Freehold Estates
Cases
Jameson v. McGovern
[1934] IR 770
Sullivan P. 758
Supreme Court
MURNAGHAN J. :
27 April 1934
This appeal raises in this Court the question upon which there has been a wide diversity of judicial opinion, viz., whether, in an executed declaration of trust, words and terms known to the common law must be given the same effect in equity, or whether the construction of the trust can be gathered from the intention of the settlor.
In Ireland in the case of Meyler v. Meyler (3) the Vice-Chancellor, in interpreting the equitable limitations in a marriage settlement, held that children could not take more than life estates in the absence of words of inheritance. He said (at pp. 529, 530): “But I have arrived at the conclusion that I am precluded by the authorities upon the subject from going into the question of intention, to be ascertained, as it must be in all cases where the technical rules applicable to deeds do not stand in the way, from a careful perusal of the whole instrument. It is admitted that if this were not the case of a trust estate, as it is, but of a legal estate, with uses executed, there could be no question as to the estates given to the children, who, for want of words of inheritance, could take no greater estates than for their respective lives. It was contended for the defendants that the technical rule on this subject does not apply to declarations of trusts where the whole legal fee is in the trustees, and that in such cases the Court is authorised to act upon the intention ascertained from the whole of the deed. For this contention there is certainly a great weight of opinion of eminent text-writers on the subject. But it appears to me that a series of cases, commencing with Holliday v. Overton (1), settles the rule, so far at least as Courts of first instance are concerned, that even in trust estates it is not a question of intention but a technical rule in all cases of deeds executed prior to the Conveyancing and Law of Property Act, 1881, and of all subsequent deeds, save so far as the 51st section of that Act alters that rule.” Chatterton V.C., in thus following the cases of Holliday v. Overton (1), Lucas v. Brandreth (2)and Tatham v. Vernon (3), all decided by Sir John Romelly M.R., supported this position by citations from Lewin on Trusts, and he also directed attention to the 51st section of the Conveyancing Act which applies to future deeds of conveyance, whether of legal or equitable estates, and he observed that this Act “stopped very far short of enacting that an intention deduced from the context or the actual limitation itself should be sufficient to pass by deed an estate of inheritance without technical words.” It is right to point out that dicta of Deasy L.J. in Lysaght v. McGrath (4) in support of the contrary view were cited to the Vice-Chancellor during the argument.
The cases of Holliday v. Overton (1) and Meyler v.Meyler (5) appear to have been uniformly followed as,e.g., by Chitty J. in In re Whiston’s Settlement (6), until in In re Tringham’s Trusts (7) Joyce J., founding his judgment upon the opinions of earlier conveyancers and some remarks in Pugh v. Drew (8), held that, where the intention was clear, an equitable estate could pass in a trust executed without words of inheritance. This decision of Joyce J. (9) has since, I think, been followed consistently in this country in preference to the ruling given by Chatterton V.C. in Meyler v. Meyler (5), as witness In re Houston, Rogers v. Houston (10) decided by Wylie J.; In re Stinson’s Estate (11) decided by Ross J.; In re Cross’s Trusts (12) decided by O’Connor M.R.; and In re Murphy and Griffin’s Contract (13) decided by Powell J. In England the decision of Joyce J. in In re Tringham’s Trusts (7),although followed in several cases, was not accepted in many reported decisions, and finally the point came before the Court of Appeal in England in In re Bostock’s Settlement, Norrish v. Bostock (14) in which case the decision of Joyce J. was overruled. In the case of The Land Purchase Trustee, Northern Ireland v. Beers (1) the Court of Appeal in Northern Ireland considered the point subsequently to the decision given in In re Bostock’s Settlement (2), but the case was determined without the necessity of making a ruling upon the correctness of the Irish decisions given since the case of In re Tringham’s Trusts (3).
It is desirable at this stage to state briefly the facts upon which the question before the Court has arisen.
Certain premises in the town of Manorhamilton, held under a fee-farm grant made in pursuance of the Renewable Leasehold Conversion Act, were agreed to be sold to the tenant in occupation, and in the making of title a marriage settlement, dated 26th December, 1881, was relied upon as vesting the property in fee in Emily Robinson. By this settlement William Henry Robinson conveyed to a trustee and his heirs the said premises, and the intended wife assigned to the trustee her reversionary interest in certain moneys, and trusts were declared to pay the income”of all and singular the trust premises hereinbefore expressed to be hereby granted and assigned respectively.”The first trust was to pay the income under a protected life estate for the husband, followed by a life estate with restraint upon anticipation in favour of the wife during her life, and thereafter a trust for the issue subject to appointment and in default of appointment “in trust for all the children or any the child of the said intended marriage who, being sons or a son, shall attain the age of 21 years, or, being daughters or a daughter, shall attain that age or marry, and if more than one in equal shares.”The settlement went on to provide that in default or failure of children (which event happened) “the said trustees or trustee shall hold the trust premises hereinbefore brought into settlement by the said William Henry Robinson and the annual income thereof or so much thereof respectively as shall not have been applied under any of the trusts or powers herein contained in trust for such person or persons and for such estates and interests as the said William Henry Robinson shall by deed or will appoint and in default of such appointment and so far as no such appointment shall extend then for the survivor of them, the said William Henry Robinson and Emily Abbey, absolutely.”Emily Abbey, otherwise Emily Robinson, was the survivor, and, as the estate given was an equitable estate, the point to be determined is whether, in the absence of words of inheritance, Emily Robinson became entitled to the equitable fee.
When the system of trusts came to be moulded after the Statute of Uses, the Court of Chancery had to lay down rules for the construction of gifts of these new equitable interests. In 1693 Lord Keeper Sommers in the case of Sheldon v. Dormer (1) stated the rule as follows:”We are here upon a construction of a trust, where the intent of the party is to govern; and Courts of Equity have always in cases of trusts taken the same rule of expounding trusts, and of pursuing the intention of the parties therein, as in cases of wills; and that even in point of limitations of estates where the letter is to be as strictly pursued, as in any case.” Lord Hardwicke also sought to construe all trusts according to the intention of the parties and even went so far in Bagshaw v.Spencer (2) to deny the distinction between executory trusts and trusts executed. The principles of the Court of Chancery were, however, moulded gradually, and in the time of Lord Northington a definite ruling was made and the distinction between executory trusts and trusts executed became firmly established: Wright v. Pearson (3).In Austen v. Taylor (4) Lord Northington said: “But where the trusts and limitations are already expressly declared, the Court has no authority to interfere, and make them different from what they would be at law.” Again, in White v. Carter (5) Lord Northington said: “For though the Court has no power, where the limitations are expressly declared, to give the words a different sense from what they would bear at law, yet, where its assistance is required to direct the conveyance, it will give that direction according to the intent of the testator apparent upon the face of the will, if that intent is not contrary to any rule of law.” The distinction taken by Lord Northington became firmly established. I have only to refer to Lord Eldon’s decision in Jervoise v. Duke of Northumberland (6). Lord Eldon decided this case in 1820 after a long judicial career in which he systematised the doctrines of equity; and, speaking of executed trusts, he said, at p. 571: “But these are cases where the testator has clearly decided what the trust is to be; and as equity follows the law, where the testator has left nothing to be done, but has himself expressed it, there the effect must be the same, whether the estate is equitable or legal.”
