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

Riley v. Riley [1841] NSWSupC 64

succession

Supreme Court of New South Wales
Dowling C.J., June 1841
Source: Sydney Herald, 21 June 1841

GEORGE RILEY AND THOMAS BURDEKIN V. RILEY
AND OTHERS.

This was a bill for a partition and an account of the estate of Edward Riley the elder, deceased, which was originally filed by the plaintiffs, George Riley, the devisee of the said Edward Riley, and Thomas Burdekin, the morgagee of the devisee, against the executors and the children, and the executors of the children of the said Edward Riley. It appeared that Edward Riley, the elder, being possessed of some personal property, made his will in India, disposing of that property; and having afterwards acquired considerable real property in this country, he duly made three codicils to his will, by which he left this property to his seven children, share and share alike. George Riley, the second son of the testator, mortgaged his share of his father's property to Burdekin, who subsequently purchased Riley's equity of redemption, and was in fact the sole plaintiff in the suit. Edward Riley, the eldest son of the testator, relieved his right, as heir-at-law, and claimed under his father's will; he is now deceased, and his executors were before the Court.
Having given in evidence the necessary proofs to establish his case, and the defendant having submitted to the judgment of the Court, the plaintiff prayed the decree of the Court according to the prayer of his bill.
The CHIEF JUSTICE said that he would take time to consider before he pronounced his decree.
Mr. FOSTER, Mr. WINDEYER and Mr. DONNELLY, appeared for the plaintiffs; The SOLICITOR-GENERAL for the children of the testator, who are of age; Mr. HUSTLER for the children who are minors; Mr. BROADHURST for the executors of the original testator; Mr. CALLAGHAN for the executors of Edward Riley, the younger.

Dowling C.J., 25 June 1841
Source: Sydney Herald, 28 June 1841

SUPREME COURT. - EQUITY SIDE.

FRIDAY. - BEFORE SIR JAMES DOWLING, CHIEF-JUSTICE.

THOMAS BURDEKIN AND ANOTHER V. CAMPBELL AND OTHERS.

