William Shaw, - Appellant; Barry Edward Lawless-Respondent

JurisdictionEngland & Wales
Judgment Date15 August 1838
Date15 August 1838
CourtHigh Court of Chancery

English Reports Citation: 7 E.R. 353

FROM THE COURT OF CHANCERY IN IRELAND.

William Shaw
-Appellant
Barry Edward Lawless-Respondent

Mews' Dig. iv. 786; xiv. 796; S.C., 1 Dr. and Wal. 512; LI. and G. t. Plunk. 558. Discussed and followed in Finden v. Stephens, 1846, 2 Ph. 142; and see Foster v. Elsley, 1881, 19 Ch. D 519; Rhodes v. Forwood, 1876, 1 A.C. 276.

SHAW V. LAWLESS [1837,1838] V CLARK & FINNELLY. [129] APPEAL from the court of chancery in ireland. WILLIAM SHAW,-Appellant; BARRY EDWARD LAWLESS-Respondent [March 20, 21, 1837 ; August 15, 1838]. [Mews' Dig. iv. 786; xiv. 796; S.C., 1 Dr. and Wai. 512; LI. and G. t. Plunk. 558. Discussed and followed in Finden v. Stephens, 1846, 2 Ph. 142; and see Foster v. Elsley, 1881, 19 Ch. K 519 ; Rhodes v. Forwood, 1876, 1 A.C. 276.] A testator devised certain real estates to trustees for the use of W. S. for life, with remainders over, and he directed the residue of his personal estate to be invested in the purchase of other real estates. He gave a legacy of 100 to B. E. L. as a token of esteem. The will then contained this clause: " And it is also my particular desire that my said executors, whilst acting in the management of all or any of my affairs under this my will, as also my friend W. S. when he shall enter into' the recefpt and perception of my said rents of K. V. and K., shall continue the said B. E. L. in the receipt and management thereof, and likewise shall employ and retain him in the receipt, agency, and management of the rents and issues of such other lands and premises as shall and may be purchased and settled in pursuance of the directions hereinbefore contained, at the usual fees allowed to agents, he having acted for me since I became possessed of said estates fully to my satisfaction." Held, by the House of Lords, reversing the judgment of the Court below, that these words did not create a trust in favour of B. E. L. Held also, that, as this case might have been discussed on demurrer without any inquiry into the fitness of B. E. L. for the situation of agent, the costs incurred by an inquiry of that sort in the Court below had been needlessly incurred, and should not be paid by B. E. L. to W. S., but that each party should in that respect bear his own costs. In the year 1818, William Alexander Shaw, a merchant of Dublin, became the purchaser of the lands of Kentstown, Veldanstown, and Knockirk, in the county [130] of Meath, commonly known by the name of the.Kentstown estate, and thereupon appointed the Respondent his land agent of such estate. On the 17th of August 1829, Mr. Shaw made his will, eixecuted and attested so' as to pass freehold estate, whereby, after reciting that he was seised in fee of the lands of Kentstown, Veldanstown, and Knockirk, in the county of Meath, and was possessed of a very considerable personal property, he devised the same to trustees, to the use of his friend William Shaw (the Appellant), then aged about 20 years, for the term of his life, without impeachment of waste; and then to the sons of the said William Shaw, in tail, with divers remainders over. Then followed several pecuniary legacies, and amongst others the following: viz. " I also give and bequeath unto my agent and friend, Barry Edward Lawless, of Harcourtstreet, in the county of Dublin, Esq., the sum of 100, as a token of my esteem for him." The will then proceeded as follows:-" I also give and bequeath to the industrious poor of my estate of Kents town, Veldanstown, and Knockirk, in the co:unty of Meath, the sum of 150, which sum I hereby direct shall be paid by my said executors to my agent, the said Barry Edward Lawless, to be by him distributed amongst them in such manner, shares, and proportions, and to such objects of charity residing thereon, as well as in the neigh bourhood thereof, as he shall deem most advisable and deserving of pecuniary aid. And it is also my particular desire, that my said executors, whilst acting in the management of all or any of my affairs under this my will, as also my friend William Shaw, when he shall be entitled to enter into the receipt and perception of my said rents of Kentstown, Veldanstown, and Knockirk, shall continue Ihe said Barry [131] Edward Lawless in the receipt and management thereof, and shall likewise employ and retain him in the receipt, agency, and management of the rents and issues of all such other lands and premises as shall or may be purchased and settled in pur suance of the directions hereinafter contained, at thei usual fees allowed to agents, H.L. vii. 353 12 V CLABK & FINNELLY. SHAW V. LAWLESS [1837, 1838] he having acted for me since I became possessed of said estate fully to my satisfaction. I give, devise, and bequeath to my said friend and agent, Barry Edward Lawless, the sum of 150 for the purpose next hereafter mentioned; namely, that he may be enabled to purchase and erect a monumental tablet or slab, containing inscribed