previously relied upon in his behalf.. To show that the first deed of appointment was valid, they cited Chadwick v. Doleman (a); and they objected to separate Counsel being heard at all on behalf of the wife of Mr. Bowler, she not being sui juris.

The LORD CHANCELLOR.

I am not sorry that this matter has been re-discussed, it being extremely important that there should be a right understanding of this Act, which, upon the first consideration of it, I thought was of a more comprehensive character than the contemporaneous legislation upon the same subject in England. Where two Acts of Parliament are passed within a few days of each other conversant about a similar procedure, but with considerable difference in expression and enactment existing between them, I concluded that the Legislature intended that they should be different in operation; and on consideration, the Irish Act, I thought, did not require that every special case presented under the 11th section of that Act should be presented in the names of, or with the concurrence of, all the parties interested in it. The words are :-"That it shall be lawful for any person (the direction of the Master in the case of persons under disability as hereinafter mentioned being first obtained) to present a petition to the Court of Chancery in Ireland, stating any document, facts or circumstances relating to any matter falling within the jurisdiction of the Court, by way of special case, and praying the opinion of the Court upon such special case; and it shall be lawful for the Court to give judgment upon such petition accordingly, and such judgment shall bind all such persons as the Court shall direct, and in default of such direction, then shall bind all such persons as presented the same." This section appeared to me to import a power of binding some persons besides those who present the petition; and it occurred to me that the concluding paragraph in the section, that "where the opinion of the Court is desired in any matter in which any infant, idiot, lunatic or married woman is interested, it shall be lawful for the Master of the Court in rotation to direct the presenting of such petition by way of special case on behalf of the infant, idiot, (a) 2 Vern. 527.

1851. Chancery.

In re O'REILLY.

Argument.

Judgment.

1851.

Chancery.

In re

Judgment.

lunatic, or married woman, and such direction of the Master shall be conclusive to all intents and purposes," does not imply that in O'REILLY. every case in which persons under disability are interested the concurrence of the Master is necessary previously to the presentation of a petition by other parties interested who are not under disability. Perhaps the section is not as clear as it might be, and it may in this respect require further consideration or amendment; but I think it is at all events so expressed as to warrant me in saying that the general enactment contained in it would be paralysed if it were to be held that all persons interested in the subject of the petition should concur in presenting it, and that the sanction of the Master is essential in every case in which persons under incapacity are concerned. That appears to me to be too narrow a construction.

Accordingly I thought that the petition should be entertained by the Court as one falling within the 11th section of the statute; but before entering upon its merits I required that notice should be served upon all parties interested.

That notice having been served, the question now arises whether the state of facts warrants a declaration of the opinion of the Court as prayed by the petition? Before entering into, and in reference to, that question, I may in the first instance observe that whatever may be the true construction of the 11th section in reference to the preceding observations, the jurisdiction created by it is one which ought to be exercised with the utmost possible caution; that the Court should insist upon having before it all the materials essential to the formation of a correct opinion upon each case; and further, that all the facts must be contained within the four corners of the petition, because it is upon the petition itself that the Court is to decide.

What would be the proper course of proceeding in the event of there being a controversy respecting disputed facts, in a case otherwise safe to be dealt with under this section, I am not now going to say; but where such a dispute exists, and the petition is silent as to the facts which are disclosed upon affidavits in answer, which facts appear to be material, and the Court is not satisfied that it is dealing with the real truth of the case, or has the means of ascertaining it, with all the disposition which I feel to give a large and

liberal construction to this statute in all its parts, I should hesitate to make any declaration of rights in such a case. I should adopt a dangerous course if I were to decide upon facts not contained within or alluded to by the petition.

With regard to the present case, I think it one in which it would be perilous for the Court now to intermeddle. It is notorious that many questions may arise upon a single exercise of a power. Here there are questions upon conflicting executions of the same power, and I have been called upon to declare that the first deed of appointment is invalid, and that the second one is valid. It is alleged in the petition that the first deed is invalid, because it passed over one of the objects of the power and gave away the entire fund; and that being invalid, the donee was at liberty to re-exercise the power, and that he, having so re-exercised it, leaving unappointed a nominal fund for future children, I am bound to declare that execution valid.