In this case His HONOR delivered the following judgment:-
This was a bill for partition of divers freehold estates amongst the devisees, under the will of the late Edward Riley the elder, Esq. In October, 1815, the testator, then a merchant, being about to proceed to New Holland, made his will at Calcutta, attested by three witnesses, and gave and bequeathed to his executors, thereby nominated, "all the estate and property of whatever nature and wheresoever situate, which might belong to him at the time of his decease," upon trust, to pay and assign the same unto his then wife Ann Riley, Edward and George Riley, his sons by a former marriage; and all and every of the children by his then wife as should be living at his decease, or born within due time after his decease, share and share alike, in equal proportions, to and for their, his and her absolute use, with benefit of survivorship. At the date of this will the testator was not possessed of any real estate. Subsequently thereto, and prior to the 7th February, 1824, he had acquired valuable landed estates in this Colony, and by codicil of that date he recognised his will, and appointed other executors. This codicil was also attested by three witnesses. The testator died on the 21st February, 1825, seised of the estates so acquired, and without altering his will and codicil. His sons, Edward and George Riley; his second wife and five children, issue by her, namely, Anna Sophia, Alexander William, James John, Charles, and Frances Elizabeth (the three latter of whom are still infants under 21), survived him. In 1829 Edward Riley, the eldest son, and heir at law, brought ejectment against the executors and trustees, to recover possession of the estates, on the ground that his father's will was not sufficient to pass the realty and that it only amounted to a will of personalty. The question was twice solemnly argued on a special case before the Judges of the Supreme Court, in their common law jurisdiction, and they adjudged the will and codicil of the 7th February, 1824, taken together, to be a good devise of the testator's real estates, and gave judgment accordingly. Ann Riley, the widow of the testator, died in May, 1830. In 1832, the executors and trustees filed a friendly bill in Equity against the survivors and devisees, praying a decree to enable them to execute the trusts of the will, charging that by reason of the situation, state, and condition, and various peculiarities of the freehold properties, they were unable, without selling the same, to make a suitable and equal distribution of the estate and effects of the testator, agreeably to his intention, and that it was necessary to sell the estates, and out of the proceeds to distribute to the devisees their shares respectively. At that time Edward Riley the younger, and heir-at-law, was out of the colony, but the Court pronounced a decree in terms of the prayer of the bill, subject to any right which the heir-at-law might thereafter set up to dispute the will. This decree, however, was never drawn up, and the executors appear not to have taken any farther steps in the matter. Since then, Edward Riley, having realised his claim as heir-at-law, died in June, 1840, and by his will devised his share of the estates to his half-sister, (one of the infant defendants,) Frances Elizabeth. The now eldest son, and heir-at-law, George Riley, having first mortgaged his share, has subsequently executed an absolute conveyance in fee thereof, to the plaintiff, Thos. Burdekin, and he has joined with him in praying an account of the rents and profits of the estates since the death of the testator. One of the executors, William Walker, Esq., is out of the colony, but Robert Campbell, Esq., the other executor, who has acted in the trusts, has in his answer so fully and satisfactorily accounted, that any reference thereof to the master has been waived on behalf of George Riley. The case now comes before this Court by original Bill, by Bill of Revivor, and by supplemental Bill, and all necessary persons are made parties. The defendants, by their answers admit all the material facts, and the proofs are sufficient to establish the plaintiffs' claim in Equity for a decree of partition. The bill prays that a commission may issue to certain commissioners, to make a fair and full partition and division of the lands, and that one-seventh thereof may be allotted and conveyed to the plaintiff. All the defendants, except the executors of Edward Riley the younger, deny, by their answers, that a division of the lands would be advantageous to the devisees, and they allege that from the nature and situation of the estates they cannot be equally divided. The executors of Edward Riley admit the utility of a partition. The estates in question appear to consist first of about a quarter of an acre of land at the corner of Hunter and George-street, one hundred acres with a capital mansion and offices erected thereon, at Woolloomooloo, five acres, with a mill erected thereon, at the Surry Hills, six other acres in the same place, a farm of two hundred acres in the District of Minto, with a house and offices erected thereon, three thousand and thirty acres at Mittagong, and five hundred acres at the same place. Although some of the defendants in their answers allege the great difficulty of making a partition of the estates by reason of their situation and the nature of them, yet no insuperable difficulty has been pointed out; and it is wholly left to the Court to say whether a commission shall under the circumstances set forth in the bills and answers issue. I apprehend that in the present case, this Court has no discretion, in refusing a partition inasmuch as the complainant's title is not disputed. It would have a discretion upon a suspicious title; but it is said in Baring v. Nash, 1 Ves. Rea. 556, that if the title is clear, a partition is matter of right. Here the title of the complainant is not questioned, and he has a right to the commission prayed. It will be for the commissioners to determine the proportionate value of each share. Their division will be made in reference to the quality and true value of the lands, and not to the quantity or number of acres. (Co. Litt., 167 b., Styl. Reg. 258.) The only seeming difficulty would be in the partition into shares of each and every part of the several estates, on two of which there are dwelling-houses and out offices; but in acting upon the settled principle of Equity, there will be really no difficulty. If indeed, there were only but one entire subject of division great inconvenience might arise, although that inconvenience, however palpable, could not restrain the Court as in Warner v. Baynes, Amb. 589, which was the partition of a cold-bath, but here the subjects of partition are numerous, and it is not necessary that every part should be divided. Care must undoubtedly be taken that the parties have the proportionate value of their shares allotted to them; but there is no reason that any part of the estate should be leasened in value by dividing the whole. In the case of Clarendon v. Horn 1. P., Wms., 446, where partition was decreed of an estate, consisting of a great house and park, and farms and lands about it; the defendant, (to whom one third belonged, one of the plaintiffs and his wife being entitled to the remaining two-thirds) insisted to have one-third of the house, and also one-third of the park, assigned to him by the Commissioners; and it was urged, in his behalf, that as at law, in case of writ de partitione faciendd, a tenant in common should have half the house, every other toll-dish, and every other turn of a churn, &c. So equity, in the present case, followed the law; but Lord Chancellor Parker said, that if the defendant should have one-third of the house and of the park, this would very much lessen the value of both. By the same reason every farm-house upon the estate must be divided, which would depreciate the estate, and occasion perpetual contention; and it might be the intent of the defendant, when this partition was made, to compel the plaintiff to give him forty years purchase for his third of the house and park; therefore, since the plaintiff and his wife had two thirds he recommended that the seat and park should be allotted to them, and that a liberal allowance out of the rest of the estate should be made to the defendant in lieu of his share of the house and park. This case illustrates the principles upon which the Commissioners will proceed, should any difficulty arise in the mode of partition. Under the circumstances of this case I have no alternative but to decree a partition of these estates into seven parts, and direct, in terms of the prayer of the bill, that a commission do issue, directed to commissioners to be chosen by the parties for that purpose. When the partition is made, in pursuance of the decree, it will finally be perfected by mutual conveyances of the allotments to the several parties. There will be no difficulty in completing the partition, by reason that some of the defendants are infants, for the recent Act of Parliament (adopted by the local Legislature), 1 Will, IV., c. 65, will enable the defendants, under the directions of the Court, to execute conveyances notwithstanding their minority. The question of costs will remain in abeyance until the final decree. See 2 Newl., 481. I do not think it necessary to appoint a receiver in the mean time, as prayed by the Bill, no exception being taken to the manner in which the rents and profits have hitherto been collected and accounted for by the executors under the will. It will now be referred to the master to settle the minutes of the decree and make out a commission agreeably thereto, directed to such commissioners as the parties shall choose, subject, in case of dispute, to the determination of the master.

Published by the Division of Law, Macquarie University