thereon the names of the members of my family who have been interred in my burial-ground of Kentstown, and the periods of their deaths; and I desire that the said monumental tablet or slab may be erected in the interior of the church in Kentstown." The will authorised the trustees to receive the rents during the Appellant's minority, and directed them to invest the same, " save such part as shall be applied towards his maintenance and education, and such part thereof as shall be requisite to pay and satisfy the annuities by this my will charged on said lands as aforesaid, in government securities, and shall in like manner from time to time invest the dividends and interest of such securities in the purchase of government securities, so as that the whole may accumulate during the minority of the said William Shaw, and if he shall live to attain the age of twenty-one years be vested and payable to him on his attaining that age; but if he shall die without attaining that age, it is my will that such rents, and the accumulations thereof, shall from and after his decease belong to and be a part of. my residuary personal estate." The testator bequeathed the [132] residue of the personal estate to his trustees, to invest the same in the purchase of lands to be settled to the same uses as the devised estates; he also directed them how to lay out the money till so invested, and declared that the purchases and investments made during the Appellant's minority, were to be made with the consent of a Master in Chancery; and after the Appellant attained twenty-one, the investments were to be made with his consent in writing. And he appointed guardians for the Appellant during minority. On the 29th of October 1829, the testator died, being seised of the estates already mentioned, and also possessed of personal property, principally in the funds, amounting to about 90,000; and his executors having ascertained the residue of his personal estate, proceeded in execution of their trust to invest the same in the purchase of real estates, and purchased certain lands called the Cruisetown estate, situate also in the county of Meath. They also continued the Respondent in the general duties of land-agent over the estate, in the same manner as he had been by the testator in his lifetime, and also employed him as general law agent and confidential solicitor in the business of effecting and completing the purchase of other estates in execution of their trust. In December 1829, the Appellant attained twenty-one, and in the summer following, upon the completion of the purchase of the Cruisetown estate, the Respondent being about to enter upon thei duties of land agent over that estate, he was informed by the Appellant that it was not his intention to employ the Respondent further as his land agent over either estate, and that he had in fact appointed another person to that employment. [133] The Respondent, considering that he had a right to be continued in the agency, or to a pecuniary compensation, did, by a notice in writing, dated the, 21st of August 1831, represent to the Appellant in a formal manner, the rights which he claimed under the testator's will; and after stating that he was ready and willing to act as such agent if permitted, called upon the Appellant either to permit him to act as such, or to make him compensation. The Appellant having declined to comply with this requisition, the Respondent, on the 8th of September 1831, filed his bill in the Court of Chancery in Ireland, setting forth in substance the several matters aforesaid, and praying that the Respondent might be declared entitled, according to the true construction of the will of William Alexander Shaw, deceased, to be continued by the Appellant in the receipt of the rents, etc., of the lands of Kentstown, Veldanstown, Knockirk, and Cruisetown, and of all or any lands, etc., which might be thereafter purchased for the Appellant's use with any part of the residue of the testator's personal property, pursuant to the trust for that purpose created by his will, as land agent thereof, with the usual fees allowed to such agents, and for general relief. The Appellant put in his answer, admitting that the Respondent had been employed by the testator during his lifetime, and that the amount of fees payable in respect of the agency was properly stated by the bill; but insisted that the clause of 354 SHAW V. LAWLESS [1837, 1838] V CLARK & FINNELLY. the will relied on, merely expressed a wisih or desire which was not imperative upon the Appellant; and that, according to the true construction of the will, he was at liberty to employ the Eespondent or not, just as he might think proper. [134] This cause was heard in 1833, before Lord Plunkett, then Lord Chancellor of Ireland, who, on the 29th of May, decreed that the Respondent's bill should stand dismissed with costs (see the report of his Lordship's judgment in Lloyd and Goold's Case, temp. Sugd. p. 165 n). The Respondent presented a petition of rehearing, in December 1834, to...

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