It is to be remarked that these citations deal with the construction placed by the Court of Chancery upon executed declarations of trust and are independent of other heads in equity, such as, for example, to what extent equity will aid a purchaser for value who has obtained a transfer of an equitable estate without words of limitation. It is remarkable that the opinion which is said to be supported by the eminent conveyancers in the past is dependent upon their text-books and is not supported by any citation of decisions in the Court of Chancery. It is, however, desirable to examine them in detail.
In Cruise’s “Digest of the Law of Real Property,”Title XI, “Use,” Chap. 2, sect. 32, is found a passage which has been relied upon: “In the alienation of uses none of those technical words which the law requires in the limitation of particular estates were deemed necessary. Thus, a use might be limited in fee simple without the word heirs; for if a sufficient consideration was given, the Court of Chancery would decree the absolute property of the use to be well vested in the purchaser. And as a use was a thing which consisted merely in confidence and privity, and was not held by any tenure, the rules of the common law were not violated.” This citation deals in terms with uses before the Statute of Uses, and I do not think the author meant it to apply to trusts. Certainly, in the 4th edition of this work published in 1835 the editor did not so understand it. For, in Title XII, “Trust,” chap. 1, two sections appear to have been added by the editor which sum up in precise language the effect of the decisions which I have dealt with:
“Sect. 87. [Notwithstanding the dictum of Lord Hardwicke in the case of Bagshaw v. Spencer (1) that all trusts were in notion of law executory (and which has been controverted by Fearne with his usual ability) the distinction is now well established between trusts executed and trusts executory, in marriage articles and wills.
Sect. 88. Where the devise or trust is directly and wholly declared by the testator or settlor, so as to attach on the lands immediately, under the deed or will itself, it is a trust executed and complete; and must be construed strictly according to its legal import, and in analogy to corresponding limitations of legal estates: but where the devise, trust, or agreement is directory or incomplete, describing the intended limitation of some future conveyance or settlement directed to be made for effectuating it, there the trust is executory; and the Court of Chancery will not construe the devise or articles strictly, but will endeavour to discover the intention, and execute the trust, according to that intention.]”
The next passage relied upon is Butler’s note to Coke upon Littleton, 290 b (Note 249), XIV. The passage occurs in what Butler describes as an “Elementary outline of some leading points in the doctrine of trusts affecting real property.” The passage, as cited, is given in some places as:”A mere declaration of trust in favour of another has been held sufficient to transfer to him the equitable fee.” So stated, the passage is cited as laying down a rule for the proper construction of executed trusts. But read in its context, Butler states:”An equitable estate is by its nature incapable of livery of seizin, and of every form of conveyance which operates by the Statutes of Uses. In the transfer, therefore, of equitable estates these forms of conveyance have been dispensed with and a mere declaration of trust in favour of another has been held sufficient to transfer to him the equitable fee.” It seems to me that Butler is contrasting the modes of conveyance at common law with a simple declaration of trust, but that he is not at all stating what form a declaration of trust must take.
The next citation relied upon is from Mr. Preston, in Vol. II of his “Elementary Treatise on Estates,” p. 64. He writes:”The general rule is that limitations of trust are to be construed in like manner and by the like rules as limitations of a legal estate; and therefore in deeds the fee cannot pass by grant or transfer inter vivos without appropriate words of inheritance. But in contracts to convey, and in trusts declared in a conveyance, the fee may pass, notwithstanding the omission of a limitation to the heirs. Therefore articles to convey to A. B. in fee; or a conveyance to A. B. and his heirs, in trust, to convey to C. D. in fee simple, would confer a right in equity to call for a conveyance of the inheritance. So a conveyance to A. and his heirs in trust, totidem verbis, for B. in fee, would pass a fee.” As I understand this passage the first portion states the rule of construction applicable to trusts executed in very distinct terms, while the latter portion mentions certain exceptions which are either contracts executory or conveyances for value where equity will assist in the case of a defective conveyance. Unless by the last example Mr. Preston was stating the rule of equity as to conveyances for value, he states two contradictory propositions.
The last citation is the opinion of Mr. Hayes in his”Introduction to Conveyancing,” 5th edit., Vol. I, p. 91, published in 1840. He says: “Trusts like uses before the Statute pursued the course of succession appointed for legal interests of a corresponding description. They were expounded to, by analogy to the rules of legal construction. But these rules did not always govern in equity with absolute sway. The rule, for example, which required the word heirs to pass the fee in a conveyance at common law, although it was extended to uses within the Statute, was not rigidly applied to trusts. If land was limited in trust for A. without more, equity, in conformity to the rule of law, gave to A. the beneficial interest for life only; but if it could be collected from the instrument that A was meant to have the absolute interest, equity, esteeming the intention more than the rule, gave him the beneficial fee without the aid of the word heirs.” Mr. Hayes in this passage was either speaking of a conveyance for value made in the form of conveyance with declaration of trust, which is, I think, more likely, or he was following the opinion of Lord Hardwicke without adverting to the fact that his opinion had been dissented from for over a century.
In his judgment in In re Tringham’s Trusts (1) Mr. Justice Joyce relied upon these passages above examined, and these and several others were relied upon in Lysaghtv. McGrath (2) where the limitations in a voluntary deed were ultimately to named children “absolutely.” In reference to these citations May C.J. in Lysaght v.Mcgrath (3) says at page 156: “Practically, however, I apprehend that conveyancers deal with executed trusts just as they would with legal estates.” Deasy L.J. did not decide that the fee passed, although he thought the citations from text-writers might lead to that conclusion. FitzGibbon L.J. appears to have held that the fee did not pass, as he said the plaintiffs were not entitled at law and had no equity upon which to found a claim. Mr. Justice Joyce also relied in his judgment on Pugh v. Drew (4).The deed to be construed was one settling freeholds upon such and the same trusts as were declared and contained in a settlement of leaseholds made by another deed. Under the settlement of the leaseholds, they were held in the events which happened for A. and B. in equal shares, share and share alike. The objection was taken that there was no mention of the heirs of A. and B. James V.C. overruled this objection, saying that the absence of words of limitation was not absolutely fatal under all circumstances.
I regard the case of Pugh v. Drew (1) as a clear case of a referential trust declared by reference to another deed and in its nature executory, where the intention of the settlor can be sought out by the Court.
