Fulham, Lynch and McCarthy v McCarthy (Administrator of Alexander McCarthy) and Others
| Jurisdiction | England & Wales |
| Judgment Date | 25 July 1848 |
| Date | 25 July 1848 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 937
House of Lords
Mews' Dig. iv. 84; xi. 39; xii. 104. S.C. 12, Jur. 757, and, below, sub nom. M'Carthy v. M'Carthy, 9 Ir. Eq. R. 620. Commented on in regard to position of nun, in Allcard v. Skinner, 1887, 36 Ch. D. 160.
Pleading - Misjoinder - Issue.
[703] CECILIA FULHAM, MARGARET LYNCH, and MARIA M'CARTHY- Appellants; JOHN M'CARTHY (Administrator of ALEXANDER M'CARTHY), CATHERINE M'CARTHY, and Others,-Respondents [July 14, 17, 25, 1848]. [Mews' Dig. iv. 84; xi. 39; xii. 104. S.C. 12, Jur. 757, and, below, sub nom. M'Carthy v. M'Carthy, 9 Ir. Eq. R. 620. Commented on in regard to position of nun, in Allcard v. Skinner, 1887, 36 Ch. D. 160.] H.L. ix. 937 30a I H.L..C-, 704 FULHAM V. M'CARTHY [1848] Pleading-Misjoinder-Issue. Parties having adverse or inconsistent rights in the subject matter of a suit, cannot be joined as co-plaintiffs. (Infra, p. 715.) Nor can a party who has no interest, be joined as a plaintiff with one who has. (Infra, pp. 716 and 722.) Therefore, where one of the next of kin of an intestate, after assigning her distributive share of his estate, is joined, as co-plaintiff with the assignees in a bill against the administrator and the other next of kin, for an account and payment, there is a misjoinder of plaintiffs, of which the defendant may take advantage at any stage of the cause, and such misjoinder will, even on the hearing, be sufficient to occasion a dismissal of the bill. In a suit in which an assignor and the assignees of an equitable interest are made plaintiffs, an issue directed to try the validity of the deed of assignment is improper, as being an issue between co-plaintiffs, and not between them and the defendant. Quaere, Whether an assignment of property by a nun, in pursuance of a vow made on entering the convent, is valid. This was an appeal from a decree of the Lord Chancellor of Ireland, in a suit instituted there for the purpose of obtaining payment of two distributive shares of an intestate's personal estate (9 Ir. Eq. Rep. 620). Alexander M'Carthy, of Cork, merchant, died intestate, in July 1843, leaving a large personal estate and ten children, five sons and five daughters, his sole next of kin him surviving. He also left a widow, but she was, by a proviso in their marriage settlement, excluded from any share in his personal property. [704] Two of the intestate's daughters, Maria M'Carthy (an appellant) and Catherine (a respondent), in his lifetime, and with his approbation, became professed nuns, of the Ursuline order, in a religious house or convent, at Blackrock, near Cork, and he paid, for each, one thousand pounds to the convent, as her portion, that being about, if not more than, the sum usually paid on the entry of persons of their station in life into the convent. It is a rule of all the convents of the said order, that any property to which the nuns become entitled, after being professed, becomes the property of the community of their convent. Soon after the intestate's death, John M'Carthy, one of his younger sons, obtained letters of administration to his estate in the proper Ecclesiastical Courts in Ireland and England, and other countries where parts of the estate had been invested. Having possessed himself of the assets, to the amount of 90,000, after payment of debts, etc., he distributed their respective shares among all his brothers and sisters, except the said Maria and Catherine, to whom he made no payment. Some attempts at an arrangement with them, whereby their shares might be divided among their four younger brothers,-the eldest being amply provided for by the real estate, in addition to his share of the personalty,-were unsuccessful. In December 1843, Maria M'Carthy executed an assignment of all her share of the intestate's estate to the other appellants, Cecilia Fulham and Margaret Lynch, professed nuns of the same convent, their executors, administrators, and assigns, as trustees for themselves and the other members of the convent, with power to compel payment, and give receipts, and put in answers for her in Chancery, etc. Catherine M'Carthy executed a similar deed of assignment in March 1844. The assignees (the two first-named appellants) and Maria (the other appellant), one of the assignors, filed a [705] bill in Chancery, in July 1844, against the said administrator, and the other sons and daughters of the intestate, including Catherine, who declined to join as plaintiff, although she concurred in the object of the suit. All the other members of the convent were made formal defendants. The bill, after stating to the effect above mentioned, prayed that accounts might be taken of the debts of the intestate, and of his personal estate and effects, etc., and that the appellants might be declared, in right of Maria and Catherine, entitled to two equal tenth shares thereof; that the amount of such two shares might be ascertained, and that each of the respondents, the sons and daughters of the intestate, except Catherine, might be decreed to pay to the appellants, Cecilia Fulham and Margaret Lynch, as 938 pulham v. m'carthy [1848] i h.l.c., Toe assignees of Maria and Catherine, a proportional part of the assets of the intestate, which had been paid to them respectively by the administrator, and that they (the said assignees) might be declared entitled to a lien upon such assets of the intestate as were still subsisting in specie, for satisfaction of the full amount of the distributive shares of the said Maria and Catherine. The defences made by the several answers of the administrator and the intestate's other sons and daughters, except Catherine, were that the sums of 1000 and 1000 paid on the profession of Maria and of Catherine respectively, were understood and intended by them and their father to be their full portions; and they were barred by the arrangement then made from any further claim on him or his estate; that the deeds of assignment executed by them, were extorted from them by undue influence and coercion, ajid were therefore void in equity; that even if the assignments were truly executed, it was contrary to public policy to give effect to instruments executed in obedience to religious vows, and disposing of property to religious uses at the will of a superior, without regard to [706] the moral or civil obligations of the parties making such vows; that Maria and Catherine being professed nuns at the time of executing the said assignments, they were in a state of civil death, and incapable of acquiring or disposing of any property. An answer put in for Catherine M'Carthy, without oath, by consent, stated that she was desirous to have her share of the intestate's property applied to the purposes of the convent, and that she executed the assignment in order that her share should vest in the assignees for the said purposes; and that, although she concurred in the objects of the suit, she declined to be a plaintiff therein, as she had no wish to be engaged in litigation with her brothers. A great body of evidence was taken on both sides. The Lord Chancellor, upon the hearing of the 'cause, offered the plaintiffs an issue to try whether the deeds of assignment were executed by Maria and Catherine of their own free will; and their counsel declining the issue, his Lordship decreed " that the Court offering to direct an issue at law to try whether the two deeds of assignment in the pleadings mentioned, bearing date the 29th day of December, 1843, and the 13th day of March, 1844, were respectively executed by the said plaintiff, Maria M'Carthy, and the said defendant, Catherine M'Carthy, as free agents; and the counsel at the bar for the said plaintiffs declining to take such issue, they insisting that without any such being directed, the plaintiffs were entitled to a decree; and it appearing to the Court that the said deeds were not, nor was either of them, executed by the said plaintiff, Maria M'Carthy, and the said defendant, Catherine M'Carthy, as such free agents, but that, on the contrary, the same were executed by them respectively not of their free will, but under the pressure and compulsion of the vow of obedience taken by them respectively on becoming professed [707] members of the convent in the...
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