Report of Cases

DECIDED IN ALL

THE COURTS OF EQUITY AND COMMON LAW IN IRELAND.

JUDICIAL COMMITTEE OF THE
PRIVY COUNCIL.-1854.*

scribed as of the town of Youghal, in the County of Cork, clerk, of the first part; Mary Carew, now IN THE MATTER OF THE ESTATE OF THOMAS Croker, his eldest daughter, of the second part; PONSONBY CARE W.Walter Croker, therein described as of Lisnabrin, Oct. 18. in the County Cork, captain in the Royal Navy, of [Reported by R. W. OSBORNE, Esq., Barrister-at-Law.] the third part; and the said Thomas P. Carew and A, a father, on the marriage of one of his daugh- the said Edward Croker of the fourth part; after ters, passed a bond to A and B, conditioned for reciting that a marriage was intended between the the payment of £2000, and was a party to the said Walter Croker and Mary Carew (and which settlement, whereby the sum secured by the bond was shortly afterwards duly solemnized), and rewas limited upon the trusts therein contained. citing that the said Walter Croker, for the purThe father by his will directed his debts and lega-pose of securing the annual sum of £60, to be cies to be paid, and charged same upon his real estate in aid of his personalty, and devised the lands of D to the said A, and appointed H and two others his executors; the said A received sufficient assets for the payment of said bond debt, but did not in fact retain or pay same. The lands devised to the said A were sold in the Incumbered Estates Court. Held, that under the above state of facts, the said bond debt was payable out of the proceeds of the said sale. Richards v. Molony overruled.

payable to the said Mary Carew during her life, in the event of her surviving him, and for other purposes in said indenture mentioned, had agreed to advance unto the said Ponsonby May Carew the sum of £1,000, upon his, the said Ponsonby May Carew, securing the same in the manner in said indenture mentioned; and also passing his bond, with warrant of attorney for confessing judgment thereon, unto the said Thomas P. Carew and Edward Croker, bearing equal date with the said indenture, in the penal sum of £2,000, conditioned for the payment of the same sum of £1,000, with interest at the rate of 6 per cent. per annum. The said Ponsonby May Carew granted and conveyed unto the said Thomas P. Carew and Edward Croker, their executors, administrators, and assigns, the lands of Ardo therein described, to hold from the solemnization of the said intended marriage, for the term of 100 years, upon trust, among others, to permit the said Walter Croker during his life to have, receive, and take out of the rents, issues, and profits of the said lands, one annuity, yearly rent-charge, or sum of £60; and upon further trust, that in case the said Mary Carew should survive the said Walter Croker (which event has happened), to permit the said Mary Carew and her assigns during her life out of the rents and From the petition it appeared that by indenture profits of said lands, to have and receive the anbearing date the 16th of April, 1822, and made be-nual sum of £60, clear of all deductions, to be tween the Rev. Ponsonby May Carew, therein de

THIS was an appeal by Thomas Ponsonby Carew and Edward Croker from an order of the Incumbered Estates Court, bearing date the 13th of April, 1854. By that order it was declared that inasmuch as the petitioner, Thomas P. Carew, was one of the executors of Ponsonby May Carew, the obligor of a bond bearing date the 16th day of April, 1822, and also one of the obligees named in the said bond, and had received assets of the obligor sufficient to pay the said bond debt; that the petitioner, Thomas P. Carew, notwithstanding he was entitled to the said bond debt only as a trustee jointly with the petitioner, Edward Croker, must be presumed to have retained sufficient of the said assets to satisfy the said bond, and that same is now satisfied, and is no charge against the obligor's estate.

The following Privy Councillors were present:-The Blackburne, the Right Hon. R. Keating, Judge of Prerogative Court, and the Right Hon. J. Napier.

Lord Chancellor, Monahan, C. J., the Right Hon. F.

paid and payable by equal portions on every 25th day of March and 29th day of September. And upon further trust, after the decease of the survivor of the said Walter Croker and Mary Carew, by sale or mortgage of the said lands, or any part