In the Court of Appeal in England Lord Sterndale M.R. in In re Bostock’s Settlement (2) did not deal with the authorities in detail, but stated his conclusions in the words used in Lewin on Trusts, 12th ed., p. 125: “‘But though technical terms be not absolutely necessary, yet where technical terms are employed they shall be taken in their legal and technical sense. Lord Hardwicke, indeed, once added the qualification: “unless the intention of the testator or author of the trust plainly appeared to the contrary.” But this position has since been repeatedly and expressly overruled, and at the present day it must be considered a clear and settled canon that a limitation in a trust, perfected and declared by the settlor, must have the same construction as in the case of a legal estate executed.'”Warrington L.J. and Younger L.J. agreed, and it is noticeable that Younger L.J. did not find any such difference of view in the view of older text-writers and conveyancers as has been suggested.
I have dealt at perhaps too great length with the decided cases and the opinions of conveyancers, because I find in so many recent Irish cases a welcome adhesion to the views put forward by Joyce J. in In re Tringham’s Trusts (3). It may be that Lord Hardwicke was wiser than his successors and that equitable interests would have better flourished if they had not been measured so strictly by analogy to the rules of law. But my reading of the cases and authorities is that the stricter rule has prevailed for almost two centuries, and in my opinion the grounds put forward for departing from the rule were not justified by any authority. I agree with the decision of the Court of Appeal in England in In re Bostock’s Settlement (2), and am of opinion that so many of the Irish authorities as are based on the authority of In re Tringham’s Trusts (3) must be overruled.
There is, however, on the facts of the present case a special feature which requires consideration. The settlement was made before marriage and the agreement was to settle the husband’s lands on the wife absolutely if she survived him. Every provision with regard to her falls directly within the consideration: Nairn v. Prowse (4).In my opinion in this case the wife has an equity independent dependent of the declaration of trust made by the settlor and this equity is sufficient to construe the settlement as giving her the equitable fee which it was contracted that she should have in the events which have happened, Holliday v. Overton (1) before Sir John Romilly M.R. was the case of a post-nuptial settlement by a widow, and the Master of the Rolls took the distinction, saying that the children were not purchasers of the fee or of any estate of inheritance under the contract.
But as the case was argued solely upon the point which we have decided in favour of the appellant, and as the respondents do not ask us to make a decree upon the terms as to costs which we would be obliged to order in ease of the appellant, in the circumstances the appeal must be allowed.
The same order will be made in the appeal conversant with the promissory note, both appeals being treated as one appeal.
Gilmore v. The O’Conor Don and Another.
[1947] IR 479
Gavan Duffy J.
Supreme Court
MAGUIRE C.J. :”
3 July
I have read the judgment which Mr. Justice Murnaghan is about to read. I agree with it and have nothing to add.
MURNAGHAN J. :”
This appeal has been brought by Rev. Charles Denis O’Conor, O’Conor Don, against an order of the High Court dated 4th February, 1946, made by Mr. Justice Gavan Duffy, now President of the High Court. This order was made in an action brought by John Gilmore against the present appellant and against Gertrude Gwendoline O’Conor, who was sued as personal representative of Owen Phelim O’Conor, deceased. This action arose out of an agreement for the sale of growing timber made by Owen Phelim O’Conor, O’Conor Don, in his lifetime, and the substantial question involved is whether the estate of Clonalis which was, at the date of the contract and still is, under settlement, was bound by this contract after the death of Owen Phelim O’Conor.
Owen Phelim O’Conor, O’Conor Don, became, under the will made by Denis Charles O’Conor, O’Conor Don, dated 5th September, 1916, and two codicils dated respectively 30th November, 1916, and 21st December, 1916, tenant for life without impeachment for waste of all the testator’s freehold lands and hereditaments. Since he came into possession on 23rd February, 1917, he frequently exercised his common law right of licensing purchasers to cut and carry away growing timber on the estate, and he retained, as he was fully entitled to do, the purchase money paid in respect of such timber. It is well established that the common law right of the tenant for life without impeachment for waste extends only to trees actually severed from the soil during the lifetime of such tenant for life, and any license given by him to cut timber ceases at his death.
In the year 1941 there was a considerable demand for timber, and about the end of January Owen Phelim O’Conor notified the plaintiff that he had a considerable number of trees at Clonalis, in the County of Roscommon, marked for sale. The plaintiff resides at Moylough, County Galway, and is a timber merchant and, at the time, was actively engaged in purchasing growing timber and cutting it for sale. Negotiations followed, during which the purchaser to be made no inquiry as to the title of Owen Phelim O’Conor, whom he says he always regarded as absolute owner; nor did the O’Conor Don disclose his title beyond the description contained in the agreement in writing where he is called”landed proprietor.” It was necessary to comply with certain provisions of the Forestry Act and after these had been satisfied an agreement in writing, signed in duplicate, one by the purchaser and one by the vendor, was entered into. By this agreement the plaintiff agreed to buy from O’Conor Don a specified number of trees, already marked and agreed to, for the sum of £1,383, payable on signing the agreement. The agreement made provision as to the use of a sawbench and incidental matters and the purchaser bound himself to repair fences, walls, gates and gate piers damaged by his men. He also undertook to leave Clonalis within two years after signing the agreement, viz., two years from 10th April, 1941. A deposit of £200 had been paid to Owen Phelim O’Conor on the 19th February, 1941, and the balance remaining was similarly paid on the 15th April, 1941, and a receipt given by Owen Phelim O’Conor.
In the years following, two other contracts were made by correspondence for the sale of two other lots, one on the 3rd August, 1942, for £440, and the second on the 6th February, 1943, for £718 10s. 0d. The plaintiff, who was busy in other parts of the country, did not cut any of the trees, and by letter dated the 29th December, 1942, Owen Phelim O’Conor wrote to him saying: “You are dreadfully slow in starting to cut the Clonalis trees.” He urged the pressing necessity of cutting before the war should be over, and in respect to one of the lots at that time under negotiation he said: “I am not a seller when war is over.” On the 11th February, 1943, Owen Phelim O’Conor wrote to the plaintiff saying that he had written to the authorities for an extension of time for the cutting of the trees in the first purchase. The conditions of the permit, obtained under the Forestry Act, required that these trees should be cut in a specified time and that re-planting should be done by the licensee, Owen Phelim O’Conor. Owen Phelim O’Conor, O’Conor Don, died on the 1st March, 1943.
On the death of Owen Phelim O’Conor the present appellant became tenant for life without impeachment for waste under the settlement already referred to. Immediately after the death of Owen Phelim O’Conor the plaintiff wrote to the appellant that he was desirous of starting to cut the trees which had been agreed to be sold to him by the previous tenant for life. As early as 1940 the appellant had written to the Forestry Department asking them not to sanction the cutting of such a number of trees as the then tenant for life was seeking to have a licence for. The appellant was not willing to allow the plaintiff to cut the trees specified in the contracts made by Owen Phelim O’Conor, and warned the plaintiff to desist from cutting under this contract. No agreement was reached between the plaintiff and the appellant, and the appellant subsequently made an agreement with other parties for the cutting of a limited number of the trees claimed by the plaintiff, and these trees have since been cut and removed.
