1875 March 17 Case 2806 Menary-JACKSON Cover page: Appearances are to be entered at the Office of the Clerk of the Records and Writs, Four Courts, Dublin. [SEAL:] Chancery Record & Writ Office March 17, 1875 JOSEPH DICKIE [1] , Solicitor, 31 Frederick-street, Dublin KING, Printer, 36 Ormond-quay, and 1 Charles-street, West, Dublin 50-17-3-75

 

Record No. 2806
Bill filed the 17 day of March, 1875

In Chancery,

Between MARY MENARY [2] , AN INFANT BY MARY MENARY [3] , WIDOW, HER NEXT FRIEND, Plaintiff,

AND

WILLIAM ROBERT FERRIS [4] , DAVID JACKSON [5] , SAMUEL MENARY [6] AND ANDREW COULTER BRADFORD JACKSON [7] …. Defendants.

 

BILL OF COMPLAINT .

TO THE RIGHT HONOURABLE JOHN THOMAS BALL, LORD HIGH CHANCELLOR OF IRELAND.
HUMBLY COMPLAINING showeth unto his Lordship MARY MENARY, an Infant, by MARY MENARY, of Cavanore (sic), in the County of Louth, Widow, her next friend, the above named Plaintiff, as follows:-

1.      By an indenture dated the 25^th day of April, 1857, and made between Anne Lyne of the one part, and William Menary, herein after called William Menary the elder, of the other part, the said Anne Lynne granted the lands of Maghery [8] Kilcrany, consisting of 44a. 2r. 5p Irish plantation measure, and situate in the County of Armagh, to the said William Menary the elder, To Hold to the use of the said William Menary, the elder, his heirs and assigns, at the yearly rent of £30 9s. 2d., above taxes.

2.      The said William Menary the elder, by his last will and testament, bearing the date the 13^th day of May 1867, devised the said lands to his son, William Menary, hereinafter called William Menary, the younger, the father of the Plaintiff, subject, with other property real and personal thereby devised and bequeathed, to the payment of certain legacies therein mentioned.

3.      The said William Menary, the elder, afterwards died on or about the 19^th day of May, 1867, without having altered or revoked his said will, leaving the said William Menary, the younger, him surviving, who thereupon became seized of the said lands, and entered into possession thereof. The said William Menary, the younger, was also the said testator’s heir at law.

4.      Previous to the 5^th day of July 1871, the date of the settlement hereinafter mentioned, a marriage between the said William Menary, the younger and Mary Jackson was agreed upon, and upon the treaty for the said marriage it was for the considerations in the said settlement mentioned agreed by and between the said William Menary, the younger, the said Mary Jackson and David Jackson, the father of the said Mary Jackson, that the said lands of Maghery Kilcrany should be put into settlement, and provision thereby made for the said Mary Jackson  in case the said intended marriage should take place, and for the issue of the said intended marriage, if any, according to the usual course of settlement in such cases, and that the said William Menary, the younger, should give instructions to his solicitor to draw up such a settlement.

5.      In pursuance of the said agreement the said William Menary, the younger, went to the office of William A. Simpson, solicitor in Armagh, and gave him such instructions as aforesaid, and directed hi to prepare a settlement whereby in case the said marriage should take place a life estate in the said lands should be reserved to the said William Menary, the younger, and after his death the said lands should be charged with a jointure of £30 a year in favour of the said Mary Jackson in case she should survive him, and subject thereto, should go to such one or more of the issue of the said marriage in such shares as he the said William Menary, the younger, should appoint. And in default of such appointment to the sons and daughters of the said marriage, according to the usual limitations in such cases. And in default of children to the said William Menary the younger, his heirs or assigns, absolutely.

6.      In accordance with the said instructions, and with the concurrence of the said William Menary, the younger, the said William A. Simpson instructed his clerk to draft a marriage settlement, which after reserving a life estate in the said lands to the said William Menary the younger, and charging a jointure on the said lands of £30 a year for the said Mary Jackson in case she should survive him, should contain the following limitations, that is to say, that the said lands should go to such one or more of the issue of said marriage as the said William Menary the younger should appoint, and in default of appointment then to the first and other sons of the marriage successively in tail, and if there should be no sons, then to the daughters of the said marriage absolutely, and if no children, then to the said William Menary the younger, his heirs and assigns absolutely.

7.      Having given such instructions to his said clerk as aforesaid, the said William Simpson was obliged to leave for the Quarter Sessions Court in Armagh, to attend to cases there in which he was engaged, and after he had left his office the said clerk, to whom he had given the above instructions, proceeded to draft the said settlement, but stopped before he came to the operative part thereof, and then permitted another clerk in the same office to finish the said draft. The draft so finished was then brought to the said William A. Simpson for approval while he was actually engaged in Court and he being pressed for time could not read it all over, but assuming from what he had read that is was made in accordance with the usual limitations, directed his clerk to engross the deed as drafted, and thereupon it was engrossed and executed.

8.      The said deed of settlement so engrossed as aforesaid bears date the 5^th day of July, 1871, and is expressed to be made between the said William Menary, the younger, of the first part, the said Mary Jackson of the second part, the said David Jackson, one of the above named defendants, of the third part, and Samuel Menary and Andrew Coulter Bradford Jackson, two of the above-named Defendants, of the fourth part, and both the said deed and the said draft thereof contain the several limitations as aforesaid, save the clause providing that in default of appointment and of issue male, the said lands should go to the daughters of the said marriage absolutely, the said clause was omitted by mistake, and in consequence of the hurried manner in which said deed was prepared, engrossed, and executed, and the non-provision for the daughters of the said marriage, in the events aforesaid is not conformable with the instructions given by them, but quite contrary to the said intention and instructions.

