Page:The English Reports v1 1900.pdf/1269

tion secured for it, by the election which the decree had proposed to the appellant, the son of Gerard. John did nothing to defeat the will, but soon after attaining his age, and a little before his death, he covenanted to confirm it, as against the acts of himself, and those claiming under him. On the death of John without issue, Gerard elected to enjoy Pelletstown, and mortgaged it; his assets were therefore liable to make a satisfaction for the profits of Ballynunry during his time, and the decree directed an account both of his assets, and of those profits. But this election could not bind the appellant his son, because by the will Gerard was only tenant for life of Ballynunry, and his son was owner of the inheritance. It would fall therefore on the son to [177] make the election when he came of age, as being entitled to the fee-simple of Pelletstown, subject to his father's mortgage, which was secured by fine and recovery, and as tenant in tail of Ballynunry: if he should elect to take by Christian Bor's will, then a moiety of Pelletstown must be conveyed to the respondent; if not, then a satisfaction must be made out of Ballynunry, not only for a moiety of Pelletstown, but for a moiety of his father Gerard's third of the £2000 in case the whole or any part of it should come to his hands. And the reason why the decree had laid both these charges on Ballynunry was, because the fund which the testator had power to devise, must be the security to compensate for the loss of every thing which he had no power to devise, so far as the devisees of that fund did any thing to defeat the will. That the respondent by reason of several abatements, and the neglect of his agent, laboured under some disadvantage in not having been able to bring his own cause to hearing, at the same time with the cause originally instituted by Gerard, and revived by Mary; and therefore, though he insisted on the same right by his answer in that cause as by his own bill, it was impossible that any notice could be taken of it, or relief given upon it at that time; Mary the administratrix of Gerard, being clearly entitled to a decree against the trustees in the settlement of 1717, to recover her husband's share of the £2000 provided by way of charge for the younger children of Christian, and likewise to recover his distributive share of such proportion of that sum, as might belong to his deceased brother William. But the whole merits having at length been brought before the Court between all the proper parties, the respondent hoped and insisted, that the decree appealed from was just, and ought to be affirmed.

But after hearing counsel on this appeal, it was declared, that the testator Christian Bor, having by an express proviso in his will directed what new provision should be made for his younger sons Jacob and William, in case he had not power to devise the lands of Pelletstown, and the houses in Michael's-lane, School-house lane, and Bor-court, and consequently that devise should be defeated; no implied condition arose upon the said will to oblige the appellant to make his election, whether he would abide by the said devise, or convey to the respondent Jacob so much of the lands of Ballynunry and Kilcoole, as should be equal in value to the moiety of the lands and houses first mentioned: but that the appellant's father Gerard Bor, having enjoyed the lands of Ballynunry and Kilcoole during his life, did thereby elect to abide by the devise of the said lands of Ballynunry and Kilcoole; and therefore ought to have permitted the respondent Jacob Bor to have the benefit of one moiety of the said Gerard's third of the £2000 mentioned in the said proviso, and the interest thereof according to the true meaning of the said proviso, unless the said respondent Jacob had received or should receive a compensation for the moiety of Pelletstown and the houses before mentioned, according to the limitations in the said Christian Bor's will out of the assets personal [178] or real of John Bor, by virtue of the said John Bor's covenant in the deed of the 27th of March 1740, for confirming his father's will as to the devise of Pelletstown and the houses before mentioned: and it was therefore ordered and adjudged, that the decree complained of should be reversed, and that the respondent Jacob Bor's bill should be dismissed without costs; but without prejudice to his applying to the Court of Chancery in Ireland, to rehear the former cause wherein the decree of the 4th of August 1747, was made, or to review the said decree, according to the course of that Court; and also without prejudice to his bringing any now bill for relief in the premises, consistent with this judgment, as he should be advised.^[1] (Jour vol. 28. p. 450.)