At the hearing of the action the defendant Gertrude Gwendoline O’Conor undertook to return to the plaintiff the purchase money received by her deceased husband, and the action proceeded against the appellant alone, Gertrude Gwendoline O’Conor being struck out as a defendant. By the order of the High Court inquiries were directed as follows:”
1. An inquiry as to which trees comprised in the contracts in the pleadings mentioned have been felled by or by the permission of the defendant, Charles Denis O’Conor.
2. An inquiry as to what damage the plaintiff has sustained by reason of the refusal of the defendant, Charles Denis O’Conor, to permit the plaintiff to fell and take the said trees.
In so far as the actual intention of Owen Phelim O’Conor may be material it is perfectly clear that he intended that the purchase moneys of the trees should be his own private property. This intention was not directly stated to the plaintiff but is proved from correspondence between Owen Phelim O’Conor and the Forestry Department, and that such was the intention of Owen Phelim O’Conor is expressly found by the learned President. Whatever the legal position may be it was certainly a source of loss to the personal estate of Owen Phelim O’Conor that the trees were not cut in his lifetime. If they had been so cut the purchase moneys would have been, beyond all dispute, his private property.
The learned President interpreted the legal effect of the agreements for the sale of the trees in accordance with the view expressed by Littledale J. in Smith v. Surman (1),and in accordance with the decision in Jones v. Tankerville (2).
He construed these agreements as licences from the tenant for life to cut the trees specified, and as sales of these trees as chattels when cut. During the argument before this Court, counsel for the appellant did not dispute that an agreement to give a licence to cut growing timber and a sale of the trees when cut might be within the powers of a tenant for life under the Settled Land Act, 1882, and the whole argument has proceeded on this basis.
Originally in the pleadings the plaintiff’s claim seems to have been one against the estate of Owen Phelim O’Conor on the ground that he had warranted that he had good right and title to sell the timber and that the said contracts would be valid and enforceable after his death. When the action was at hearing on the 5th and 6th December, 1945, no evidence was forthcoming to support any such alleged warranty. After reserving his decision, the learned President, by a memorandum in writing read in Court on the 21st December, 1945, intimated that the plaintiff might be entitled to succeed on the ground, inter alia, that the contracts ought, in equity, to be attributed to the only effective power ”that is, the power of a tenant for life under ss. 3 and 31 of the Settled Land Act, 1882. See Mogridge v. Clapp (3).Subsequently, by an order dated the 15th January, 1946, leave was given to the plaintiff to amend his statement of claim in several ways, but it is only necessary to quote the amendment contained in par. 7 (c) which is as follows”
“7 (c). In the alternative the plaintiff says that the said Owen Phelim O’Conor should, in equity, be deemed to have entered into the said three contracts for the purpose of carrying into effect his powers as tenant for life under the Settled Land Act, 1882, and that, accordingly, such contracts are binding on and enure for the benefit of the settled estate and are enforceable against the defendant Charles Denis O’Conor as a successor in title for the time being.”
In his judgment the learned President expressed his opinion that if the trees were sold in the manner described under the exercise of a power given by the Settled Land Acts, a tenant for life unimpeachable for waste would nevertheless be entitled to the purchase money of all trees cut in his lifetime. He also held that to make the contract effective for the purchaser the tenant for life although unimpeachable for waste must, in equity, be deemed to have made the contract under the power given by the Settled Land Act. In reference to this matter, he says:”
“The agreements have, apparently, become nugatory on the rigid common law view as exercises of the vendor’s common law power, because the selling life-tenant died before the trees were felled; but, if the agreements, properly made by the deceased vendor, are attributable to an exercise of his statutory powers, they bind all persons interested under the settlement and in particular continue to bind the defendant, his successor in title, the present tenant for life without impeachment of waste. I hold that the three agreements must be referred to the vendor’s powers under the Act of 1882, for the reason that a vendor’s contract must, in equity, be attributed to that power which will make them effective, because a Court of Equity must take him to have engaged with his purchaser to make the contracts as effectual as he has power to make them: Blake v. Marnell (1).”
The elaborate arguments of counsel centred principally around these two matters although quite a number of subsidiary points were dealt with in argument. If the first view expressed be correct, viz., that the purchase money of trees arising from a sale made under the statutory power, will belong to the tenant for life unimpeachable for waste at the time when the trees are severed, no great injustice can occur if the trees are cut in his lifetime. I can, however, find no authority for the view that purchase money of timber arising from a sale under the statutory power is other than capital money or that it can be paid out to a tenant for life unimpeachable for waste if the trees are severed in his time. The only case referred to in support of the view, Lowndes v. Norton (2), dealt with quite different facts. In that case a life-tenant wrongfully cut down timber and was succeeded by a tenant for life unimpeachable for waste. It was held that the second tenant for life was entitled to the value of the timber which he was entitled to cut by virtue of his common law power, and which he had been prevented from cutting by the wrongful act of his predecessor. So far as authority touching the matter appears to exist, the decision in In re Llewellin, Llewellin v. Williams (3), leads quite to the contrary conclusion. In my opinion if Owen Phelim O’Conor had sold under the power given by the Settled Land Act, 1882, and all or any of the trees had been severed in his lifetime, he would not have been entitled to the purchase money of the trees so severed.
If the intention of Owen Phelim O’Conor was that he should receive the purchase money for his own benefit and if this result could only be achieved by a cutting in his lifetime under the common law power, I fail to see the ground for compelling a sale under the statutory power which would produce a result quite different. It is, I think, clear that the purchaser thought that he would get the trees in return for his money, but a contract is the concordant agreement of two minds not the opinion of one party alone. In my opinion the plaintiff who failed to make any inquiry as to the vendor’s title had constructive notice that the vendor was tenant for life unimpeachable for waste and he should have taken proper steps to protect his own interest.
Mogridge v. Clapp (1), was much relied upon in argument on behalf of the respondent. In that case a lease was made for the term of 99 years and it is clear that both parties intended a lease for that period. The lessor, a widower, instead of being owner in fee, as he thought, was only tenant by the curtesy in right of his deceased wife. It is not explicitly stated in the report but it seems too clear to be insisted upon that a widower could not, out of his life interest, grant a lease for 99 years. This case would be analogous if, in the present case, both parties intended that the trees should belong to the plaintiff after the death of Owen Phelim O’Conor; but such an intention would be contrary to the vendor receiving the purchase money as his own proper moneys.
Blake v. Marnell (2), dealt with a case in which a debtor charged lands with a lump sum payable in annual instalments. He had a life interest in the lands and also a power to charge under the settlement, and he died before the amount charged was paid off. It was plainly the intention to charge the lands to the amount specified, and as the charge created in terms by the deed was ineffective if limited to the life estate, the Court presumed that the charge was made under the power. It was also held that it was not possible to construe the terms of a deed by parol evidence as to intention. Lord Redesdale stated the principle as follows, at p. 39, note:””. . . where a person acts for valuable consideration, he is understood in equity, to engage with the person whom he deals with, to make the instrument as effectual as he has power to make it. . . . ”
Lord Redesdale speaks of making the instrument as effectual as he has power to make it. He was dealing with a deed which did, in terms, charge the lands to the full amount of the charge specified. This rule does not, in my opinion, mean that when it is clear what the parties or one of the parties mean, some other contract must be imputed to them in order to make the contract more beneficial to one of the parties. In the present case the intention of Owen Phelim O’Conor to have, as his own, the purchase money of the trees cannot be made effective by a sale under the Settled Land Act, and in my opinion there is no rule of equity which entitles the plaintiff to impute to him a different intention.