By the first deed, viz., that of 1834, Frances O'Reilly appointed the whole fund to her two younger sons (the petitioners Joshua and Eyre O'Reilly), and her daughter Maria O'Reilly, afterwards Mrs. Bowler, in equal shares, and then she proceeded to make a provision for the disappointed object of the power, her eldest son Henry O'Reilly, by agreeing to convey to trustees certain real estates upon trust after her death, and that of her husband, for Henry O'Reilly for life, with remainder to his first and every other son in tail male, remainder over. Henry O'Reilly died in his non-age; so far therefore as he was concerned he cannot be supposed to have elected to take under that deed or the reverse, or in any way to have acted under it. But that may not be so with other parties. It said that the donee of the power has put an end to all questions of election, because she has re-exercised the power. Am I then to declare this new execution of the power valid? Upon the case as made by the petition, it would perhaps be difficult to say that this second execution is not valid. But when the circumstances under which this second deed was executed, the nature of it, and the affidavits made by Mr. Bowler, are considered, would it be safe for me to say that it was a valid exercise of the power of appointment so as to bind all the parties before me? I confess that I shrink from making a pre

1851. Chancery. In re

O'REILLY.

Judgment.

1851. Chancery.

In re O'REILLY. Judgment.

cedent so dangerous. If I hesitate about affirming this second deed, I must hesitate about disaffirming the first, because if the second turn out to be void or fraudulent, the result might be to re-establish the first. I do not however say that such will be the case.

What answer might be given to the allegation of Mr. Bowler that the second appointment is fraudulent, I do not know. The case wears at least a suspicious aspect in that respect. I cannot treat the case as at present ripe for adjudication. It is mere prospective litigation until the Court is called upon to distribute the fund. The most prudent course for me to adopt is to dismiss the petition, without prejudice to such other or further proceedings as the parties may be advised to take. The section is a novel one, and the Court gave some encouragement to the petitioners in the first instance; the dismissal therefore must be without costs.

1851. Chancery.

In the Matter of SARAH CAMPBELL, Widow; and of ANNE CAMPBELL, WILLIAM CAMPBELL and MICHAEL CAMPBELL, Infants, by the said SARAH CAMPBELL their next friend,

MARY ANNE CAMPBELL,

. Petitioners ;

Respondent.*

June 24.

seised of

lands for lives

THE petition in this cause was presented under the 11th section of A testator the Chancery Regulation Act (13 & 14 Vic. c. 89), and prayed that houses and the Court might declare its opinion and judgment on the several renewable for ever, and of matters in the petition submitted to it, and that such judgment and no other real opinion might be declared binding on the respondent Mary Anne to trustees Campbell and various other persons therein named, and on the petitioners; or that the Court would make such other or further suages, lands,

orders in the premises as to it should seem meet.

estate, devised

all his freehold mes

tenements and hereditaments whatsoever

The petition stated that Samuel Campbell was at the time of his and whereso

ever upon certain trusts,

viz., to permit and suffer his daughter during her life to receive an annuity of £100 to be issuing and payable out of all and every other his freehold estate or estates situate (here the houses and lands above named were mentioned) to her separate use (and without power to alien or mortgage it), and after her decease the annuity was to stand to the heirs of her body lawfully issuing, in such shares as she should by will appoint, and in default of appointment then to her said children share and share alike.

And the testator directed that £50 per annum should be applied in the maintenance of his daughter until she attained twenty-one or married, and that upon either of those events the trustees were to assign the annuity of £100, and all interest and dividends due thereon, and all securities wherein the same should be placed out or invested, to her for her own sole use and benefit absolutely for ever, with the usual powers of distress and entry upon the devised premises, and every or any part thereof. After a bequest of certain plate and household furniture to his daughter, and of a small annuity to another person, the will contained this clause:-"and in further trust that in case my said daughter shall happen to die before she attain twenty-one and unmarried, I give, devise and bequeath said annuity of £100, and all and every other my freehold estates wheresoever as aforesaid unto my brother E. C., for and during the term of his natural life, and from and immediately after his decease unto and to the use of his right heirs for ever, in such manner as by his last will he should direct, limit and appoint," and the testator bequeathed all his personal estate subject to his debts, to E. C. The testator's daughter survived him and attained twenty-one. Upon a petition presented under the 11th section of the Court of Chancery Regulation Act on behalf of the children and devisees of E. C., who died almost immediately after his brother the testator, the Court was of opinion that upon the context of the will, the words of contingency "in case my daughter shall happen to die before she attain twenty-one or marriage," must be confined to the annuity of £100, and that accordingly E. C. and his children took estates to the exclusion of the testator's daughter in the freehold property of the testator immediately upon his death; but the case was sent for the opinion of a Court of Law.

*Ex relatione ALFRED M'FARLAND, Esq.