testator, as such next of kin; on the ground that the claim to a moiety thereof, as widow, was barred by the settlement of the 23d of July 1793. Thomas Gurly the younger died in April 1816, having by his will appointed Walter Bagnal Gurly, his eldest son, his executor and residuary legatee. Mrs. Jemima Pleasants died in 1821, and Joseph Pasley took out letters of administration to her and to William Pleasants, who had died at an earlier period. Several bills had been filed, by the par.ies at various times, for accounts, and to have the trusts of the will of Thomas Gurly the elder declared and carried into execution. A receiver was appointed in 1805, and a decree for an account had been made in 1808. Walter Bagnal Gurly having come to represent two-seventh shares in thefreeholds devised by Thomas Gurly the elder to be sold, and being also his heir at law, and likewise the heir at law of Thomas Gurly the younger, and administrator with the will annexed of James Gurly, insisted that the interest which the testator, Thomas Gurly the elder, had in the lands of Knockroe, during the continuance of the freehold lease, was not disposed of by his will, and that T. Gurly the younger was entitled, as his heir at law, to the profit rents of the said lands until the expiration of that lease in 1821, by the death of the last life on which it depended. And he also insisted that Jemima, the wife of Bagnal Gurly, became entitled on the death of her husband to one moiety of his personal property under the Statute of Distributions, and was not deprived of her right thereto by the settlement executed on her marriage. The Respondents, on the other hand, contended that the testator's interest in the lands of Knockroe, during 1842. GURLY v. GURLY. 1842. GURLY υ. GURLY. the subsistence of the freehold lease, was disposed of by his will, being included in the general devise of his freehold property; and also that Jemima Gurly was by her settlement deprived of any right to any part of the personal estate of her husband, and that the sum of 8007. accordingly constituted part of the personal estate of Thomas Gurly the elder, subject only to her life interest therein. The questions then raised were referred to arbitration, but no award was made. The Respondents, on the 13th of April 1837, filed their bill of revivor and supplement in the Court of Chancery in Ireland, against the Appellant as heir at law of Thomas Gurly the elder and T. Gurly the younger, and as personal representative of James Gurly, in order to bring these questions before the Court. The bill, after stating all the above circumstances, set out a case laid before Mr. Saurin, in the year 1805, on which he declared his opinion to be that the freehold interest passed with the other freeholds to the seven devisees, of whom Thomas Gurly the younger was one, and that he was entitled to such one-seventh, and no more, under said will. Answers were put in by the Appellant and Joseph Pasley, in November 1837 and 1838; and witnesses were then examined, and publication passed. On the 13th of February 1840, the Lord Chancellor of Ireland pronounced a decree (a) in the cause, whereby the decree of 1808 was confirmed: And it was further declared that, according to the true construction of the will of the testator, Thomas Gurly the elder, the freehold interest whereof he was seised at the time of his decease, in the lands of Knockroe, and the rents and profits thereof during (a) See 2 Drury & Walsh, 463. the continuance of the freehold interest, and all other his freehold estates and interests in the counties of Carlow and Wexford, became and were distributable between and amongst the seven devisees in the will for that purpose named, viz. Thomas Gurly the younger, James Gurly, Frances, Margaret, Edith, Esther, and Elizabeth Gurly; and that, according to the true construction of the settlement of the 23d of February 1793, executed on the intermarriage of Bagnal Gurly with Jemima Bernard, she was thereby barred of any distributive share of the personal estate and effects of her husband under the Statute of Distributions; and that the sum of 8007. in the said settlement mentioned, constituted part of his personal estate; and that on the decease of Bagnal Gurly, his father Thomas Gurly the elder became entitled thereto, as his sole next of kin, and that the same constituted a portion of the personal estate of Thomas Gurly the elder, subject to the rights of Jemima to the interest thereof during her life. And it was further declared that the personal estate of Thomas Gurly the elder, including the sum of 8007., and the chattel interest in the lands of Knockroe in the county of Carlow, on the expiration of the freehold lease under which Thomas Gurly the elder held the said lands at the time of his death, became divisible among the five devisees in his will named, viz. Frances, Edith, Esther, Margaret, and Sarah Gurly, otherwise Sarah Box; and that the rents, &c. arising out of the lands of Knockroe, after the determination of the freehold interest, become distributable between and amongst the five last-named devisees or legatees, or the persons entitled thereto in their rights respectively. And it was further declared that such portion of the real and personal estate of Thomas Gurly 1842. GURLY v. GURLY. 1842. GURLY V. GURLY, the elder, as Thomas Gurly the younger should be found entitled to under the will of Thomas Gurly the elder, was and is applicable to, and should be applied, in the first instance, to make good such sum or sums of money, if any, as Thomas Gurly the younger might be found to have been indebted to the estate of Thomas Gurly the elder. And it was referred to the Master to take an account of the several sums of which the several legatees or devisees named in the will of Thomas Gurly the elder, or the person or persons entitled in right of the said parties, or any of them, received out of the assets of Thomas Gurly the elder, severally and respectively; and also an account of the real and personal assets of Thomas Gurly the elder: And it was further ordered that the Master, having regard to the declaration thereinbefore contained touching the construction of the will of Thomas Gurly the elder, should report the rights of the several devisees and legatees named in the will, and all parties entitled to or interested in such real and personal estate, in right of such legatees and devisees respectively. And in proceeding under said decree, it was further ordered that the Master should also report the rights of the several parties to the sums standing to the credit of this cause; and that in case the share of the property of Thomas Gurly the elder which Thomas Gurly the younger should be found to have been entitled to under his father's will, should not be sufficient for the payment of the sums he, Thomas Gurly the younger, should be found to have been indebted to the assets of Thomas Gurly the elder, and if the defendant Walter Bagnal Gurly should refuse to admit assets of Thomas Gurly the younger, sufficient to pay such sums as should be found due by him on the accounts aforesaid, then it was ordered that the Master should take an account of the real and personal estate of Thomas Gurly the younger, and of all debts, &c. affecting the same; and if Robert Cornwall should be found, at the time of his decease, to have been indebted to the personal estate of Thomas Gurly the elder, then to take an account of his personal estate and an account of his debts, &c. and to report whether any part of his estate was forthcoming and available to make good such sum as he should be so found indebted. And further directions were reserved. Joseph Pasley acquiesced in the decree, but Walter Bagnal Gurly appealed from it, so far as it declared the rights of the parties in relation to the rents and profits of said lands of Knockroe during the continuance of the lease; and also so far as it declared that, by the settlement of February 1793, Jemima Gurly, otherwise Pleasants, was barred of any rights which she would otherwise have to the personal estate of her deceased husband, Bagnal Gurly. Mr. Pemberton and Mr. Girdlestone, for the Appellant:-The judgment of the Court below is erroneous in having passed over, as if of no effect whatever, the exception in the will of Thomas Gurly; that exception must be construed as referring to the freehold interest actually existing, and held by the testator under Beauchamp Bagnal. The testator here had first a freehold interest in the lands of Knockroe, under the deed of May 1768; and next he had a leasehold interest in those lands, under the lease of 1784. Having these two interests, he made a will in which he uses these expressions: "I order all my freehold interests in the counties of Carlow and Wexford, except my interest in Knockroe, which I hold under 1842. GURLY บ. GURLY. |