I have not thought it necessary to deal with the very elaborate arguments as to failure on the part of the tenant for life to give notice to the trustees of the settlement, or on the failure to pay the purchase money to the trustees for the purposes of the Settled Land Act, 1882.
In my opinion this appeal should be allowed and judgment should be entered for the appellant.
O’BYRNE J. :”
I concur with the judgment just read by Mr. Justice Murnaghan.
BLACK J. :”
I could state my conclusion in this case and the deciding reason for it in a paragraph. But, with doubt, I have decided that I ought to deal with the problem fully. I think the learned President’s reasoning and the elaborate and logical arguments of Mr. Monks, whether right or wrong, together with the authorities which he marshalled, call for specific examination. I have other reasons also.
First, I think that the equitable principle on which the learned President decided the case ought to be formally affirmed here as settled law; for, without such definite affirmation, the refusal of this Court to apply this principle in the facts of the present case might be taken as casting doubt on the principle itself. Next, I am unable to agree that the case can be decided upon any inference that the late O’Conor Don intended not to exercise his power under the Settled Land Act in making the agreements with which we are concerned. Lastly, as s. 54 of the Settled Land Act, 1882, expressly protects a purchaser dealing in good faith with a tenant for life, and as nobody has suggested that the respondent did not deal in perfect good faith with the late O’Conor Don, the important s. 54, in my view, demands examination, and if it is to be held not to protect the respondent’s transactions, I think some adequate reason should be given for arriving at that result.
The learned President construed the relevant agreements as licences from the then tenant for life to cut the trees in question, and sales of the trees when cut. I accept that construction. Since the then life tenant’s interest ended at his death, it follows that, at common law, the licence must terminate at his death and no property could pass to the licensee and purchaser under these agreements in respect of any trees not severed in the lifetime of the then tenant for life. But, if the agreements had been made, or can be treated as having been made, in the exercise of the powers conferred on a tenant for life under the Settled Land Act, 1882, then I think they would be valid and binding on the present tenant for life and all persons entitled in remainder. The agreements did not purport to have been made in the exercise of Settled Land Act powers, nor is there any evidence that the then tenant for life had any intention of exercising such powers or that the respondent here supposed that such powers were being exercised.
Notwithstanding the foregoing, the learned President said: “I hold that the three agreements must be referred to the vendor’s powers under the Act of 1882, for the reason that a vendor’s contracts must, in equity, be attributed to that power which will make them effective, because a court of equity must take him to have engaged with his purchaser to make contracts as effectual as he has power to make them.”
The equitable principle thus stated by the President in the very words of Lord Redesdale, as quoted by Christian L.J. in Pennefather’s Case (1), may, I think, be treated as axiomatic. Its applicability to the agreements in the present case is no doubt arguable, but surely not the principle itself.
It goes back 235 years to Thomlinson v. Dighton (2), and, as the report shows, was no novelty even then. It is restated in Blake v. Marnell (3), and by Lord St. Leonards in Sugden on Powers, 8th edn., p. 344. It is clearly expounded by the judges in Pennefather’s Case (1); by Porter M.R. in L’Estrange v. L’Estrange (4), and, more shortly, by Kekewich J. in Mogridge v. Clapp (5). We meet a very germane expression of it in Farwell on Powers, 3rd edn., p. 300, in these words: “where a man has both a power and an interest, and he creates an estate which will not have an effectual continuance in point of time if it be fed out of his interest, it shall take effect by force of the power.” In the present case the late O’Conor Don had an interest out of which to dispose of the trees as he did, if cut in his lifetime, and I think he had also a power under the Settled Land Act, 1882, to grant the licences and make the agreements for the sale of the trees when cut, even though not cut in his lifetime. But, since none of the trees were cut in his lifetime, the disposition he purported to make would not”have an effectual continuance in point of time if it be fed out of his interest.” Hence, the respondent submits that it must “take effect by force of the power.”
It was strongly urged against all this that the late O’Conor Don had no actual intention of exercising any power under the Settled Land Act, and Lord St. Leonards was quoted as saying that “it is the intention that in these cases governs.”So, too, Sir W. M. James V.C. in Garth v. Townsend (1),asked “Is there a distinct intention to execute the power?”These unquestionable dicta require explanation, and they have often been explained; but never more clearly than by Lord O’Hagan L.C. in Pennefather’s Case (2). Having quoted thesedicta, Lord O’Hagan said:””We have next to consider how such an intention can be so demonstrated? . . . It is not necessary, . . . that there should be a recital of the power or that the donee of it should consciously design to execute it, or even that he should be aware of the possession of it at the moment. If he intends to convey property or arrange it in such a mode as makes the exercise of the power an essential condition of its validity and effect, the presumption will be, that he did intend to execute it.” Applying the foregoing words to the present case, and assuming, as I think I should assume, in the absence of evidence to the contrary, that the late O’Conor Don was a reasonably honest man, I must infer that he intended to convey or pass the property”that is the licence to cut the trees and to take and keep them when cut”to the respondent; for he took most of the purchase money and contracted to be paid the rest of it, and, as the President has found, he meant to put all this money in his pocket. Such being his intention it made the exercise of the power, in Lord O’Hagan’s words, “an essential condition of its validity and effect”and hence “the presumption will be, that he did intend to execute it.” Nor, again in the words of Lord O’Hagan, does it affect the presumption that there was no recital of the power in the agreements, nor that the late O’Conor Don might not have consciously designed to execute it, nor even that he should have been aware of the possession of it at the moment.
The same doctrine was also stated by Sir John Romilly in Carver v. Richards (1). He said: “It is, I consider, the rule of this Court, that if the intention to pass the property subject to the power be clearly established, even though the intention to dispose of it under or by virtue of the power is not shewn, still that equity will give effect to the disposition, and hold that the property passes under the power.” No less lucid was the exposition of the same principle by Kekewich J. in Mogridge v. Clapp (2). His words were: “There is an old rule . . . that where you find an intention to effect a particular object, and there is nothing to exclude the intention to effect it by a power which is available, and there are no means of effecting it except by that power, then you conclude that the intention was to effect it by means of that power, because otherwise it would not be effected at all. That rule has been applied in a large number of reported cases . . . I think, therefore, that, notwithstanding the existence of the statutory power of leasing was not present to the minds of the parties . . . and really was absent from their minds, I must hold that there was in law an intention that this lease should operate under this Act”that is to say, there was an intention that it should operate . . . in the only way in which it could operate”that is, under the Act.”
