Holmes v Coghill
| Jurisdiction | England & Wales |
| Judgment Date | 05 August 1802 |
| Date | 05 August 1802 |
| Court | High Court of Chancery |
English Reports Citation: 32 E.R. 201
HIGH COURT OF CHANCERY
S. C. 12 Ves. 206. See Ashby v. Costin, 1888, 21 Q. B. D. 404; In re Roper, 1888, 39 Ch. D. 488.
[499] holmes v. coghill. Rolls. Aug. 3d, 5th, 1802. [S. C. 12 Ves. 20G. See Ashby v. Cos tin, 1888, 21 Q. B. D. 404 ; In re Roper, 1888, 39 Ch. D. 488.] Distinction between a Power and absolute property. A Power, unless executed, not assets for debts. Power executed by Will, but afterwards discharged ; and a new Power created. A subsequent codicil will not by the mere effect of republishing the Will be an execution of the Power. Though the rule is settled, perhaps with some violation of principle, but with no practical inconvenience, that equity will in certain cases, aid a defective execution of a Power, the want of execution cannot be supplied* By the settlement, previous to the marriage of Sir John Coghill, Bart., dated the 15th and 16th of October 1754, estates in Ireland, in fee simple, in the counties of Kilkenny and Cavan, and leaseholds for lives in the county of Kildare, were settled to the use of Sir John Coghill for life ; with remainder, subject to an annuity bv way of jointure and a term for raising portions for younger children, to the first and other sons of the marriage in tail male ; and it was declared, that Sir John Coghill should have full power by any deed or writing to be by him subscribed, sealed, and executed, in the presence of three or more credible witnesses, or by his last Will and Testament, by him signed, published, and declared, in the presence of the like number of witnesses, to charge the said premises in the counties of Kilkenny, Cavan, and Kildare, with any sum, not exceeding £2000, for such uses and purposes as he should think proper, but without prejudice to the aforesaid jointure and portions. Sir John Coghill, was also entitled under a Will to estates in the counties of Meath and Dublin ; with remainder in tail to his eldest son ; who attained the age of twenty-one in 1787. Soon afterwards they joined in suffering recoveries of all the estates, except the leaseholds; and by indentures of settlement, dated the 29th and 30th of June 1787, they conveyed to trustees and their heirs the estates in the counties of Kilkenny, Meath, and Dublin, and the leaseholds in the county of Kildare, subject to the jointure and provision for younger children, but freed and for ever discharged of a.ncl from all right and power by the said settlement reserved C. XU--7* 202 HOLMES V. COGHILL 7 VES. JUN. 500. to Sir John Coghill by Deed or Will to charge and [500] incumber the premises in the counties of Kilkenny and Kildare with any sum, not exceeding £2000, for such uses and purposes as he should think proper. This conveyance was declared to be in trust for securing an annuity to the son, and then to trustees for a term of 200 years ; and subject thereto, to the joint appointment of the father and son; and, in the mean time and until default of appointment, to Sir John Goghill for life ; and then to the survivor of him and his son. The trust of the term of 200 years was declared to be for securing the annuity to the son ; and then, that the trustees should at the request and desire of Sir John Coghill, to be signified, and to be by him signed, by demise, sale, and mortgage, of the premises in the counties of Meath and Dublin, comprised in the term., or of a competent part thereof, or by such other ways and means as they or the survivor, &c., shall think fit, raise and levy such sum or sums of money as Sir John Coghill should direct and appoint, not exceeding in the whole £2000 ; and pay the same to Sir John Coghill or his assigns in his life-time to or for his and their own use for ever ; or if the same or any part thereof shall not be levied, raised, and paid over, to him and assigns in his life-time, then upon trust by all or any of the ways and means aforesaid to...
To continue reading
Request your trial
-
TMSF v Merrill Lynch
...363 B.R. 650, referred to. (16) Harris v. Beauchamp Bros., [1894] 1 Q.B. 801, not followed. (17) Holmes v. Coghill(1802), 7 Ves. Jr. 499; 32 E.R. 201, referred to. (18) Holmes v. Millage, [1893] 1 Q.B. 551, not followed. (19) Maclaine Watson & Co. Ltd. v. Intl. Tin Council, [1988] Ch. 1; [1......
-
Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank and Trust Company (Cayman) Ltd and Others
...as deciding that the property was not owned by the bankrupt or that the court had no jurisdiction to order a power to be exercised: Holmes v. Coghill (1802) 7 Ves. Jun. 499; Thorpe v. Goodall (1811) 17 Ves. Jun. 388; 17 Ves. Jun. 460; contrast Bainton v Ward (1741) 2 Atk 172 (criticised at......