McCan v O'Ferrall and Others
| Jurisdiction | England & Wales |
| Judgment Date | 27 April 1841 |
| Date | 27 April 1841 |
| Court | House of Lords |
English Reports Citation: 8 E.R. 12
House of Lords
As to submission by married woman, see Conolan. v. Leyland, 1864, 27 Ch.D. 634. As to printing evidence, see Directions for Agents (Annual Practice, 1901, vol. ii 664, rr. 22 et seq.; St. O. H. L. V. (2). As to judgment with consequential directions, cf. Clephane v. Edinburgh (Magistrates of), 1865, 4 Macq. 604.
Administrator's and Receiver's Accounts Re - opened - Concealment and Fraud - Award - Practice.
[30] JOSEPH HENRY M'CAN,-Appellant; CATHERINE O'FEKRALL and Others,-Respondents [April 7, 10, 13, 1840; April 27, 1841]. Et e Contra. [As to submission by married woman, see Conolan v. Leyland, 1864, 27 Ch.D. 634. As to printing evidence, see Directions for Agents (Annual Practice, 1901, vol. iL 664, rr. 22 et seq.; St. 0. H. L. V. (2). As to judgment with consequential directions, cf. Clephane v. Edinburgh (Magistrates of), 1865, 4 Macq. 604.] Administrator's and Receiver's Accounts Re-opened-Concealment and Fraud- Award-Practice. By A.'s will in 1783, his widow, whom he appointed executrix, was to receive 400 a year for the maintenance of herself and their children, but only 60 a year 12 m'can v. o'feerall [1840-41] vm clark & finnelly, 31 for herself if she married again. She proved the will, and was appointed receiver of her children's fortunes: she married again in 1791, but concealing her marriage, passed her accounts as widow, taking credit for the 400 a year. On her death in 1794, B. her second husband administered to her and to her first husband's estate; and having been also, appointed receiver of the children's fortunes, passed his accounts in continuation, of the widow's, without acknowledging their marriage. All the children having attained their majority in 1802, disputed B.'s accounts, which were then, referred to1 arbitration. C., the eldest of the children, married before the award was made, and one of the arbitrators was a trustee of her settlement: her marriage also was concealed from the Court, and the accounts afterwards passed described her by her maiden name. B. paid her husband, as if under the award and in ignorance of the settlement, sums of money which ought to have been, applied to' the trusts of the settlement.-Held (reversing decrees made on. a bill filed by C. and her children in 1836, against B. and the trustee), that all the accounts of A.'s estate should be again taken by the Master without regard to the award, or to' the accounts passed subsequently to C.'s marriage: that B.'s estate should be charged with the difference between 60 and 400, which his wife had received : and that consideration of the liabilities of C.'s husband, and of the trustee, under their marriage settlement, should be reserved until after the report.-(See the Order, infra, [8 Cl. and F.] p. 67.) A submission, by a woman to arbitration is revoked by her marriage before the award is made [8 Cl. and F. 62]. Matter not printed in the papers cannot be made the subject of argument before the House [8 Cl. and F. 50]. The House, in remitting a cause to the Court below to carry its directions into effect, will, where necessary, not merely declare the principle of its order, but state those directions fully om the face of the order [8 Cl. and F. 66]. Arthur Forbes, late of Drumconderah, in the county of Meath, clerk, by his will dated the llth of July 1783, after giving certain legacies to [31] each of his four children, bequeathed to his wife Margaret and his children the sum of 400 a. year for her and their maintenance, clothing and education, for so long as his said wife should continue unmarried; but in case she married again, she was only to be entitled in lieu thereof to 60 a year. And after some specific bequests of his furniture, he gave the residue of his property to his, wife and children, to be equally divided between them share and share alike; and appointed his wife, and his niece Priscilla Forbes, executrixes of his will. In July of that year the testator died, leaving his widow and two daughters, namely, the Respondent Catherine, now Catherine O'Ferrall, Priscilla, now Priscilla O'Connor; and likewise two' sons, namely, Arthur, who. lived till the year 1823, and John, who died at about six years of age, three years after the death of his father. On the 24th of February 1790, the widow Margaret Forbes alone duly proved the will; and in May 1790, upon her petition, her three surviving children, the Respondent Catherine, and Arthur and Priscilla, were made wards of Chancery. In June 1791, the said Margaret Forbes intermarried with, Ross M'Can, the father of the Appellant. On the 26th of June 1792, Margaret M'Can passed her accounts as receiver of the fortunes of her children. In the order appointing her such receiver1 she was described as Margaret Forbes, and such accounts were passed by her in regular form, in that name, when all just allowances were made, and