McCheane v Gyles (No. 2)
| Jurisdiction | England & Wales |
| Date | 1902 |
| Year | 1902 |
| Court | Chancery Division |
Practice - Parties - Adding Defendant - Joint and Several Liability of Trustees - Action against one Trustee only - Application to join Co-trustee for purpose of Contribution -
G. and C. were the trustees of a settlement. C. died, and X., his legal personal representative, lived in Ireland. M., the cestui que trust, brought an action against G., alleging a breach of trust by him and C., and claiming payment by G. of the amount lost by the breach. A third-party notice, by which G. claimed contribution from the estate of C., and the order giving leave to serve it on X. in Ireland, were set aside by the Court of Appeal without prejudice to an application by G., under Order XVI., r. 11, to add X. as a defendant to the action: McCheane v. Gyles, ante, p. 287.
On the application to add X. being made, it was opposed by the plaintiff:—
Held, that X. ought not to be added as a defendant against the plaintiff's wish.
THOMAS JONES, of Kilkenny (who died in 1863), by his will gave 1000l., which, in case his daughter Sarah Elizabeth should marry, was to be vested in trustees for the benefit of herself during her life, and after her death for the benefit of her issue. And he appointed his son, Thomas Jones, his executor.
By articles executed in Ireland in 1865, prior to the marriage of Sarah with Thomas Shaw McCheane, and to which they and Thomas Jones, the executor, were parties, it was agreed that when the executor or future personal representative of the testator should realize out of the assets 1000l., that sum should be paid to two trustees to be held on trust for Sarah for life, and after her death for her issue as she should appoint.
By a settlement executed in Ireland in December, 1874, to which T. S. McCheane and Sarah, Mary Jones (then personal representative of the testator), and Walter Gyles and John Cronyn were parties, Sarah appointed Gyles and Cronyn trustees of the 1000l. (which it was stated had been paid to them by Mary Jones) to hold the same upon the trusts of the will as varied by the articles; and the two trustees thereby expressed their consent to act.
In December, 1874, Gyles and Cronyn invested the 1000l. on a second mortgage, said to be a contributory mortgage.
On June 22, 1877, John Cronyn died, and probate of his will was granted to Caroline Eliza Cronyn, who was his widow and executrix and resided in Dublin.
In 1896 the mortgaged property was sold, but the proceeds of sale were not more than sufficient to pay off the amount due on the first mortgage, and the trust fund of 1000l. was accordingly lost.
In March, 1901, Sarah by deed appointed the whole fund to her only son, Thomas Ernest McCheane, and at the same time assigned her life interest to him.
T. S. McCheane, Sarah, T. E. McCheane, Gyles, and Cronyn all resided in Ireland; but in March, 1901, Gyles, the surviving trustee, happened to be in England, and T. E. McCheane brought an action against him charging him with breach of trust by investing on an improper security, and claiming payment of the 1000l. with interest for six years prior to the issue of the writ of summons.
On June 24, 1901, Byrne J., in chambers, made an order giving Gyles leave to serve on Caroline E. Cronyn, in Dublin, a third-party notice, by which Gyles claimed contribution from her, as John Cronyn's personal representative, to the extent of one-half of any sum that might be recovered in the action, on the ground that John Cronyn, as one of the settlement trustees, was equally liable with Gyles for the alleged breach of trust.
The third-party notice was served on C. E. Cronyn, and a motion by her to have the notice and the order on which it was based set aside or discharged was dismissed by Buckley J. on November 22, 1901.
C. E. Cronyn appealed, and on December 19, 1901, the Court of Appeal discharged the order of Buckley J. and the third-party notice and the order giving leave to serve the same out of the jurisdiction; but the order on appeal was made “without prejudice to any application which the defendant may make for the purpose of adding the appellant as defendant.”
The case is reported on...
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