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Decisions of the Superior Courts of New South Wales, 1788-1899

In re Riley [1832] NSWSupC 30

succession - trusts, permission to sell land - trusts, enforcement by beneficiaries - trusts, beneficiary overseas - Woolloomooloo

Supreme Court of New South Wales

Dowling J., 9 April 1832

Source: Sydney Herald, 16 April, 1832


Court of Chancery.

MONDAY. - Before Judge Dowling.  In the estate of Edward Riley, Esq. Deceased.  Dr. Wardell prayed a decree of the Court on the bill and answer which had been filed by the trustees of that estate, for permission to dispose of the real property of the testator, and rest the proceeds in public securities according to his wish.  The learned Doctor, in arguing the case, observed, that the property belonging to the estate was of considerable value, but of such a nature that the whole of the proceedings arising from it were swallowed up in repairing dilapidations, and the family of the testator, seven in number, were left destitute.  Two of the seven were of age - the eldest son, Mr. Edw. Riley, was of age, and in England; consequently, out of the jurisdiction of the Court, the youngest child was only 5 years old, the legatees would therefore have to remain 16 years, until a partition of the property could take place, which was of so peculiar a nature, that litigation would follow on litigation, and dissatisfaction on dissatisfaction.  There was no opposition to the decree prayed for, and all parties consented.  Were the estates disposed of, and the proceeds invested, there would be a very handsome competence secured to the legatees.

Mr. Wentworth, on the part of Mr. George Riley, who was of age, and the infants, as far as they could legally join, assented to the prayer of the bill.

Judge Dowling wished to know if Mr. Edw. Riley joined in the bill and answer.

Mr. Charles Moore stated that he held a full power of attorney from Mr. Riley, but in a case of such importance he should not feel authorised in consenting on his behalf.

Judge Dowling remarked, that no one would purchase without he was a consenting party, as they would be liable to actions of ejectment. - The decree will be given at a future day.


Forbes C.J., Stephen and Dowling JJ, 18 November 1832

Source: Dowling, Proceedings of the Supreme Court, Vol. 78, Archives Office of New South Wales, 2/3261


[p. 139] In EquityComplainants

Wm Walker}


Edward Riley George}

Riley, Sophia Riley,}

Alexander Riley, James}Defts

Riley, Charles Riley,}

& Francis Riley}

This was a Bill filed by the Executors & trustees of the will of the late Edward Riley Esq deceased praying a decree of this court to enable them to execute the trusts of the will of [p. 140] the deceased testator.  The defts Edward & George Riley, are the sons of the testator by his first wife, & were both of age at the time of filing the bill.  The other defts are the infant children of the same testator by a second wife, & have put in an answer to the bill by their guardian Thomas Walker Esquire.  The deft Edward is stated by the bill to be in parts beyond seas out of the jurisdiction of this court & has filed no answer but he is made a party to the suit.  The deft George who resides within the Colony, has put in an answer to the bill in person.

This cause came on for hearing on Monday the 9th April 1832.

