mortgaged the estate, it was sold under a decree of the court of Exchequer, and purchased in trust for Elizabeth Bushell, the mother of the plaintiffs, who continued in possession (the plaintiffs residing with her) till the year 1796, when a receiver was appointed in a cause instituted in this court by Alicia, the widow of Edward Bushell, against Elizabeth and her children. Under these circumstances, the six younger children of Edward and Elizabeth Bushell filed their bill, in April 1798, (about which time they had all attained the age of twentyone) against Elizabeth Bushell, Jeremiah and Alicia Lilly and her infant son by Edward Bushell, and against the elder brothers and sisters, insisting that they had never acquiesced in or abided by said will of July 1778, and praying to be decreed to each one twelfth part of the lands of Ballyvaughan, and for an account of the issues and profits of such their respective shares since the death of Edward their father. The elder brothers and sisters by their answers elected to accept the portions appointed for them by the will. This case was argued by Mr. Burston, Mr. O'Grady and Mr. Sankey for the plaintiffs, and by Mr. Saurin, Mr. Fitzgerald and Mr. Plunket for the defendants. On the part of the plaintiffs it was insisted that the registry of the articles of 1755, prior to that of the settlement under which the defendants claimed, made them purchasers with full notice of those articles, the registry of a deed being notice to all the world of existence of such deed, and of its contents, so far as they are contained in the memorial; and it was stated that such had been the prevailing opinion in Ireland on the effect of the Registry Act (a). (a) 6 Ann, c. 2. 1803. BUSHELL V. BUSHELL. 1803. BUSHELL V. BUSHELL. Feb. 7. For the principal defendant, Mrs. Lilly and her son, it was insisted that the will of the 30th July 1778, was executed by Edward Bushell with full purpose and intention of executing the powers given him by the articles of 1755, and with the concurrence and advice of his wife Elizabeth, and that her subsequent ratification was in execution and performance of the power vested in her: that therefore the will and indorsement were to be taken as a good and valid execution of the power by Edward and Elizabeth, and that the registering said will and indorsement in the proper office for the registry of deeds (instead of proving the will as such) was the result of a conviction on the minds of the persons interested for the plaintiffs, that they did amount to a good execution of the power: that all the family had acquiesced under this appointment for twenty years, and that she and her son were purchasers for valuable consideration and without notice of the articles of 1755; the mere fact of registry not amounting to notice, according to some MSS. cases in this court, which were mentioned. (a) This latter point having become the principal question in the case, was a good deal discussed at the bar, and in order to consider it fully, the Lord CHANCELLOR ordered the cause to stand over until this day. Lord CHANCELLOR. This bill was filed by six of the children of Edward Bushell by Elizabeth Duckett: the question arises on the settlement made on the marriage of Elizabeth and Edward, and the subsequent transactions in the family. (His Lordship stated the settlement). By this deed the parties attempted to convey to trustees for these uses, but the legal in (a) The reporters have endeavoured in vain to procure notes of these cases. CASES IN CHANCERY. terest did not pass; a question arises (which was not discussed) upon the limitation to the use of the issue "from “and after the death of John and his wife, Edward and "Elizabeth;" but I do not think the limitation was to await and the death of these in order to take effect; but the true con- BUSHELL. Limitation in an article on marriage, to 4. for life, subject to annuities for the lives of B. and C. and a charge for a jointure for D. if she should survive A. and after the death of said B. and C. the issue, &c. The limitation not to await the deaths of A. and D. then to to the issue is A, B. C. and D. The whole of this instrument is incorrect; it seems to have been considered only as notes for a future settlement: the children were intended to take, not by appointment merely, but also in default of appointment, though no such provision is inserted. I imagine the thing looked to was, that a further deed was to be executed, and if a bill had been filed in this court for the purpose of executing that but they are settlement, I should conceive it ought to be, to Edward fort life, and subject to the limitations to Edward and Elizabeth, then to the children in such shares as husband and wife should appoint, and in default of appointment, to the children as tenants in common. This is the construction which the parties have put upon the settlement in argument at the bar, and I think it is the true construction. The consequence would be that subject to the power of appointment in the husband and wife, the children would be tenants in com mon. Six of these children are the plaintiffs; the others are not in a condition to claim, having elected to take under their father's will against the settlement. John the father and his wife are long since dead; Edward the son enjoyed the estate till August 1778, when he died; but he made a will which it is contended operated as an appointment under to take upon 1803. BUSHELL υ. BUSHELL. Power of appointment in such shares and proportions as husband and wife should by any deed in writing direct, not well executed by appointment by the will of the husband with this power, because Elizabeth his wife after his death, made an endorsement on it, expressive of her approbation of the disposition thereby made, and her confirmation of it. This will does not import any intention to execute the power, but disposes of the property as if it had been his own, though at the same time he adverts to his wife's having a charge of 301. per ann. under the instrument which has been mentioned. However, this being a will, revocable by him at any time, even if the wife had at the moment subscribed a ratification of it, I cannot conceive it to be a deed of appointment under the power, because it would be as a deed reserving a power of revocation to one of the two parties; it would be in the power of the husband, but not in the power of the wife to revoke it, and therefore it cannot be considered as a joint-appointment under the power, but simply as the will of the husband until after his death, and then to take effect: the confirmation was by a distinct instrument after the death of Edward. I think therefore that this cannot operate as a joint-appointment under the power(a), and the rights of the parties therefore are wholly ble by the hus- independent of this will, except so far as any of them have band during abided by it. a written endorsement thereon made by the wife after his death expressing her approbation. Nor would it have been bet ter if the wife had ratified it at the time of the execution, it being revoca.. his life. Edward, the father of the plaintiffs, dying in 1778, near twenty years before the bill in this cause was filed; after his death Edward Bushell his eldest son entered, and in 1781, married Alicia Keating, who is now the wife of Jeremiah Lilly and a defendant in the cause: on that marriage a settlement was made, dated 25th February, 1781, of this very estate, considering Edward as taking an absolute interest under the will of his father. One would conceive that the parties were very ill advised on that occasion, or that there was a great deal of inattention-whether they searched the (a) M. Adams v. Logan, 3 Bro. C. C. 310. was referred to by the Lord CHANCELLOR during the argument. 1 registry, or if they did, whether they acted on good advice with respect to the construction of the instrument of 1755, may well be questioned; however, so far as that settlement goes, Mrs. Lilly and her children are purchasers for valuable consideration, and they insist that no notice was had by her or her friends at the time of the execution of the settlement upon her, of the charges introduced into the settlement of 1765. It is not alleged that she had not notice of the will of Edward; on the contrary, that is admitted, and it might be contended that that alone conveyed notice of the settlement, for the will does mention the settlement. But it is contended that the registry itself is notice; and on that ground principally I wished the case to stand over, that I might consider the subject fully, and make more particular inquiry into what has been represented as the prevailing opinion here on this subject. I think there was a mistake, in point of language at least, when this has been considered as notice. The effect is nearly the same, but in many instances it is not: If it were to be considered as notice, the consequence that would follow, would be mischievous: it must then be taken as notice to all intents and purposes; and this would be contrary, not only to the decisions in England on the registry which exists there, but to decisions on the West-India registry, and to those respecting judgments, bargains and sales enrolled, and other instruments, which although on record are yet not held to be actual notice; though the party must endure the consequences of them. I have looked into all the cases that I have been able to find, both English and Irish; of Irish cases I have found only one; and it goes not on the question of notice pro VOL. I 1803. BUSHELL υ. BUSHELL. |