noi objection taken: to her continuance of the name and description by which it appeared that she had been appointed receiver. On the 7th of November 1794, Margaret M'Can [32] died intestate; and on the 20th of February 1795, Ross M'Can, her husband, took out letters of administration to her, and also letters of administration de bonis non to the testator Arthur Forbes, durante mimaritate of his children. On the 4th of December 1795, Roes M'Can, as such administrator of Margaret Forbes, and also, as administrator de bonis non durante minoritate, etc. of the testator Arthur Forbes, duly passed his accounts of the estates of the said Margaret M'Can and 13 VIII CLARK & FINNELLY, 33 M'CAN V. O'FERRALL [1840-41] Arthur Forbes, ini which his children were interested, before Edward Westby, esq., the Master to whom the matter of the said infants stood referred; which accounts were prepared under the direction of counsel, and no exceptions were taken to them, iio r was any objection made on the part of Mr. Walker, who* was the guardian of the said infants' fortunes. The said Margaret M'Ca,n having, as it wa,s alleged, fraudulently passed her accounts in the name of Margaret Forbes, Boss M'Can, in continuing the same accounts, was obliged to describe himself as the administrator of Margaret Forbes; but no attempt was made by him to conceal his marriage, which, in fact, appeared on the letters of administration, and alone ga,ve him a, title as her personal representative, by virtue of which he acted in the infants' affairs. The above accounts having been sworn toi and approved, were duly allowed by the Master, and by two subsequent orders: of the 8th of January and 31st of March 1796, Ross M'Can was appointed guardian of the persons and receiver of the fortunes of the said infants, in the room of Margaret M'Can, deceased. Catherine and Priscilla Forbes respectively attained their ages of 21 years in the mo-nth of February 1797, and March 1799; and Arthur Forbes attained [33} his majority in the month of June 1801, and on, the 27th of August following, took out letters of administration! de boms non of his father. Differences having arisen between Ross M'Can and the late minors respecting the amount of the testator's assets, notwithstanding such passing of accounts as aforesaid, and their several shares therein, it was agreed by the parties to refer all matters in difference between them to the Right honourable Arthur Browne, his Majesty's then prime serjeant-at-law, and Gerald O'Ferrall, esq., barrister-at-law. On the 22d oif May 1802, the Respondent Catherine intermarried with John O'Ferrall, who had been employed by her aa her solicitor1 in the reference. Gerald O'Ferrall, esq., the arbitrator, was made trustee under the settlement executed on occasion of this marriage. Ross M'Can by his answer, sworn and filed in a suit of Forbes v. M'Can, and in which suit the fact of the said marriage was directly in issue, denied that he had any intimation, of the said marriage until some time in the month of August or September following. On the 26th of June 1802, the arbitrators published their award, whereby amongst other things they directed that Ross M'Can, should pay to the Respondent Catherine O'Ferrall, in the award described by her maiden name of Catherine Forbes, the sum of 4872 13s. 4d., with interest on, the same from the 7th of January then last past. The greater part of the assets of the said testator consisted of mortgages and other securities,, and which were not wholly realized till many years after the date of the i-aid award; but shortly after the date thereof, the said Ross M'Can, commenced paying large sums of money to the said John O'Ferrall; and by an account proved in the aforesaid cause of Forbes v. [34] M'Can, and in evidence in the present suit, the said John O'Ferrall acknowledged that the sum of 8004 16s. 6Jd. was so paid by Ross M'Can between the 18th of September 1802 and the 8th. of November 1816, on account of the fortune of his said wife; a part of which, as appears by the said accounts, was paid to the Respondent Catherine O'Ferrall herself. On the 16th of July 1806, the Respondent Catherine O'Ferrall presented a petition to the Court, under her maiden name of Forbes, in which petition, the fact of her marriage wa,s concealed, praying that the sum of 1000, part of the money then standing to the account of the minors, might be paid o,ut toi her; and which having been ordered on the 19th of the same month, she received the same, and signed her name to the receipt for the said sum as Catherine Forbes, ini the book of the Accountant-general. Ross M'Can died in the month of February 1828, having first made his will, and the Appellant shortly after his death proved the same, and thereby became his legal representative; and letters; otf administration, de bonis non of Margaret Forbes were also granted to the Appellant on the 27th of June 1829. On the 25th of May 1832, the Respondent Catherine O'Ferrall, by...
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