Case on behalf of Mrs Barbara Donaldson of Dublin [1]

Copy Will of A C Bradford Esq^{r [2]}

(NOTE: The Will is dated March 26,  1847)

In the name of God, Amen. I Andrew Coulter Bradford of Cavananore in the County of Louth Esquire do hereby make and declare my last Will and Testament  I give and demise to my Friends J.B. Gillmer [3] of Mayfield [4] in the County of Down Thomas McCullogh [5] of Dunramond [6] in the County of Monaghan and W^m Charleton [7] in the County of Louth Esqrs their Heirs and assigns as trustees for the uses and purposes hereinafter mentioned all and every my Freehold Estates and Properties wheresoever situated including my one divided moiety of the lands of Auchavackey [8] otherwise called Rochdale [9] in the County of Louth and my one divided Moiety of the Town and lands of Cavananore [10] and Drisgooley [11] in the County of Louth and my one undivided Moiety of the lands of Tullyvallen [12] in the County Armagh that is to say in trust that the said Trustees and the Survivors and Survivor of them and their Heirs and assigns shall, and may, set, let, and demise, the same and every part thereof to Solvent Tenant or Tenants other than my three nephews William Oliver [13] David Jackson [14] and Andrew Oliver [15] at the best rents which can be had for and out of the same for any terms or times not exceeding twenty one years and shall and may otherwise manage the same and every part thereof so as by improvement to make same most productive in annual rents and that they may and shall receive the annual rents and profits thereof and thereout and therewith in the first place keep down and pay all and every head rent renewal fine and other Charges and payment now subsisting or what may hereafter be payable out of the same and every part thereof or which may be necessary to keep up and preserve the perpetual estates and interest therein and all necessary and proper Costs and charges which may arise or be incurred in defending keeping up preserving and supporting the said Estates and Interests therein and the title thereof and therein and afterwards to pay out of Said annual Rents the yearly sum of Fifty pounds Sterling by two equal half yearly payments on every first day of May and first day of November in every year The first of such payments to be made on the Gale day [16] which shall happen twelve months after my decease to my sister Barbara Donaldson of the City of Dublin for the term of and during her natural life and from and after the death of the said Barbara in trust to pay same to my nieces her daughter Eliza Donaldson [17] and Mary Jane Oliver [18] share and share alike for and during their natural lives and from and after the death of the survivor of them to pay said annual sum of Fifty Pounds Stg. to and among all and every such of the issue of the said Eliza Donaldson and Mary Jane Oliver respectively as shall survive the said Eliza Donaldson and Mary Jane Oliver and the issue of such of the Child or children of the said Eliza Donaldson and Mary Jane Oliver as shall die in the lifetime of the said Eliza Donaldson and M. J. Oliver and their heirs and assigns share and share alike the issue of any such Child as shall die in the lifetime of the said Eliza Donaldson and M. J. Oliver to take among them if more than one child of such Child so dying in the lifetime of said Eliza Donaldson and Mary Jane Oliver no more than the share which their Father or Mother if so Surviving said Eliza Donaldson or M. J. Oliver would have been entitled to if He or She had survived and only in the event and in case as such issue of said Child so dying surviving the said Eliza Donaldson & Mary Jane Oliver without leaving any such issue or child or children of any such issue which shall be living at the time of her death the In Trust to pay over said annuity of Fifty Pounds in like manner to Thomas Oliver [19] of Killinure [20] in the County of Armagh for and during the term of his natural life and after his death to and among his lawful issue and their heirs share and share alike in like manner as aforesaid In respect of the issue of the said Eliza Donaldson and M. J. Oliver and in case of the Said Thomas Oliver dying without such Child or issue living at the time of his death then from and after his death to pay said sum of Fifty pounds Stg. in like manner to W^m Oliver [21] brother of said Thos. Oliver for and during his natural life and after his death to and among his lawful issue and their heirs share and share alike in like manner as aforesaid in respect of the said issue of the said Eliza Donaldson and Mary Jane Oliver and in the case of the said William Oliver dying without leaving lawful issue living at the time of his death then from and after the time of his death to pay said fifty pounds yearly to the daughters of my niece Sally McCullogh [22] and their Heirs and assigns for ever And on further trust out of said rent and profits to pay the annual sum of Thirty Pounds by two equal payments on the said days and times and as aforesaid with respect to said first annuity of Fifty Pounds to Eliza Jackson [23] otherwise Oliver eldest daughter of my sister Eliza Oliver [24] for the