The Right Honourable Joseph Leeson Earl of Milltown, and Barbara Countess of Milltown, his Wife, - Appellants; The Honourable William Le Poer Trench, and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1837 |
| Date | 01 January 1837 |
| Court | High Court of Chancery |
English Reports Citation: 6 E.R. 236
COURT OF CHANCERY.
Mews' Dig. xv. 1732; S.C. 4 Cl. and F. 276. See In re Blackford, 1884, 27 Ch. D. 676, 678.
REPORTS OF CASES heard in the House of Lords, upon Appeals and Writs of Error, and decided during the Session 1837. By richard bligh, Barrister-at-Law. Vol. XL IKELAND. (CouET of chancery.) The Eight Honourable JOSEPH LEESON Earl of MILLTOWN, and BAKBARA Countess of MILLTOWN, his Wife,-Appellants; The Honourable WILLIAM LE POEE TRENCH, and Others,-Respondents. [Mews' Dig. xv. 1732; S.C. 4 Cl. and F. 276. See In re Blackford, 1884, 27 Ch. D. 676, 678.] C. by his will devised to trustees, all his real estates for a, term of 500 years, upon trust, if there should be issue of his marriage, to raise and pay to his wife during her life an annuity of £2000, in addition to a provision of £400 a year made for her by the will of his father, but in satisfaction of dower. The further trusts! of this term were to raise portions for younger children, with provisions for maintenance; and in case of a deficiency of personal estate to pay debts and the legacies given by the will, to raise after the death of his wife, by sale, etc. of the term, such sum as should be sufficient to- discharge the legacies, etc.; and subject to the term, he [2] limited the estates to his first and other sons in tail male, remainder to his daughters in tail general; and in default of such issue, to his wife for her life in lieu of dower, and in satisfae tion of all provision by his own or his father's will; with remainders over. The testator then gave to M. his wife's sister £4000, to be paid within one year after his death, with interest at 5 per cent, until paid; and £3000 to be laid out in the public funds upon trust, to pay the interest to the separate use of 0., a married sister of his wife, and the principal to the use of her children at her death. He then bequeathed to divers persons, his kinsmen and others, a great number of pecuniary legacies of various amounts, but only in the event of his dying without issue living at his death; and many of these legacies were limited for life interests to parents, with remainder to children. Finally, the testator by his will gave a legacy of £2000 in trust for a, charity, and £200G to his wife, which he directed should be paid to her in any event, and in preference to' all other legacies (except the charitable bequest), with interest from his decease, at 5 per cent. He then directed " that all the legacies by his will bequeathed, should from the time when they should respectively become payable, bear interest at the rate of 5 per cent., and be raised and paid accordingly : that his funeral and administration expenses, and the charitable bequest, should be paid out of the produce of his personal estate': that the residue thereof should be applied in payment of his debts, and the other legacies which should take effect and become payable under his will; and in case his personal 236 MILLTOWN V. TRENCH [1837] XI BLIGH N.S. estate should be insufficient for that purpose, he charged the lands, etc. comprised in the term, with the payment of such debts and legacies, and directed the trustees to raise the same, pursuant to the trusts vested in them for that purpose;" and subject to' the payment of such debts and legacies, the testator bequeathed the residue of his personal estate to his wife . The testator died without leaving issue. The personal estate was deficient, and after application of the rents1, etc. of the real estates comprised in the term to supply the deficiency, including interest upon the legacies, there would be a surplus of rents amounting to £3400, to which the widow as tenant for life under the will would have been intitled. Held (affirming the decree) that the interest upon the legacies was payable out of the real estate, during the life of the wife. [3]CharlesHenryBaronCastlecoote, by his will, bearing date the 14th of September, 1822, devised to the Honourable William Le Poor Trench, the Plaintiff in this cause, and to Hulton Smith King, since deceased, and to John Sealy Townsend, Esq., one of the Defendants in this cause, and the survivors and survivor of them, all his government stock and stock in the government English and Irish funds:, which he was then possessed of or entitled to, and all sum and sums of money, stock, long annuities, or other personal or funded property to which he was or should be entitled in possession or reversion under the will of his late uncle, Oliver Tilsoti, with all interest and dividends due and to1 grow due thereon respectively, in trust that they should stand and be possessed thereof, and should take and receive the interest, dividends and annual produce of said stock and securities from and after his decease, and