Page:The English Reports v1 1900.pdf/843

On the 12th of July 1759, the cause was heard by the Lord Chancellor of Ireland, when after a variety of objections for want of parties, taken by James Barry, but without a single objection on the appellant's part, either for want of a replication, or to the regularity of issue being joined with him, or to the reading the depositions; his Lordship decreed, that the plaintiff's Susannah and Elizabeth, and the defendants Ann Jefferys, Dame Mary Freke, Jane Broderick, and John O'Neile, and the appellant, were entitled as co-heirs of Mary Barry, to the manor, advowson, and lands of Rathcormuck, and the rest of the real estate of Redmond Barry deceased, subject to the charges and incumbrances affecting the same; and that an injunction should issue directed to the sheriff of the county of Corke, to put and quiet them and their respective husbands, or their assigns, into possession thereof; and that the title-deeds and other deeds in the hands of the usher of the court relative to the estate, should be delivered up to the co-heirs. And it was referred to the Master, to take an account of the rents received by Henrietta Barry, from the death of Redmond Barry, to the time a receiver was appointed; also an account of the personal estates of Redmond and Mary Barry; and an account of the several debts, incumbrances, and legacies due [113] to the plaintiffs and the defendants respectively, distinguishing the nature and priority thereof, and how much was due for principal, interest and costs and all persons claiming to be entitled to any other incumbrances affecting the estate, were to be at liberty to come in before the Master, to prove and ascertain their respective demands, and the Master was to take an account thereof, and of what was due thereon respectively; and all usual directions were given for taking the accounts, and the consideration of costs and farther directions were reserved, till the return of the report.

The appellant attended the Master upon the general reference under the decree, by his clerk and agent, put in several discharges, and made several admissions of the charges of the other parties; and particularly admitted the will and codicil to be read as evidence, being the very foundation of the greater parts of the charges which were of legacies, and never made the least objection to the Master's proceedings, or to any of the accounts by him taken.

On the 23d of May 1764, the Master by his report certified, that he had given public notice, and issued several summonses to all parties concerned, to attend before him, in order to proceed on the accounts referred, and that he had been accordingly attended by the clerks and agents concerned for the plaintiffs and defendants. Then he reported the account of the several mortgages and incumbrances, that Redmond Barry (who was admitted by all parties to have died on the 5th of September 1750) made his will, and thereby charged his real estate with £5000 to be received by his executors out of the issues and profits thereof, for the purposes therein mentioned; and that the several persons named in his report, claimed to be entitled by virtue of that will, to the several sums therein respectively mentioned, part of the £5000 as incumbrances affecting the estates, with interest from the testator's death. That the heirs at law had insisted, that those legacies ought not to carry interest, and were not intended by the testator to carry it; and that such intent appeared from his express direction, that they should be raised out of the issues and profits of his estates, which he submitted to the court. And if the court should be of opinion, that the legacies did not carry interest, then he reported the amount agreeable to what be had before stated; but if the court should be of opinion that they did, then he reported them with interest accordingly, amounting to upwards of £9000, and that the same were the next charge on the estate, after the mortgages and bond debts. He next certified, that Mary Barry having survived Redmond, became seised of the estate, subject to the above incumbrances and legacies; that she duly made her will, and bequeathed several legacies, which she expressly charged as incumbrances on her real estate and that the respondent Richard Townsend, in right of the respondent Susannah his wife, was entitled under her will, to the principal sum of £1500 (part of the £2000 therein mentioned) bequeath-[114]-ed to her by Mary Barry, and to interest thereof from her death, amounting together to £2710, and that the respondents Sedgeley and his wife were entitled to a legacy of £500, amounting with interest to £901 6s. and that the several other persons therein named were entitled to the remainder of the said £2000 legacies; the whole legacies, principal and interest, to the 25th of March 1764, amounting together to