James DONOVAN Esq of Antigua West Indies. [17852]

  Research Notes:

WEST INDIAN INCUMBERED ESTATES COURT.
8, Park Street, Westminster, May 10, 1865.
Before James Fleming, Esq., Q.C., and Reginald J. Cust, Esq
., Commissioners.
Re Scott.
Ex parte Heagan.
Ex parte Shand.
Practice - Transfer of proceedings - Opposition to sale.
The petitioner has a right to decide whether he will proceed in the Central Court or in the Local Courts and the proceedings will not be transferred except upon special grounds. The fact that an estate has been for many years administered by a receiver for the benefit of incumbrancers and that the owner has no beneficial interest is of itself a ground for sale.
6 APPENDIX.
In this case a conditional order for sale of an estate called ** Donovans,** in the island of Antigua had been made.
This estate formerly belonged to James Donovan, who died in 1811, having by his will devised it to his son, Richard Donovan, for life, with remainder (as events happened) to James Hancock Donovan for life, with an ultimate remainder (after certain limitations which failed) to Richard Donovan in fee.
Richard Donovan, by his will, devised the estate to his daughter, Caroline Scott, for life, with remainder to her first and other sons in tail. Richard Donovan died in 1816, and James Hancock Donovan died about 1834 ; Caroline Scott died, leaving an eldest son, Honeywood Scott, who was the present owner. On the death of Richard Donovan in 1816, a suit was instituted in the Island Court of Chancery on behalf of James Hancock Donovan (then an infant), and a receiver was appointed. Another suit was instituted in 1833 for the purpose of ascertaining the priorities of certain incumbrances affecting the estate, and much litigation took place, resulting in an appeal to the Privy Council. By an order of the Privy Council, made in 1839, it was declared that Messrs. Shand had a first charge on the estate for a sum exceeding L10,000, in priority to certain legatees under the will of James Donovan, who claimed legacies amounting to about L3700.
The estate had been in the hands of a receiver from 1816 to the present time, and the proceeds had been applied in keeping down the interest of the above charges, and in reducing to a certain ex- tent the debt of Messrs. Shand, but the balance due in respect of that debt amounted to more than £6000, and the legacies were unpaid. Nothing had been received by any person claiming as owner for a great many years, the estate having been administered by the receiver for the benefit of the incumbrancers alone. In January, 1865, Messrs. Shand, the first incumbrancers, being desirous of obtaining payment of the principal of their debt, petitioned for a sale, and a conditional order was accordingly made.
APPENDIX. 7
Mr. Heagan, who claimed under one of the above named legatees, thereupon filed a notice of opposition to the conditional order, on the ground that a sale would be unjust and inexpedient, and he also presented a petition under the 12th General Rule for the transfer of the proceedings to the Court of the Local Commission, and both the above matters now came on for hearing.
It was contended on behalf of Mr. Heagan, on the petition for transfer, that the legatees whom he represented resided in the island, and were unable to incur the expense of retaining agents or solicitors in England, and that, as Messrs. Shand were obliged to keep agents in the island, it could be no disadvantage to them to conduct the proceedings in the Local Court.
On the second question, the opposition to the conditional order, Mr. Heagan contended that there was no case for a sale, as the estate was, in favourable times, capable of "paying its way," i. e., of keeping down the interest of the incumbrances, and that it had only failed to do so during the last three years, in consequence of the exceptional drought.
On behalf of Messrs. Shand it was urged on the first point that, as petitioners, they had a right to choose their own Court ; and, on the second point, that they had a right to call for payment of their principal as well as their interest. If the present system were continued, the risk would be theirs while the benefit (if any) would accrue to others. It appeared by the evidence that the expense of passing the receiver's accounts of this estate in the Island Court of Chancery amounted annually to L150, but that owing to some reform which had been introduced, it was hoped that in future it might be done for L90.
Waddy appeared for Mr. Heagan.
Archibald Smith appeared for Mr. Shand; the petitioner.
Mr. Butt (of the firm of Booty and Butt) appeared on behalf of Mr. Scott, the owner, and supported the conditional order. He also objected to a transfer of the proceedings.
Mr. FIEMTNO, Q. C, said that the application to transfer the proceedings to the local Court must be refused with costs. There was no ground whatever for the application. The petitioner had a right to select the forum most convenient to himself, and had
8 APPENDIX.
besides a better right to do so than Mr. Heagan, who was a puisne incumbrancer. The principal matters involved in the case had already been the subject uf argument in the Privy Council, where the legatees had been fully represented, and there was nothing in the case which could not be disposed of as easily in London as in the colony. As to the second point, he could not see that it was **unjust or inexpedient** within the meaning of the 8th section of the Act of 1858 that the estate should be sold. On the contrary he thought that the petitioners were entitled to realise their security, and to obtain, through the medium of the Incumbered Estates Acts, that relief to which they would have been clearly entitled in a Court of equity. The circumstance that the estate had been managed by a receiver since 1816, at a great cost and that there had been no beneficial owner for many years, brought the case within the policy of the Acts, and was, of itself, one of the strongest arguments in favour of a sale.
Mr. Cust concurred, and said that, although he had been connected with the Incumbered Estates Court since its first institution, he had never known a case in which the necessity for a sale was more strongly manifested.
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The following sales under the West India Encumbered Estates Court took place in London on Tuesday: Donovan's Estate in the parish of St George, on the island of Antigua, containing 247 acres, for L1500. The purchaser was Mr Francis Shand of Liverpool.
Ref: Liverpool Mercury Thursday, 23 November 1865.

James married.