9.      The said intended marriage was shortly afterwards duly had and solemnized, and there was issue of the said marriage one child only, the Plaintiff, who is an infant under the age of 21 years.

10.  The said William Menary, the younger, died on or about the 7^th day of February, intestate, leaving the said Mary Menary, formerly Mary Jackson, his widow, and the said Mary Menary, the Plaintiff, his only child, him surviving, and without having ever exercised the power of appointment vested in him under the said settlement of the 5^th day of July, 1871.

11.  The said mistake or omission in the said settlement was not discovered until after the death of the said William Menary, the younger.

12.  On the 23^rd day of April 1874, letters of administration of the personal estate and effects of the said William Menary, the younger, were duly granted to William Robert Ferris, one of the above-named defendants, as a creditor of the said William Menary, the younger, and the said William Robert Ferris is now the legal personal representative of the said intestate.

13.  On the 13^th day of June 1874, a bill for the administration of the real and personal estate of the said William Menary, the younger, including the said Lands of Maghery Kilcrany was filed in this Honourable Court by the said William Robert Ferris against the said Mary Menary, the Plaintiff herein, and another in which the said William Robert Ferris charged and submitted that the said William Menary, the younger, having died without ever having exercised the power of appointment vested in him by the said settlement, and there having been no male issue of the said marriage, the Plaintiff herein took no estate in the said Lands of Maghery Kilcrany of the said William Menary, the younger, might be sold, and a receiver appointed to receive the rents and profits of the said real estate until such sale.

14.  On the 23^rd day of January, 1875, the Right Honorable the Master of the Rolls, before whom the said administration suit then was and still is pending, made the usual decree for the administration of the said real and personal estate of the said William Menary, the younger, and so far as it bears upon the said Lands of Maghery Kilcrany the said decree is in the following terms: - “Mary Menary, widow, the guardian ad litem, of the minor Defendant, Mary Menary, the heiress-at-law and only child of William Menary, the younger, by her counsel in open court, stating that she intends, on behalf of said minor, to file a Bill to reform the indenture of settlement executed on the marriage of William Menary, the younger, with Mary Jackson, dated the 5^th day of July, 1871, in the Bill mentioned. The Court doth not, at present, decide whether the said lands of Maghery Kilcrany in the Bill mentioned, formed portion of the assets of the said William Menary, the younger, or not, and it is ordered that the said guardian of the said minor Defendant do make William Robert Ferris, the Plaintiff in this suit, who is both creditor and personal representative of the said William Menary, the younger, a party Defendant to the Bill so to be filed by her on behalf of the minor as aforesaid. And it is ordered that the Plaintiff, William Robert Ferris, be at liberty to defend such suit, if so advised. And it is ordered that the said guardian ad litem of the said minor do cause the said Bill to be filed on behalf of the said minor within one month from the date hereof, and in default thereof it is ordered that the Plaintiff William Robert Ferris be at liberty to apply to this Court in relation thereto as he may be advised.” And by a further order made in the said cause dated the 24^th day of February, 1875, it was ordered by the Right Honorable the Master of the Rolls that the time limited by the said decree for the said guardian ad liem of the said minor Defendant to file a Bill as mentioned in said decree should be extended for three weeks from the date of said order.

15.  There are no specific charges on the said Lands of Maghery Kilcrany created by the said William Menary, the younger, and the creditors of the said William Menary, the younger, are only simple contract creditors, to whom the debts were incurred without any reference to any alleged interest of the said William Menary, the younger, in the said Lands of Maghery Kilcrany.

16.  The Plaintiff shows that there is in the limitations contained in the engrossment of the said settlement of the 5^th day of July 1871 internal evidence of the mistake which was fallen into by the clerks who had confided to them the preparation of the same, and that an inspection of the original draft establishes the truth of the statements so, as aforesaid, made by the said William A. Simpson, and Plaintiff further charges that not only the parties to the said deed, but the said William A. Simpson, at the time said settlement was executed, were all under the same impression and belief that provision was thereby made for all the issue, male and female, of the said marriage, and that it was only in default of all such issue, the estate was to return back to said testator, William Menary, and Plaintiff submits that same ought now to be rectified according to the true agreement of the parties thereto and that there ought to be inserted therein a clause to the effect following – viz., in default of appointment by the said William Menary, the younger and in default of male issue of the said marriage the said lands therin contained and agreed to be settled, should go to the daughters of the said marriage, and the Plaintiff further submits that as the daughter and the only child of the said marriage, she is entitled pursuant to the real agreement made previous to the said marriage to the said lands of Maghery Kilcrany by purchase and not by descent.

 

 

PRAYER.

The Plaintiff therefore prays as follows:-

1. That it may be declared that the said settlement of the 5^th day of July, 1871, was not framed according to the agreement of the parties thereto, but that same as now appearing was accidently (sic) and through mistake incorrectly framed in the particulars hereinbefore mentioned, and that the same should be rectified accordingly, and that a clause providing that in default of appointment by the said William Menary, and in default of issue-male of the said marriage, the lands of Maghery Kilcrany, shall devolve upon the daughter or daughters of the said marriage her or their heir or heirs as tenants in common in fee shall be inserted in the said settlement immediatelly (sic) before the clause limiting the estate in case there shall be no children children (sic) of the said intended marriage to the right heirs of the said William Menary, the younger.
2. That the Plaintiff may have such further or other relief as the nature of the case may require.

 

THOMAS W. BELL

FREDERICK W. WALSH

 

The Defendants to this Bill are:-

WILLIAM ROBERT FERRIS

DAVID JACKSON

SAMUEL MENARY AND

ANDREW COULTER BRADFORD JACKSON

 

NOTE: This Bill is filed by JOSEPH DICKIE of No 31 South Frederick-street, Dublin, Solicitor for the above-names Plaintiff.