sole and separate use and on the sole and separate receipt of the said Eliza Jackson without her husband joining therein or being liable to his debts or engagements and as if she were sole and unmarried and from and after the death of the said Eliza Jackson in trust to pay said annuity of Thirty Pounds as aforesaid to all and every daughter of the said Eliza Jackson in equal shares and to their Heirs and assigns for ever And on further trust out of said rents and profits to pay the annual sum of Twenty Pounds [The following italicized section was omitted in the initial copying of the will] by two equal portions on the same day and time as aforesaid with respect to the said first mentioned annuity of Fifty Pounds to Anne Oliver wife of Andrew Oliver of Brooklie [?] for the sole and separate use and on the sale and separate receipt of the said Anne without her husband joining therein or being liable to his debts or engagements and as if she were sole and unmarried and from and after her death or in case she shall survive her said Husband and shall marry a second time then from and after such her second marriage, in Trust to pay said annual sum of Twenty pounds as aforesaid to and among the daughters of the said Anne Oliver [25] share and share alike and their respective Heirs and assigns for ever and in further trust thereout to pay the further annual sum of Fifty pounds to my sister Margaret Bradford for and during the term of her natural life by two equal half yearly payments at the same days and times and as aforesaid is provided with respect to the first sum of fifty pounds and after the death of my said sister Margaret In trust to pay same annuity of fifty pounds to my nieces Eliza Donaldson and Mary Jane Oliver in such shares and proportions as the said Margaret Bradford shall by her last will and testament direct and appoint and in default of such direction and appointment to and among the said Eliza Donaldson and Mary Jane Oliver share and share alike during their joint lives and from and after the death of either of them to pay the same to the survivor of said Eliza Donaldson and Mary Jane Oliver and from and after the death of such survivor In trust to pay said annuity of fifty pounds to my Nephew Andrew Coulter Bradford Jackson [26] his heirs and assigns for ever and on further trust to pay the annual sum of thirty pounds by equal and half yearly payments and on the same days and times and as aforesaid is provided with respect to the said first sum of fifty pounds to my niece Mary Jane Oliver for and during her natural life and from and after the death of my said niece Mary Jane Oliver In trust to pay the said annuity of thirty pounds to the lawful issue of the said Mary Jane Oliver share and share alike and their Heirs and assigns for ever And in default of such issue in trust to pay said annuity from and after the death of the said Mary Jane Oliver to my niece Eliza Jackson Oliver [27] during her natural life and from and after the death in trust to pay said annuity of Thirty pounds to all and every the daughters of the said Eliza Jackson Oliver in equal shares to their respective Heirs and assigns for ever. I give and devise to my faithful servant Cormack Rooney [28] the house he now occupies and the apartments lately occupied by Michael Quin [29] together with the gardens belonging to and enjoyed with said two houses so long as he shall choose to occupy without alienating parting with or letting same and no longer during his natural life and I also give to the said Cormack Rooney an annuity of four pounds yearly – I give to Thomas McKeown [30] one of my labourers the sum of Two pounds yearly – And to my friend Jas Tipping [31] the sum of four pounds yearly – I make no mention of my house linen as same belongs to and is the property of my sister Margaret Bradford [32] . I give and bequeath to the said W^m Charleton and J. B. Gillmer for the use of my niece Sally McCullogh [33] wife of said Thomas McCullogh [34] the interest payable from time to time after my death on the Sum of One Thousand One Hundred pounds due to me by her said Husband said interest to be payable to her on her sole receipt without her said Husband joining therein and for her sole and separate use and without being liable to her said Husbands debts & after her death to her daughters I give and bequeath to Thomas Bradford [35] of Drumrule [36] in the Co Monaghan & now of Philadelphia the sum of Two Hundred pounds – I give and bequeath to Isabella Mills Gillmer [37] the sum of One Hundred pounds – I direct all my farming stock furniture and moveables except my house linen to be sold by my executors and applied in payment of my just debts funeral and Testamentary expenses and of my said several money legacies I direct authorize and empower my said Trustees – I give devise and bequeath all and every the rest residue and remainder of my estates real free and personal whatsoever not hereinbefore disposed of to Margaret Bradford and Mary Jane Oliver absolutely share and share alike In witness whereof I have hereunto signed my name and affixed my seal this twenty sixth day of March One Thousand Eight Hundred and Forty Seven

