“‘And I further direct that if at any time this trust or the capital moneys of this trust shall be or shall become the subject matter of litigation through the interference or intervention of any party or parties other than my said partners, or the survivor or survivors of them, then and forthwith, and from the commencement of such litigation, the said trust shall cease and determine, and the capital sums of the said trust shall be distributed and applied in the form and manner next above provided.’”
“What was that form and manner, Mr. Barnett?”
“Your lordship has a copy of the will before you. The previous clause directs the distribution of the money amongst the partners for their own benefit in a certain eventually.”
“Oh, yes, I see.”
“Now, the surviving partners of the late Sir John profess ignorance of the original purposes of the trust. They assert that their instructions were sealed in a packet which was only to be opened in a certain eventuality; and they say, also, that those instructions directed them, in the event of litigation, to destroy the parcel unopened.
“The Crown commenced litigation. The parcel was destroyed. But the result of that litigation was that, under the clause in Sir John’s will, which I have just read to your lordship, the court decrees the trust funds to have vested in the three surviving partners in their own right. But if the trustees and executors are really in the entire ignorance they suggest, we are not. Not only was Lady Rellingham aware of the purposes of the trust, but what we believe are the actual terms of the instructions concerning it were within her knowledge. Amongst certain papers of Sir John’s, which were in her possession, is a paper containing these words:—
“‘Upon trust, to be settled tightly for her exclusive use and benefit, without power of alienation or anticipation in the names of suitable trustees, the new trust deed to be executed immediately after my death, and to contain a clause cancelling the trust created by my will.’
“That paper was given to Lady Rellingham at the same time as the letter which I shall presently read to your lordship and which she was to show to the trustees and executors. Now, my lord, if, as I submit, we have a right to assume those were either the actual words or an epitome of the instructions Sir John left to his executors, then I submit to your lordship that it was their duty to at once transfer this money, and themselves create this trust in favour of Lady Rellingham. I submit it had vested in her as the beneficiary, and, as a new trust, was not subject to the clause by which litigation transferred it to the surviving partners. Alternatively, my lord, I shall submit, that if the old trust still existed, and the money therefore under the terms of the will was still subject to the forfeiture clause, and was accordingly forfeited, then the trustees were guilty of negligence in not having constituted the new trust, and through their negligence Lady Rellingham has found the provision made for her forfeited through causes over which she had no control, and for which negligence she is entitled to damages. Her statement of claim, my lord, as you will see, alleges the further negligence that the forfeiture was consequent upon the refusal of the partners to disclose the terms of the trust, and that they were not justified in that refusal, but, on the other hand, deliberately provoked the litigation which resulted in the forfeiture. Before calling my client, my lord, I propose to proceed chronologically by first proving the marriage.”
Formal proof of the marriage and the certificate was given, and then Mr. Barnett called “Esther Manuel.”
An old woman, dressed plainly but inexpensively, came forward, and was sworn. She gave her name and her residence in Nassau Street, Dublin, and said that she was the widow of Pedro Manuel.