of the said term, if such mortgage or sale shall be Henry Martley, Q.C. (with John Garde Brown,) by them, the said Thomas P. Carew and Edward for the petitioners, admitted that this case and RichCroker, or the survivor of them, or the executors, ards v Molony, (2 Ir. Ch. R. 1,) were similar, and administrators, or assigns of such survivor, deemed to succeed on this appeal it is necessary that that necessary to levy and raise the sum of £1,000 law-case be overruled. We do not dispute the correctful money of Ireland, together with interest for the same at the rate of 6 per cent. per annum, calculated from the time when such annuities or yearly sums of £60 should cease to become payable, to the time when such principal sum and interest should be so raised in trust for the younger children of the said intended marriage. That the said Ponsony May Carew executed his bond, with warrant of attorney for confessing judgment thereon, bearing even date with the hereinbefore stated indenture, and as a collateral security therewith, wherein he bound himself, his heirs, executors, or administrators, unto your petitioners, the said Thomas P. Carew and Edward Croker, their executors, administrators, and assigns, as trustees of the said indenture, in the penal sum of £2,000, with a condition thereunder written, making void the same on payment by the said Ponsonby May Carew, his heirs, executors, or administrators, unto your petitioners, their executors, administrators, or assigns, of the sum of £1,000, on the 16th day of April, 1823; and it was agreed farther, that said bond should not bear interest during the life of the said Ponsonby May Carew. That judgment was never entered upon said bond, and the said marriage between the said Walter Croker and Mary Carew was duly solemnized.

The said Ponsonby May Carew died in 1826, having by his last will and testament, of the 25th of February, 1826, devised unto his eldest son Thomas P. Carew, one of the petitioners, his heirs and assigns, the several lands and estates that have been already sold in this matter, subject to his debts, and appointed his wife, Anne Carew, the petitioner, Thomas P. Carew, and his son, Walter Carew, executors and executrix of his will, probate to which was obtained by Thomas P. Carew and Walter Carew on the 5th day of April, 1828. Walter Croker died in 1840, leaving his wife, Mary Carew, now Croker, who is still alive, and several children him surviving. The petitioner, Thomas P. Carew, received of the assets of the said Ponsonby May Carew sufficient for the payment of his debts, but he did not in fact pay off the said bond debt or retain any portion of the said assets which have long since been paid away. The sum of £1,000 secured by the said indenture and bond has never been paid to or received by the petitioners or the parties beneficially entitled thereto, but interest has been paid thereon to the said Mary Carew, otherwise Croker, by Walter Carew and Thomas P. Carew up to the year 1844. The lands so devised by Ponsonby May Carew to petitioner, Thomas P. Carew, were sold in the Incumbered Estates Court in April, 1853, for £5,705, which was insufficient to pay the several charges thereon. The lands of Ardo, in which the sum of £1,000 was secured, were not included among the lands sold in this matter. The petitioners prayed to be paid said sum of £1,000 out of the proceeds of the lands sold in this matter.

ness of that decision so far as the legal question is involved, but submit that in the present case equity will control the legal effect. If a creditor makes his debtor his executor, although a court of law holds it to be an extinguishment of the debt, yet equity has in many cases disregarded this legal consequence, and held that the debt still existed, and that the executor was a trustee in equity for the creditors of the testator, and even for his legatees,* Willock v. Dargan, (2 Ir. Ch. R. 39.) The case of Plummer v. Marchant, (3 Burr. 1380,) cited in Richards v. Maloney, we submit, only decides that the executor may retain, but does not decide that a simple retainer without bringing the co-trustee into privity with the money so retained will bar the cotrustee on the cestui que trust. Equity will not, in all cases, allow a retainer. Player v. Hosall, (1 Russ. 538.) The question here is, will a court of equity violate its own rule, that where there are two trustees, and the debtor has notice of the trust, payment to one, without the receipt of the two, will not discharge the debt. Owen v. Dickson, (4 Ves. 97); Hull v. Frank, (11 Beav. 519.)

F. Fitzgerald, Q. C., (with Wheeler,) for one of the legatees of the obligor in support of the order of the Commissioners, relied upon Richards v. Moloney. Payment by debtor to one of two trustees is in equity no discharge, only in cases where the debtor had notice of the trust. Here payment is made by a presumption of a court of law. The court had not and could not have notice of the trust, and therefore that essential element (notice) being wanting, equity will not interfere and overrule the strict rule of the common law. The effect of allowing this appeal will be to deprive the legatees, who are innocent parties, of their legacies, the fund being insufficient to pay the debt and legacies in full. If an actual payment were made by an executor in his own wrong, a court of equity would attach the executor's own property to make the debt good. In this case the court has no property, and therefore could not be made to pay the debt.

Browne, in reply.-Suppose the executor was not one of the trustees, and that he had paid the debt to one of the trustees without having obtained a joint receipt, he having had notice of the trust, that, at law, would have been a discharge of the debt; yet, in that case, a court of equity would disregard the rule of law, and decree payment of the debt, if necessary, out of the assets of the original debtor, even though subsequent creditors or legatees of the debtor would thereby be deprived of their debts or legacies. The hardship in the supposed case would be just as great as in the present, and yet a court of equity would not give any weight to an assignment founded on such hardship. The court having no property cannot affect the question, for in the case supposed, if the executor has no pro

*See For v. Fox, (1 Atk. 462.)