In the present case I have felt bound to infer that the late O’Conor Don intended to pass the property in question to the respondent. The late O’Conor Don knew that he was only tenant for life and that he might die before the necessarily lengthy operation of cutting the trees was completed or even before it was begun. I think he must also have known well that the respondent would never have paid the large sum of money he did pay if it had ever dawned upon his mind that, if the vendor of the trees died before the cutting was completed or begun, he would not get all, or perhaps any, of the trees for which he had paid. Would the late O’Conor Don have allowed the respondent to make such a bargain without disclosing his limited ownership and the serious possibility mentioned, if he, the O’Conor Don, had thought there was such a possibility, and can he have had any other intention than that the respondent should get the trees for which the O’Conor Don took his money, whether they were cut in the O’Conor Don’s lifetime or not? My answer is “no,” unless I am to attribute to the late O’Conor Don a code of ethics to which normally honest men would not subscribe. The man is dead and cannot vindicate himself. I therefore think it right to give him credit for having honourably intended that the respondent should get the trees for which he had paid or bound himself to pay whether the O’Conor Don lived or died, in the absence of any evidence suggesting the slightest probability that he had not that honourable intention. Once that intention is inferred, then we are brought face to face with the rule rightly stated by the learned President, and enunciated by the above-quoted authorities and many others, whereby it is presumed that where the property intended to pass can only pass by virtue of a given power, it must be presumed to have been intended to pass by virtue of that power.
The aforesaid rule, however, like many other rules, is subject to exceptions, and the question then arises whether the facts of the present case bring it within any of these exceptions, or in other words, whether the learned President, being incontestably right in accepting the rule as to the equitable presumption, was right or wrong in treating that rule as applicable to the present case. As I understand the argument for the appellant, two exceptions to the rule, or reasons for not applying it and for not presuming that the agreements were made in execution of the Settled Land Act power, were relied upon. These were, first, that the late O’Conor Don intended not to exercise the power, and, second, that even if he intended to exercise the power and had said so expressly, the agreements in question could not have been validly made or enforced under that power. If either of these contentions is correct, the rule that the agreements must be presumed to have been made under the power does not apply; for equity does not make the presumption in question if the person who makes an agreement intended not to make it under the disputed power or if that power would not enable the agreement to be made or enforced even if the parties intended that it should be.
Now, the authorities I have quoted draw a clear distinction between the absence of an intention to exercise the power and an actual intention not to exercise it, and they emphasise that it is only an actual intention not to exercise the power that prevents the presumption being made that it was intended to be exercised, the mere absence of an intention to exercise the power having no effect upon the making of the presumption. In Pennefather’s Case (1), Lord O’Hagan said:””It is often, as was said in Carver v. Richards (2), ‘extremely difficult to distinguish or define the limits between an intention not to execute a power, and the case of no knowledge of the existence of the power; in which case, strictly speaking, there is no intention to execute it; while, in the former, there is an intention not to execute it.'”
In the present case it is contended that because the President found that the late tenant for life meant to put the money in his own pocket, this shows that he intended not to exercise the Settled Land Act power. In my opinion it is impossible to conclude that this finding shows any such intention. I do not think it even shows the absence of an intention to exercise the power, immaterial as such mere absence of intention would be, even if it did. Of course, it is not at all unlikely that when the late O’Conor Don made these agreements, neither the possibility of his own death nor the exercise of the Settled Land Act power was present to his mind at all. But, it is also possible that both these matters were present to his mind, together with the knowledge that the agreements would cease to be effective after his death, and that in order to keep the respondent safe in that eventuality, he meant the agreements to operate under the statutory power, believing, as the learned President of the High Court has held, that they could legally so operate. He may well have thought, as the President has also held, that he could take the purchase money in the first instance under the power subject to his estate being liable to the interested parties in the event of all or any part of that money becoming payable to them on his death before any or all of the trees were cut. To say that this hypothesis seems improbable could only be a guess; but if it is reasonably possible it cannot be ruled out by guesswork or without evidence, and I see none, to justify its rejection. Hence, whatever my suspicion might be, I see no justification for actually holding that the late O’Conor Don did not intend to exercise the statutory power when he made these agreements.
But if, contrary to what I have said, I could feel satisfied that he did not intend to exercise the statutory power in making these agreements, I should feel it utterly impossible to draw the further, quite distinct, and all important conclusion that he actually intended not to exercise the statutory power. My reason is this. I think it not only possible, but extremely probable, that when the O’Conor Don made these agreements he had not present to his mind at all the possibility of his death before all the trees were cut and taken away by the respondent, We must use our own knowledge of human nature in these problems. I think it is well known that people sometimes die intestate though in life they had a horror of such an eventnality. They have done so because, though well aware that anybody may die unexpectedly, being in good health and preoccupied with business or pleasure, the possibility was not present to their minds or operative in their calculations. And as it is with the making of wills so it is with the making of contracts and financial commitments. Quite provident people often put the possibility of death within a few years out of their minds and calculations, even though they are well aware of it. So in this case the late O’Conor Don when making these agreements may never have thought of death and, therefore may never have thought of his power under the Settled Land Act. Indeed, if I give him credit for being conscientious in his dealings with the respondent, which I think I should do, I should have to conclude that it was not only possible, but actually probable, that in making these agreements he never thought either of death or of the Settled Land Act. If at that time his power under the Settled Land Act was not present to his mind at all, then he could not have had an intention to exercise it, but equally he could not have had an intention not to exercise it. One cannot have an intention at any given time either to do a thing or not to do it, unless that thing is present to one’s mind at that particular time.
If I were to determine that the late O’Conor Don, at the material times, had his own death and his statutory power in mind at all, so as to make possible an actual intention not to exercise the power, I could only so determine by an arbitrary guess, which I think is not permissible; and, indeed, if it were, I should probably guess the other way. But, of legal evidence as to whether he intended to exercise the power or intended not to exercise, or had no intention either way in regard to it, in my opinion there is none. That being my view, the first of the two objections to the equitable presumption that he did intend to exercise the power, in my judgment, falls to the ground.
The second objection to the equitable presumption in question is that, as it was argued, the agreements could not have been made or enforced under the power even if it had been proved to have been the actual intention of the late O’Conor Don that they should be. This is said to be the case because there were, at the time, no trustees for the purposes of the Settled Land Act and because the purchase money would have been capital money arising under the Act, and the agreements required it to be paid, most of it in fact being paid, to the late tenant for life contrary to s. 22 of the Settled Land Act, 1882, which requires that it be paid to the trustees or else at the option of the tenant for life paid into Court. As to the first of these two reasons”the absence of trustees, Hughes v. Fanagan (1), was strongly relied on; but as a decision it does not help. All that it decided, or that it was necessary to decide, was that an agreement for a lease by a tenant for life under the Act did not bind the remaindermen when there were no trustees and the intending lessee knew that he was dealing with a tenant for life and knew that there were no trustees. As a decision, that case would only be in point by way of analogy if the present respondent had known that the late O’Conor Don was only tenant for life and that there were no trustees. There is no evidence that he knew either of these facts. But all the judgments in Hughes v. Fanagan (1), containeddicta quite irreconcilable with the judgments, and I think even with the decision in Mogridge v. Clapp (2), so strongly relied on by counsel for the respondent. Thus, Barry L.J. thought that the appointment of trustees, and even the service of notices upon them, as prescribed by s. 45 of the Act of 1882, are “part of the means whereby the inheritance is to be bound” and conditions precedent without the fulfilment of which the contract would not bind the remainderman. Porter M.R. and FitzGibbon L.J., while emphasising the intending lessee’s knowledge that there were no trustees, nevertheless used words of similar import to those of Barry L.J., without any express limitation to cases where there was actual knowledge of the omission to appoint trustees.