pay the same to hia son, Eyre Tilson Coote, in the said will called Eyre Coote, or permit and suffer or duly authorize and empower him to take and receive the same yearly and every year a,s the said interest and dividends or proceeds should accrue during his natural life, to and for his own use and benefit!; and from and after the decease of'his said son, in case his said son's then present wife, Barbara Coote, should survive him, in trust out of the said interest, dividends and annual produce of the said stock and securities, yearly and every yea,r during the natural life of the said Barbara Coote, to' pay to the said Barbara Coote one annuity or annual sum of £400 sterling, over and above all deductions during her life: [4] And after various bequests and devises of personal property and lands, and of certain specific and pecuniary legacies in his will particularly mentioned, the testator directed that all his debts, legacies, funeral, and administration expenses should be paid out of his personal estate, not thereby otherwise bequeathed, (of which arrears of rent would form a considerable part), and if the same (subject, to the charges and trusts thereinbefore mentioned,) should be insufficient for that purpose, he thereby charged and incumbered all his real and freehold estates with the payment thereof; and subject to the payment thereof, the testator gave, devised, and bequeathed all the rest, residue, and remainder of his estate and effects, real, freehold, and personal, of what nature or kind soever not therein disposed of unto' his son, Eyre Tilson Coote, his heirs, executors, administrators, and assigns, to and for his and their own use and benefit. And the testator thereby nominated, constituted, and appointed his brother Sir Eyre Coote, and the testator's agent John Hawkesworth, Esq., executors of his will, and thereby revoked all former wills and codicils by him made, and declared that to be his last will and testament. On the 22d of February, 1823, Charles Henry Lord Baron Castlecoote died, without altering or revoking his will, leaving Eyre Tilson Coote, his only child him surviving, who thereupon entered into the receipt of the different properties in the will mentioned. William Le Poer Trench and Hulton Smith King, two of the trustees named in the will, filed their original bill in the Court of Chancery in Ireland, on the 26th of January, 1825, against Eyre [5] Tilson Lord Baron Castlecootei, the son of Charles Henry Lord Castlecoote, and several others, to carry the trusts of the will intoi execution, and thereby prayed that the will might be decreed to be1 well proved, and that the trusts1 thereof might be carried into' execution, by and under the authority and directions of the Court of Chancery; and that for that purpose all necessary accounts might be ordered and directed to be taken, and particularly an ac- 237 XI BLIGH N.S. MILLTOWN V. TRENCH [1837] count of the real and freehold estates of Charles Henry Lord Baron Castlecoote, deceased, and of the incumbra.nces and charges thereon; and also an, account of the personal estate of the said Charles Henry; into1 whose hands the same had come, and how the same had been applied ; and a.n account of his debts, legacies, and funeral expenses, and the expense of taking administration and proving the will; and, if necessary, that an account might also be taken of the personal estate of John Hawkes-wo'rth, the executor of the said Charles Henry; into whose hands the same had come, and how the same had been applied ; and that the debts and legacies might be directed to be paid out of the said funds, and in such manner as should be fit and proper according to the rules of equity; and that, if necessary, the assets should be marshalled for that purpose; and that such parts of the personal estate as might be necessary for the purposes expressed in the will might be set apart, assigned, transferred, or invested, etc. Eyre Tilson Lord Baron Castlecoote, and Barbara Castlecoote, his wife, on the 8th of April, 1826, filed their answer to the original bill, and upon the 4th of November, 1826, filed a further answer thereto. [6] Eyre Tilson Lord Castlecoote died, without issue, on the 24th of February, 1827, leaving Barbara Lady Castlecoote his widow. By his will, bearing date the 23d of October, 1826, he devised unto Francis Gore and George Frederick Brook, their heirs, executors, and administrators, among other properties, the several estates de^ vised to him by his father Charles Henry Lord Castlecoote, together with all his real, freehold, and leasehold estates, messuages, lands, tenements, and hereditaments, whether for lives or years, situate, lying, and being in the counties of Dublin and Kildare, in the Queen's County, in the counties of Kilkenny, Tipperary, Clare, and Limerick, and elsewhere in Ireland; and also the impropriate tithes which formerly belonged to the Earl of Thomond, in the county of Clare ; To the uses, upon the trusts, and for the intents and...
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