            A. C. Bradford

Signed Sealed the        }            "J. S. Tweedy" [38]
in presence of               }            "George McGuigan" [39]

Mr. Bradford died on the 10^th May 1847 & probate was duly taken to his will by Mr. McCullagh & Mr Gillmer Mr. Charteton the third Trustee having refused to act^a

[Pencilled marginal notation:] a  They have all acted

Since taking probate^b Mr McCullagh has also refused to act & the entire management is now in the hands of Mr Gillmer.

[Pencilled marginal notation:] b  Mr McCullagh is still willing act and Mr Charleton will act as trustee

            Mr. Bradford held the lands of Cavanore & Anahavackey in his own hands up till the time of his death his sister Margaret Bradford and his niece Mary Jane Oliver residing with him & keeping his house as he has never been married

            Cavanore & Anahavackey contain jointly about 100 acres & was considered quite a model farm so admirably had it been managed by Mr. Bradford & it was provided with a very fine residence & every article of the best & most improved description necessary for its management

            Mr. Gillmer being sole^c (acting) Executor & Trustee conceived it best to keep up the stock &c and carry on the management of the lands that Mr. Bradford died in occupation of until he could get them let to advantage & he therefore kept up the stock and did not dispose of the farming utensils or furniture &c as directed by the will but permitted Miss Bradford and Miss Oliver to reside on the property as before the death of Mr Bradford & in fact continued to manage it chiefly through their instrumentality as his residence is about 30 miles distant from the lands in question

[Pencilled marginal notation:] c  Mr Gilmer prevented Mr McCullagh from having anything to say to money matters he [acted] every of his [way]

            Notwithstanding that the chattels were left unsold Mr Gillmer has paid the pecuniary legacy of £200 to Thomas Bradford & it is also more than probable he has paid the other pecuniary legacy of £100 to Miss Isabella Mills Gillmer (his daughter) although querist [40] has no certain knowledge of te fact as no statement of accounts has been exhibited to her by Mr. Gillmer

            Several offers have been made Mr. Gillmer by respectable and solvent parties to take the lands on lease Mr. Rogers of Dundalk having offered £2 [p^r] acre for it and another Gentleman equally solvent having offered £200 [p^r] annum rent being about the same rent per acre. Both these offers have been refused & the land is still in the hands & under the management of Mr. Gillmer assisted as before stated by Miss Bradford and Miss Oliver who reside on and are supported out of the produce of the lands

            The house and lands have been maintained in the same good condition they were in at the death of Mr. Bradford but there is not by any means the profits out of the lands of Cavanore & Dungooley sufficient (when added to the rents of the other denomination) to pay the several annuities so that Querist has received only £33.17.1 as the full share coming to her for two years annuity instead of her full annuity of £100

            The stock & crop &c on the lands at the time of Mr. Bradfords death were estimated at the lowest worth £500^d but from bad management it is not probable that the full value was realized and the stock now on the lands is by no means equal in quantity or quality to what it was then

[Penciled marginal notation:] d  £1500

            Having regard to the provisions of Mr. Bradfords will and the foregoing statement Counsel will please advise

            1^st  On what day did the first gale of the annuities become due and payable?