On the other hand, in Mogridge v. Clapp (2), the English Court of Appeal, unanimously affirming Kekewich J., held that a lease under the power in the Settled Land Act, 1882, was valid and bound all parties though there were no trustees, at least when the lessee did not know that there were no trustees. Further, Lindley L.J., at p. 395, and Kay L.J., at p. 401, both said that the lease would still bind the remainderman even if the lessee had taken it knowing that there were no trustees. Bowen L.J. concurred. It was also held, in the words of Kay L.J., that “a lessee has only constructive notice of the lessor’s title, and the non-existence of trustees is not . . . a defect of the title of the tenant for life or of his power to grant the lease.”
In Hood and Challis’ Conveyancing Acts, 7th edn., p. 224, it is noted that Mogridge v. Clapp (2), was a case of a lease; but the authors suggest that in a case of a sale “the principle would be the same.” This view is supported by Lindley L.J. in Mogridge v. Clapp (2). He said that the Marquis of Ailesbury’s Case(1), went far to show “that the title would be good even if there were no trustees and the purchaser or lessee knew, in fact, that such was the case.” His use of the word “purchaser” shows that his opinion applied to a sale as well as to a lease. In Hatten v. Russell (2), Kay J. applied a like opinion to a case of a sale”at least where the purchaser was unaware that there were no trustees. Again, in In re Fisher and Grazebrook’s Contract (3), Romer J. said: “I quite agree that if the purchaser in this case, supposing there had been trustees and in ignorance of the fact that there were no trustees, had paid his money into Court, he would have got a good title.”
However, I think it is unnecessary to express any opinion on this point in the present case; because the failure to appoint trustees appears to be overshadowed by the mistake of the respondent in agreeing to pay the money to the tenant for life. This mistake, if the money were capital money arising under the Act, was a non-compliance with s. 22 of the Settled Land Act, 1882, which prescribes that such money shall be paid either to the trustees or into Court at the election of the tenant for life. If that mistake does not invalidate the agreements, I cannot imagine that the non-appointment of trustees alone would do so. Conversely, if the mistake about the payment of the money does invalidate the agreements it is unnecessary to trouble about the nonexistence of trustees.
The appellant’s contention that the agreements could not be presumed to have been made under the Settled Land Act power because the purchase money was agreed to be paid and most of it was paid to the tenant for life in contravention of s. 22 of the Act was rejected by the learned President on the ground, I think, that no part of this money was capital money arising under the Act, and that s. 22 was, therefore, inapplicable. He held that in the events that have happened the whole of the money would be payable to the appellant as the present tenant for life. On this point there is one case worthy of notice” Lowndes v.Norton (4). In that case there were two successive tenants for life, the first impeachable for waste and the second not. The first of these tenants cut down a great number of trees. In so doing she was a wrongdoer. In an injunction proceeding, the proceeds of the trees thus wrongfully cut were ordered to be paid into Court. On the wrongdoer’s death, the next tenant for life, being unimpeachable for waste, claimed the money in Court, on the ground that the trees, if they had not been wrongfully cut, would have come to him to do what he liked with them, and that, therefore, he was entitled to the money realised by their wrongful sale. Hall V.C. upheld his contention.
In that case the second tenant for life, being unimpeachable for waste, would have been entitled to cut and sell the trees if they had not been wrongfully cut by his predecessor. His right to the trees was never divested, since the wrongful act of his predecessor could not divest him of it, though its exercise had been rendered impossible. Hence, as his right had never been taken away, he was held entitled to the money, since it represented the proceeds of the sale of his own property.
In the present case the respondent contends that notwithstanding the death of the tenant for life he is entitled to cut and sell the trees specified in the agreements. If the agreements gave him that right, then it seems to me they must have thereby divested the succeeding and present tenant for life of the right to cut and dispose of the trees, which, being unimpeachable for waste, he would otherwise have had during his lifetime; and if the agreements divested the present tenant for life of all future right to cut and sell the trees he cannot have any equitable right to the price of the trees such as, on the authority of Lowndes v. Norton (1), he would have had if the trees had been wrongfully cut by someone having no legal right to cut them. In other words, if the agreements put an end to the appellant’s right to the trees he cannot have any right to the price of the trees, having lost his right to the trees themselves. The learned President, however, said: “If in the events that have happened I attribute the agreements to the vendor’s statutory powers, the defendant (that is the appellant) will be absolutely entitled to the moneys representing the purchase price of the timber from any trees, the subject of the agreements, felled since the vendor’s death.” Mr. Justice Murnaghan has rejected this view, saying that he can find no authority for it. In this regard I find myself in agreement with Mr. Justice Murnaghan, not because there is no authority for the view he rejects, for neither is there any direct authority for the opposite view; but because the clear and precise ground on which Lowndes v. Norton (1) was decided appears to me the only possible ground on which it could have been decided, and its complete inapplicability to the facts of the present case seems to me to render Lowndes v. Norton (1) an indirect authority against the view that the appellant has any possible claim to the price paid, or agreed to be paid, by the respondent to the late tenant for life.
I, therefore, cannot agree that if the agreements in this case are treated as made under the Settled Land Act power, the money in question can be anything else but capital money arising under the Act. Its payment, and the agreements to pay it, to the late tenant for life were, therefore, in direct contravention of s. 22 of the Act of 1882. Is the effect of that to render the whole transaction void unless there is some special dispensation in the statute which prevents that result? On this point one may consider another requirement of the Act by way of analogy. Thus, in Mogridge v. Clapp (2)”the very case most relied on by the respondent”Kay L.J. referred to the requirement in s. 7, sub-s. 2, that every lease shall reserve the best rent, and said that there was no provision in the Act that the lease should be void if the best rent was not reserved, but that “following the analogy of leases under powers in a settlement, that would probably be the case.” Now, it seems to me that the requirement in s. 22, sub-s. 1, is quite as important as the requirement in s. 7, sub-s. 2, and that if a contravention of the latter would make the transaction void, so would a contravention of the former. I think also that a tenant for life selling under the power and contracting to have the purchase money paid to himself in contravention of s. 22, sub-s. 1, would be guilty of a breach of trust, since he is made a trustee for all parties interested by s. 53, and I do not feel able to dissent from the view that if the purchaser made himself a party to such a contract, it could not be enforced against the parties entitled in remainder, unless the purchaser could invoke some dispensing provision in the Act. There is, however, such a dispensing provision in s. 54. It provides that “. . . a purchaser . . . dealing in good faith with a tenant for life shall, as against all parties entitled under the settlement, be conclusively taken to have given the best price . . . and to have complied with all the requisitions of this Act.” In Mogridge v. Clapp (2), Kay L.J. stressed these last words and had them placed in inverted commas in the report. The words are “and to have complied with all the requisitions of this Act.” Clearly the requirements in s. 22, sub-s. 1, as to payment of capital money is one of these requisitions.
