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John McDonnel, - Appellant; Henry White (now Lord Annaly), - Respondent

Nominate Series English Reports Cited authorities 1 Cited in 4 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date30 May 1865
Date30 May 1865
CourtHouse of Lords

English Reports Citation: 11 E.R. 1454

House of Lords

John McDonnel
-Appellant
Henry White (now Lord Annaly)
-Respondent

Mews' Dig. xiv. 608.

Trust - Limitation of Time - Accounts - Arrears - Delay.

JOHN McDONNEL,-Appellant; HENRY WHITE (now Lord ANNALY),- Respondent [May 19, 22, 23, 30, 1865]. [Mews' Dig. xiv. 608.] Triist-Limitation of Time-Accounts-Arrears-Delay. Though the rule as to limitation by time does not apply in the case of express trusts, yet, as to them, in equity the general rule is, that stale demands are not to be encouraged. 1454 m'donnel v. white [1865] xi h.l.c., 571 In taking accounts against a trustee, when he is to be fixed with a personal liability, his good faith is to be considered, and every fair allowance is to be made in his favour, especially if the demand against him is one which arose many years ago, and the beneficiary was at the time cognisant of all the matters connected with it. A., being greatly in debt, executed a deed of trust for the benefit of creditors, and, among the property assigned under the trust deed was a lease for lives renewable for ever, on which the rent reserved was really a high rack-rent; the tenant complained, and the trustee, with the knowledge of A., though without his consent, but with the full assent of A.'s brother, to whom A. had committed the management of his affairs, received from the tenant an abated rent; A. complained of the abatement, but he took no steps to put an end to it : Held, that the estate of the trustee could not, after the expiration of the trust, be called on to make up the deficiency. While the trust was in existence, A., who had been absent from the country, returned, was informed of all that had occurred, and made an affidavit in a suit then pending, which had been instituted by one of his creditors. In this suit a receiver was appointed over one of the estates included in the trust: Held, that from the date of this appointment the power of the trustee was at an end, and that, as by the law of Ireland, the [571] receiver's duty related as well to the arrears then due from the tenants of that estate, as to those which would afterwards become due, and consequently, no steps having been taken to enforce payment from the trustee of arrears which, before the appointment of the receiver, he had suffered to accrue, his estate could not, after the lapse of many years, be made liable for those arrears. Sir Joseph Wallis Hoare, Bart., was in 1816 seised for life of an estate in ihe county of Cork; and was entitled in remainder, under a settlement (after the death of his mother), to lands called the Wallis estate, which comprised a farm celled Wise's farm. He was also entitled to the " unsettled Hoare estates," which comprised certain lands, called Dromerk, Naskin, Couranig, etc., all in the same county; these were subject to the payment of certain debts and legacies charged on them by Sir Edward, his father. He was himself indebted to various persons, and it was arranged that he should assign all his estates to Peter Maziere, on trust for the benefit of creditors. An indenture was accordingly executed on the 14th September 1816, to which Sir Joseph Wallis Hoare and Mr. Maziere were parties; but which was also ratified by some of Sir J. W. Hoare's creditors, by their indorsement. This deed recited that the unsettled Hoare estates were subject to incumbrances of Sir Edward, mentioned in the first Schedule to the deed, and that Sir J. W. Hoare was himself indebted to the persons mentioned in schedules 2 and 3; some of which debts bore interest; that Sir J. W. Hoare had effected a policy on his own life for the sum of £4000 in the name of Maziere, and had agreed to assign the estates, this policy, and two annuities (of £200 and £100 respectively), to Maziere, on trust, first, to pay the costs attending the execution of the trust, and five per cent, to Maziere, or [572] any attorney to be appointed by him, on all monies received; in the next, to allow Sir J. W. Hoare £700 a year for maintenance; then to pay the interest on the debts, etc., in schedule 2, and the annual premium on the policy; then the principal of the debts in schedule 2, and then to pay off the debts in schedule 3. The deed then duly effected the assignment to Maziere, for the period of 21 years upon the above trusts, and after satisfying them, the ultimate trust was for the benefit of Sir J. W. Hoare. There were three schedules annexed to the deed. The first contained an account of the debts of Sir J. W. Hoare's father, affecting the unsettled estates, which, by his father's will, were subjected to a trust for sale; the second, the bond and judgment debts, and annuities of Sir J. W. Hoare himself; and the third, of the bond and simple contract debts, due from him to creditors in England. The policy for £4000 was to expire in 1823. Soon after the execution of the deed, Sir J. W. Hoare came 1455 xi h.l.c., 873 m'donnel v. white [1865] to reside in England; his mother died not long afterwards, and the trustee entered on the beneficial possession of the Wallis estate. In 1819, Sir J. W. Hoare being harassed by his creditors, determined on leaving England, and residing permanently in France. On quitting England, he executed a power of attorney to his brother, the Rev. Thomas Hoare, then residing near Cork, authorising him, at the request and with the approbation of Maziere, to demise the land to which he was entitled for any term of years or lives, to remove tenants, and make such allowances and abatements or deduction to the tenants, as to the said Thomas Hoare and Maziere should appear reasonable. Among the creditors in the " unsettled estates " was a Mr. George Oakley. He was not one of those who [573] had ratified the trust deed, and, in the year 1819, he filed a bill in the Court of Chancery in Ireland, to carry into effect the trusts of Sir Edward's will, for a sale of the unsettled estates, and for a receiver in the meantime. The suit went on slowly, but in 1823, a receiver was appointed over these estates. On the marriage, in 1824, of Captain Edward Hoare, the eldest son of Sir J. W. Hoare, the said Sir J. W. Hoare made a promise that he would leave the whole management of his estate to the Captain, with the advice and assistance of the Rev. Mr. Hoare, his uncle; and this arrangement was in many instances strictly acted on. On the expiration of the insurance, in 1823, a new insurance for a like sum of £4000 was effected by Maziere on the life of Sir J. W. Hoare, and Maziere paid the premiums out of the rents. In 1828, a suit was instituted by Foley, one of the creditors of Sir J. W. Hoare, and judgment being given in his favour, Maziere...

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