1855.

Privy Council.

In re WYSE.

Judgment.

high authority of the Judges who decided Cox v. Doleman and Young v. Lord Waterpark. We regret that the parties have been put to the expense of appealing in this case. The order of the Commissioners must be reversed, and the account taken from the death of Thomas Wyse.

1855. April 3, 4.

A was a trustee

of B's will, by which real es

tate was devised to the

separate use of

And in the Matter of

The Estate of ALICIA SMITH and others, Owners;

Ex parte ALICIA SMITH, Petitioner. *

(Judicial Committee of the Privy Council.)†

THE petition of appeal in this case was presented by William Caldbeck, Esq., and stated the following facts :

John Pearson, late of Granby-row, in the city of Dublin,

C for life, and through whom the title of the owners was derived, to the

after her death

to her children property sold in these matters, was a practising solicitor. In

as she should

appoint; and the year 1826, an order was made by the Court of Chancery for the appointment of a receiver, in a cause then pending therein,

was also a
simple contract
creditor of B
for a sum paid by reason of B's default in a receiver matter. After B's death, C,
who was B's executrix, and A and his co-trustee, joined in mortgaging the real
estate so devised, and personal property, to a trustee for A, to secure his debt;
and C and the co-trustee covenanted that the property was free from incumbrances,
except certain specified judgments. By a cotemporaneous deed, C appointed to her
children, and among others to D and E, who had obtained judgments prior to the
mortgage against B. D and E were parties to the deed of appointment, and by it
ratified and confirmed the mortgage, and all the covenants, &c., therein contained,
as if they had been parties to and had executed the same. Held, that A's mort-
gage, though subsequent in date, should have priority over the judgments of D
and E.

Reported by E. S. TREVOR, Esq.

Before the LORD CHANCELLOR; the Right Hon. Baron GREENE; the Right Hon. Judge KEATINGE, and the Right Hon. FRANCIS BLACKBURNE.

of Piers v. Piers; and John Pearson, being the plaintiff's solicitor in said cause, requested his nephew, Richard Caldbeck, Esq. (since deceased), the petitioner's brother, to become the nominal receiver, at the same time stating that he the said John Pearson would himself perform all the duties of the office, and hold the said Richard Caldbeck indemnified from all responsibility in respect thereof. Richard Caldbeck, having consented thereto, was approved of and appointed receiver, upon his entering into security by recognizance, conditioned to account as in such cases usual. The petitioner and Joseph Smith (the husband of Margaret Smith, who was the sister and principal devisee of the said John Pearson) shortly afterwards entered into such security by recognizance, with the said Richard Caldbeck, in the sum of £3926.

Richard Caldbeck, from the time of his appointment, never interfered in the receipt of the rents of the estates over which he was so appointed receiver, nor in any manner whatsoever acted in the receivership. It was exclusively managed and conducted by John Pearson; Richard Caldbeck, who was wholly ignorant of such matters, supposing that (as John Pearson was a professional man, and his uncle) the matter was perfectly safe in his hands, and that there was no risk or hazard to him consequent upon his neglecting to perform in person the duties of the said office of receiver.

John Pearson, being absolutely entitled to the property sold in these matters, by his will, dated the 24th of January 1828, devised to John Bonner Pearson certain premises in Bride-street (being part of the premises sold in the first matter), for his life, with remainder to his lawful issue, as he should by deed or will appoint; and to the petitioner his fee-simple estate in Ross-lane and Derbysquare (part of the estate sold in the second matter), and his estate in Granby-row, in trust for his sister Margaret Smith for her life, to her separate use, with power to her to dispose thereof by deed or will amongst her children in such shares and proportions as she should think fit; and he thereby also bequeathed certain premises in Bow-lane (being part of the premises sold in the second matter) and Clonburrowes, in trust for said Margaret Smith, to her separate 39

VOL. 4.

1855.

Privy Council.
In re

KING.

Statement.

1855.

Privy Council.

In re KING.

Statement.

use, with power to dispose thereof in any manner she might think proper; and, after several other bequests, the testator bequeathed to the petitioner his interest in certain houses in the city of Cork, in trust for said Margaret Smith, to her separate use, with a similar power of disposing thereof as she should think proper; and he bequeathed the residue of any property he might die possessed of or entitled to, unto the petitioner, in trust for the said Margaret Smith, with the same power of disposing thereof as she should think proper.

By a codicil to his will, the testator revoked the limitation in said will, of the premises in Bride-street, to the issue of said John Bonner Pearson, and thereby devised same to said John Bonner Pearson, his heirs and assigns for ever. And he thereby, in addition to the property devised in trust for said Margaret Smith, by his said will, bequeathed the house and premises No. 11 Bride-street (sold in the second matter), to the petitioner, in trust for said Margaret Smith, and her assigns for ever, with power to dispose thereof as she should think proper, to be free from the control of her husband; and by a second codicil the testator charged the premises in Bride-street, which he had bequeathed to the said John Bonner Pearson, with a sum of £1100, and interest at £5 per

cent.

