Page:The English Reports v1 1900.pdf/841

Redmond Barry made his will, dated the 17th of November 1748, whereby, after a particular disposition of his personal estate, he charged his real estate with £5000 to be raised by his executors, out of the yearly rents and profits, for the payment of the legacies therein mentioned; and died on the 5th of September 1750, without issue, leaving the said Mary Barry his sister of the whole blood, to whom the manor and lands of Rathcormuck descended as his heir at law, (there being no disposition thereof made by his will,) subject to the incumbrances and legacies.

Mary Barry, unapprized of her right under her brother's recovery and intestacy to the real estate, made her will, dated the 11th of September 1750, upon the foundation only of her charge thereon, by her father James Barry the elder's will, in 1716; and as both her brothers were dead without issue, she disposed of the £2000 contingent legacy given her upon that event, in different proportions, £1500 to the respondent Mrs. Townsend, £100 to the respondent Mrs. Dunscombe, and the remainder amongst other relations; and with regard to the interest of £8 per cent, upon her original legacy of £700 until marriage, (whereof she had never received any,) and her power of charging the estate with £200, part of the principal, upon her dying unmarried, she, after some other legacies, gave all the residue of her fortune, due to her by her father's will, to the respondents Mrs. Townsend and Mrs. Sedgeley: but being in a few days afterwards informed of her right to the whole of her brother's estate, subject to the incumbrances, she immediately entered upon the land by her attorney, to whom she executed a power of attorney for that [110] purpose; and on the 24th of the same September, she made a codicil to her will, whereby, after taking notice of the will, and that part of her personal estate was a charge on the real estate, whereof her brother Redmond died seised, and that she was ignorant of her title to that estate at the time of making her will, she thereby confirmed her will, and if her personal estate should be insufficient, she directed her legacies to be paid out of her real estate; and after giving legacies to her relations, particularly £3000 to the respondent Mrs. Townsend, and £300 to the respondent Mrs. Sedgely, to be raised out of her real estate, over and above the former legacies given them, she devised all her real estate to Arthur Hyde, and his heirs, for the purpose of raising by sale or mortgage, money sufficient for payment of her legacies, and appointed Richard Barry, Richard Townsend, and the respondent Mrs. Townsend, executors of her will. The testatrix died soon afterwards, and upon her death, the estate subject to the incumbrances and legacies descended as to one third to the respondents Mrs. Townsend and Mrs. Sedgeley, one other third to Ann Jefferys, Dame Mary Freke, Jane Broderick, and John O'Neile, and the remaining third to the appellant, as co-heirs of her brothers Redmond and James and herself.

No sooner had Mary Barry taken possession of her brother's estate, than Henrietta Barry, as mother and guardian of James Barry an infant, took, on his behalf, forcible possession of the mansion-house, and part of the lands of Rathcormuck, in right of her son, as descended from Redmond Barry of Ballyclogh, the son of old Redmond Barry by the second venter, and entitled under a supposed settlement in 1666, as heir male of the family; and Mary Barry dying before she regained the possession, the respondents Townsend and Sedgeley, and the other co-heirs, immediately upon her death made a legal entry, and reclaimed the possession; but Henrietta Barry continuing in receipt of the rents and profits, and the respondents and other co-heirs being unable to maintain an ejectment, as the legal estate stood out in the mortgagees; they therefore, on the 23d of February 1750, filed their bill in the Cout of Chancery in Ireland, against the said Henrietta Barry and James Barry her son, and several other persons, praying an account of the rents and profits of the estate in question against Henrietta and James Barry, from the time of their taking possession, that the rents already received might be brought into court, and they restrained from receiving any farther rents; and the bill farther prayed a sale of the estate, and that the purchase-money might be first applied in payment of the mortgages and other debts; next of the legacies given by Redmond and Mary Barry, and after payment thereof, that the residue of the purchase-money, and lands remaining unsold, might be divided amongst the heirs at law of Mary Barry, and the possession of the whole decreed them till sale; and that the witnesses to the several wills and codicils might be examined, and their testimony perpetuated.

[111] Previous to the filing this bill, and very soon after the death of Redmond