluff to Jane Moffatt and Elizabeth Cluff ; and further submitted, as matter of law, whether he and the Repondents, Peterson and Hunter, in right of their respective wives, were enÂÂÂtitled to the one-third assigned to William Cluff, and bequeathed by him to Susaaina Corry. The petition further stated, that no renewal of the lease of June, 1753, had, so far as the Petitioner knew, been executed, although all the renewal fines had been paid ; that the lease under which David Rynd held in 1753 had been from time to time renewed, and was now a valid...