The testator appointed his said sister Margaret Smith sole executrix, and died on the 28th of November 1835.

In the early part of the year 1836, shortly after the death of the testator, Richard Caldbeck was for the first time required to pass an account as receiver in the said cause. Upon the passing of the account, a balance of £4772. 11s. was found to be due by him as receiver, on foot of the rents received and misapplied by the testator; and Richard Caldbeck was ordered to invest said sum, within a short period; but being unable to do so, it was arranged and agreed upon between his sureties (the petitioner and the said Joseph Smith, the husband of said Margaret Smith), that the petitioner should raise the said sum on his own security (his cosurety the said Joseph Smith being unable to pay his moiety or proportion thereof), and that thereupon the petitioner should be

secured the entire of the said sum, by the indenture of mortgage next hereinafter stated.

The petitioner having accordingly procured and invested the said sum of £4772. 11s. to the credit of said cause of Piers v. Piers, by indenture of mortgage, bearing date the 14th day of June 1836, made between said Joseph Smith and said Margaret Smith his wife, of the first part; the petitioner of the second part; John Pearson Smith (son of said Joseph and Margaret Smith), of the third part; and said Richard Caldbeck, of the fourth part; reciting, amongst other matters, the several leases under which the said estates of the said testator were held, and reciting the said will of said testator, and reciting the title of said Joseph Smith to certain premises at Crumlin, in the county of Dublin; and that said Margaret his wife was entitled to a jointure of £300 per annum, charged thereon, in case she should survive her said husband; and reciting the several matters herein before stated as to the appointment of said Richard Caldbeck as receiver; and reciting also that the balance upon the account of £4772. 11s., together with a sum of about £900, rents received by said testator since the 1st of May 1834, still remained due by said receiver; and that said sums (although they appeared to be due by said receiver, and for which said Joseph Smith and the petitioner were sureties) were the proper debts of said testator, and ought to be paid out of the property and assets left by said testator; and reciting that the said Margaret Smith, as such executrix and devisee, was minded and desirous to raise or secure said two sums, so due by said Richard Caldbeck as such receiver, and otherwise to save him harmless therefrom, and had proposed to convey and assign the several lands, estates, properties, assets and effects, therein before and after mentioned, and all benefit or advantage, property or interest, which she could or might have or claim under the will of said testator, to the said Richard Caldbeck for that purpose, and had requested petitioner, as such trustee, to join in such conveyance or assignment; the said Joseph Smith, Margaret Smith and the petitioner, at the request of said Margaret Smith, according to their respective estates and interests, granted, released and conveyed unto the said Richard Caldbeck (amongst other premises) certain premises in Werburgh-street, and also said.

1855.

Privy Council.

In re

KING.

Statement

1855. Privy Council.

In re KING.

Statement.

houses and premises in Bride-street and Ross-lane, in the city of Dublin (being the premises sold in the second matter), and also a house and premises in Granby-row, in the city of Dublin, and also certain lands and premises near Clondalkin, in the county of Dublin, and also certain premises in Bow-lane, in the city of Dublin (also sold in the second matter), and also said lands of Crumlin, and the said jointure of £300 charged thereon; to hold said respective premises unto the said Richard Caldbeck, his heirs, executors, administrators and assigns, for the respective terms granted by the leases thereof respectively, and therein mentioned; and also the said sum of £1100 charged by the will of the said testator on the lands and premises therein mentioned, unto the said Richard Caldbeck, his executors, administrators and assigns, subject to redemption on payment to said Richard Caldbeck of said sums of £4772. 11s., and £900, with interest thereon at £5 per cent. And said indenture further witnessed that, for the considerations therein mentioned, the parties thereto of the first and third parts assigned unto the said Richard Caldbeck certain sums of money in a schedule to said now reciting indenture of mortgage particularly mentioned, and stated to have been due to said testator in his lifetime, for costs as attorney and solicitor in several causes and suits theretofore prosecuted or defended by him; and also a certain sum of £2076. 11s. 10d., stated to have been due to said testator on foot of a decree in a cause therein mentioned; to hold the same unto the said Richard Caldbeck, his executors, administrators and assigns, as his and their proper goods and chattels, subject, nevertheless, to redemption. And the said parties of the first and third parts thereby covenanted with said Richard Caldbeck, to call in said sums of money with all convenient speed, and to account for and pay over the same when realised, to the said Richard Caldbeck; and the said Joseph Smith and Margaret his wife, and the said Joseph Smith, for his said wife, did thereby also covenant with the said Richard Calbeck, to pay the said sums of £4772. 11s. and £900, with interest as aforesaid, at the time therein appointed for payment thereof, and that they had good right to convey, and that they had not incumbered said premises. "And further, that all and singular