[Marginal notation:] I think the annuities devised to Querist, Eliza Oliver, Anne Oliver, Marg^t Bradford, & Mary Jane Oliver became payable on 1^st November 1848

Those to Cormac Rooney, Tho^s McKeown & James Tipping on the 1^st Nov^r 1847.

            2^nd Was Mr. Gillmer justified in paying the pecunary legacies or either of them before the sale of the stock & furniture &c out of the proceeds of which such legacies were to be paid?

[Marginal notation:] He was bound first to pay debts & funeral expenses: then legacies: then to hand the surplus to the residuary legatee. If he had sufficient personal property to pay debts and legacies he was not bound to wait until the stock should be sold.

            3^rd Supposing the sale of the stock furniture &c to be insufficient to pay Testators debts funeral and testamentary expenses & pecuniary legacies should the pecuniary legatees be paid the full amount of their legacies or how otherwise and supposing the proceeds of such sale to be more than sufficient for such purposes & that the proceeds of the land should be insufficient to pay the annuitants should such surplus go to make up the deficiencies to the annuitants or to the residuary legatees or have the residuary legatees any claims (as such) while the annuitants are not paid in full?

[Marginal notation:] The annuities are chargeable on the real estate. If this be insufficient to pay them in full, they must abate rateably in proportion to the annuity the respective sums so chargeable. They are not chargeable on the personality – but solely on the real estate

            4^th While the proceeds are insufficient to pay the annuitants in full ought all to bear a proportion of the loss or should they be paid in the priority mentioned in the will or is there any distinction to be made between them?

[Marginal notation:] They abate rateably as I have stated.

There is no question as to priority.

            5^th What length of time is Mr. Gillmer justified in keeping Cavanore & Anahavackey unset & what responsibility does he incur in refusing to accept a rent of £200 [p^r] annum for same if the profits arising out of same under the present management be less than would be procured by such letting?

[Marginal notation:] This is a matter of discretion [hath] to be controlled by a Court of Equity.

A notice should be served on the trustees calling upon them to let the premises to the highest bidder, and that in the event of a refusal, so to do - & also in the event of not tendering a satisfactory account of past management, applying then that a Bill would be filed against them in a court of Equity

It would seem to be a breach of trust to allow the Testators nieces to enjoy the property intended to pay the Annuities.

            6^th Is the interest annually due by Mr. Tho^s McCullagh on foot of his debt of £1100 to be forgiven in full by Mr Gillmer on his producing Mrs McCullagh's receipt for same while the other annuitants are not paid in full or is Mr McCullagh liable to pay a portion of such interest in such case & how much?

[Marginal notation:] Querist is in no way concerned in this: which is altogether a matter between Mrs McCullagh and the Trustees.

            7^th What responsibility does Mr McCullagh incur by refusing to act as Co Executor & Trustee with Mr Gillmer after having joined in taking out probate to Mr Bradfords will?

[Marginal notation:] He should be served with a notice as directed, & then he may be made responsible.

            8^th How often should Mr Gillmer furnish a statement of accounts to the Querist & should such accounts embrace the expenditure in carrying on the farming operations & the profits of same & should the household expenditure at Cavanore be included in same or of what nature should such accounts be?

[Marginal notation:] Querist is merely interested in having her Annuity paid Beyond that she is but as a stranger. So far as may be reasonably necessary to have the property managed in order to secure the punctual payment of the Annuity, Querist has a right to [interfere], but not further.

Joseph Napier [41]

16^th Jan^y 1850

            As Querist is not actuated by any hostile feelings towards Mr Gillmer she will feel obliged by Counsel advising generally on the will for Mr Gillmers guidance should the answers to the foregoing queries seem insufficient to explain same with sufficient clearness!