The Bill sets forth in substance that testator by his will and codicil devised to his executors, all the estate & property of what [p. 141] nature & wheresoever situate which might belong to him at the time of his decease, upon trust to pay & assign the same unto Ann Riley his then wife, Edward Riley & George Riley his sons by a former marriage & all & every such children of his by his sdwife Ann Riley as should be living at his decease or born within due time after his decease, share & share alike in equal proportions to & for their, his and her absolute use with benefit of survivorship, but in case of his surviving his wife, & his two sons Edward & George, & there should be no children of his by his wife, or there should be such children, but they should die before 21 or before marriage, then he give his estate & property to his Exors upon other trusts.  The bill then goes into charge that the testator died seized & possessed of several large freehold estates in this colony which are enumerated, such as farms & lands, & buildings &houses in Sydney, a windmill, & a mansion [p. 142] house at Woolloomoolloo.  It then goes on to charge that at the time of testators decease, he left his wife Ann Riley, & Edward Riley & George Riley sons by a former marriage, and SophiaAlexanderJamesCharles, & Frances Riley, the issue of his marriage with Ann Riley him surviving, all of which issue were minors under the age of 21 at the time of his decease, & that the five children last named are still survivors.  It then charges that Ann Riley the wife died in May 1830 - that the complainants duly proved testators will & codicil - that they have taken upon them the Exn[1 ] thereof, & are desirous of carrying the trusts of the same into full execution.  But they go on to charge ``that by reason of the situation state & condition & various peculiarities of the freehold properties enumerated they are unable without selling [p. 143] the same to make a suitable & equal distribution of the estate effects, of testator - inasmuch as they are incapable of partition & division into parts & proportions, so that the property which would have belonged to the late wido. may be set out, & that the said issue may take rateably & have & possess an equal quantity in extent & value of the said freehold properties, & take share & share alike agreeably to the testators intention.  It then charges that Edward & George Riley having came of age, they at one time insist that they ought to be put in possn[2 ] of what they consider their respective proportions & shares of the property, & that the same should be set out with proper metes & bounds, & at another time they  admit the impossibility of doing so for the reasons alleged by the Complainants, but contend that compts[3 ] have power, & ought to put up the property for sale [p. 144] by public auction if not by private contract, & out of the proceeds to distribute to them their shares, & appropriate the residue to the other children (being minors) in such a manner as may best conduce to their interests.  The complainants then allege that it wd be of great advantage to Ed. Riley & George Riley, but more particularly to the children still minors, to sell the estates at an early period & invest the proceeds thereof in some good & eligible securities for the use & benefit of the sd. minors - ``for that the sd estates one & all, have ever since testator's death, from unavoidable circes, been almost wholly unproductive, whereas were they sold, & the monies arising therefrom converted into use, by being invested in good securities, a very [p. 145] handsome income would be derived.  It then charges that by reason of the present state of the property, all the parties interested therein have been subjected to great privation, inconvenience & hardship - & the property itself is subject to waste & injury.  It then states that Edward Riley is in fact, beyond seas.  In consn[4 ] whereof & inasmuch as complainants are unable to carry the trusts of the testors will into exn[5 ] without the  direction of a court of Equity - they pray that the Defts may be directed answer etc. why the estates shnot be sold, and praying that sd estates may be directed to be sold under the direction of the Court in such manner as it shall seem meet for the better & more effectual performance of the trusts of the testors will, & that all proper [p. 146] parties may be decreed to join in such sale, & that proper directions may be given touching the proceeds of the sales & such of the said proceeds as may & will be held in trust for the infants - & all necessary directions given for fully carrying the sdtestors intentions into exn.[6 ]

To this bill George Riley has filed his answer in which he admits all that is charged in this bill.

The infants have also by their guardian answered & they assent to the prayer of the bill as far as they can.

According to the authority of Inwood v Twyne Ambler 419 S.C. 2 Eden 183[7 ] it is quite clear that a Court of Equity has authority to make a decree for carrying the prayer [p. 147] of this bill into effect, all proper parties being before the court.  The only doubt I had upon the case, was how this court could make a decree which might affect a party not before the court, & not within its jurisdiction.  Edward Riley the heir at law, but who is also one of the devisees under the will is not before the Court, & therefore I reserved the case for conference & consideration with the other judges.

I have had the benefit of their learning & ability in considering the case, and they agree with me in thinking that there is nothing to prevent the court in granting the prayer of the bill, subject to any objection which the heir at law may hereafter set up to the validity of the will of his father.  It is laid down by Lord Redesdale in his treatise on the pleadings [p. 148] in suits in the Court of Chancery p. 139-140 - a work certainly of high authority - that to a bill to carry into exn[8 ] the trusts of a will disposing of real estate by sale or charge of the estate, the heir at law is deemed a necessary party, that the title may be quieted agt his demand; for which purpose the bill usually prays that the will may be established agt him by the decree of the Court.  In this case we apprehend that such a prayer would not be necessary where the bill has been duly proved, & where the heir at law himself is one of the devisees under the will.  In the same work it is said ``If the heir at law of a testator who has devised a real estate on trusts, shd be out of the jurisdiction of the court, & that fact should [p. 148] be charged & proved; the court will proceed to direct the execution of the trusts, upon full proof of the due exen[9 ] of the will & sanity of the testator; though that evidence cannot be read against the heir if he should afterwards dispute the will, & the Court therefore cannot establish the will agt. him, or in any manner ensure the title under it against his claims.

We therefore see no reason why we should not direct the execution of the trusts of this will, subject to any right which the heir at law may hereafter set up to dispute the will.  On this condition, it may be referred to the master, in order that a decree may be drawn up conformably to the prayer of the bill.



[1 ] Execution.

[2 ] Possession.

[3 ] Complainants.

[4 ] Consideration.

[5 ] Execution.

[6 ] Execution.

[7 ] Marginal note in manuscript: ``See 1 Ves. Sen. 460. 1 Ves. Jr. 462."

[8 ] Execution.

[9 ] Execution.

Published by the Division of Law, Macquarie University