Hence, by s. 54 a purchaser dealing in good faith with a tenant for life must be conclusively taken to have complied with s. 22, even though he has not done so in fact. Good faith, then, is the test.
I imagine there is no more serious requisition in the Act than that in s. 4, sub-s. 1, that every sale shall be made at the best price that can reasonably be obtained. Yet, in Hurrell v. Littlejohn (1), there was a sale of property by a tenant for life for £2,000 and the very next day the purchaser resold it for £3,000. But the Court refused to set aside the sale on the ground that there was no evidence that the purchaser had acted otherwise than in good faith within the meaning of s. 54. So, in In re Handman and Wilcox’s Contract (2), Buckley J. held a lease bad, not because it did not comply with the statutory requirement as regards rent, which alone would not have been sufficient, but because of that fact, together with the further fact that the lessee did not act in good faith within s. 54.
Sect. 54 would have no meaning or effect at all if it did not protect transactions which otherwise would be invalid or unenforceable where the purchaser or other person in question had dealt in good faith with the tenant for life. It is implicit in the section that a person may fail to comply with any of the requirements of the Act and yet do so in good faith. Otherwise s. 54 could never give any protection at all when a purchaser, lessee, or mortgagee had failed to comply with the requirements of the Act. Failure to comply with a requisition of the Act is a mistake and a serious mistake, and the section plainly contemplates that such a mistake may be made in good faith. A mistake must be either of fact or of law. The protection of s. 54 must extend to either or to both. It can hardly be doubted that it extends at least to a bona fide mistake of fact, such as a mistake honestly made as to the best price. Possibly such a mistake was made in Hurrell v. Littlejohn (1), and Joyce J. held that s. 54 protected the purchaser.
But, s. 54 gives no indication that its protection only extends to mistakes of fact, and it would seem as possible to make a mistake of law in good faith as to make a bona fide mistake of fact. In Chandler v. Bradley (3), Stirling J.” a very experienced Chancery Judge”suggested as a possible instance of mistake which s. 54 might protect, the case of abona fide mistake “as to the proper mode of paying” a fine agreed on for a lease by a tenant for life. In that case, Stirling J. held that the payment was not really a fine but a bribe to be kept by the tenant for life for himself, with the result that the rent reserved was not the best rent, which rendered it void as being in contravention of s. 7, sub-s. 2. The reason that s. 54 gave no protection was that the lessee who knew his payment was a bribe did not deal with the tenant for life in good faith. But, if Stirling J. was right in suggesting that s. 54 might protect the lessee if he paid a genuine fine, but made some bona fide mistake “as to the proper mode of paying it,” this could protect against abona fide mistake of law; for a mistake in the mode of paying a fine suggests a mistake of law rather than a mistake of fact. If the present respondent had given evidence, for instance, that he knew or even suspected that the late O’Conor Don was only tenant for life, and that he knew the requirements of s. 22, sub-s. 1, but that by a bona fide mistake he misconstrued it, and thought that payment by him to the tenant for life, who is made a trustee for all parties by s. 53, was equivalent to payment to the trustees for the purposes of the Act, it may be that he could have invoked the protection of s. 54. Similarly, if he gave evidence that, like the President of the High Court himself, he acted in the belief that s. 22, sub-s. 1 did not apply to the money in question, it may be that s. 54 would protect the transaction from being invalidated. In the circumstances I do not think it is necessary to express any opinion on this point; for the respondent tendered no legal evidence at all as to why he made the mistake of paying or agreeing to pay the money to the tenant for life.
It seems to me that if a purchaser seeks to uphold an agreement which contravenes a serious requirement of the Act, which may gravely damnify innocent persons entitled in remainder, and for that purpose invokes the great favour given by s. 54 on condition that he dealt in good faith, the onus must be cast upon him to show by clear evidence that he did deal in good faith. In the present case no legal evidence was given on the point at all. But the respondent, through his counsel, made the case that he dealt with the late O’Conor Don, believing him to be the absolute owner, and not a mere tenant for life. That was the mistake, and the only mistake, on which he sought to rely; and although this was not proved in sworn evidence, I see no reason to doubt that he was absolutely truthful in instructing his counsel to make that case for him. If it were a mistake which would enable him to invoke the protection of s. 54, I think that it should have been stated in sworn evidence. But I take the view that it is not a mistake in respect of which he can claim protection under s. 54. I do not forget, and have very much in mind, all that was said about constructive notice in Bailey v. Barnes (1); in Kettlewell v.Watson (2); by Lord Cranworth in his classic pronouncement in Ware v. Lord Egmont (3), and particularly by Lindley L.J. in Mogridge v. Clapp (4). But all this does not get rid of the fact that the respondent must be deemed to have had notice of the late O’Conor Don’s title. In the very case of Mogridge v. Clapp (5) itself, Kay L.J. said that the lessee had notice”that is constructive notice”of the lessor’s title, and Kekewich J. said that he must be taken to have known that the lessor there “could only make the lease as tenant by the curtesy”that is by virtue of the Settled Land Act.” So, here, I think the respondent must be deemed to have had notice, though I do not suggest that he had it in fact, that the late O’Conor Don could only make the agreements in question as tenant for life”that is by virtue of the Settled Land Act. Now, if he must be deemed to have had that notice in law, he must be treated as if he had it in actual fact, and cannot be heard to say that he had not that notice. If he purported to make that case, in evidence, it would have to be ignored, and it must, therefore, be ignoreda fortiori when he makes it merely through the argument of his counsel. Yet, it is only by seeking to make that case that he could show that he dealt in good faith with the late tenant for life. Nobody has even suggested that he did not, in fact, deal in perfect good faith with the late O’Conor Don. It is, therefore, unfortunate for him that the legal doctrine which imputes to him the knowledge that the late O’Conor Don was only tenant for life, even though he did not in fact possess that knowledge, deprives him of the only means by which, on his own case, he could prove that he dealt in good faith so as to obtain the protection of s. 54.
As I must, therefore, conclude that the respondent cannot invoke the protection of s. 54, and as I have already concluded, though for the reasons I have stated only, that the other grounds on which his case was based must fail, I am unable to dissent from the net decision of the Court that the appellant must succeed in this appeal.
In re Fayle and The Irish Feather Co.’s Contract
[1918] 52 I.L.T.R 62
O’Connor M.R.
O’Connor, M.R.
The purchaser in this case objects to the title on the ground that the mortgagees of the property, from whom the vendor purchased, only took under the mortgage deed an estate for the lives and life of the persons constituting the firm of Meldon & Co., and the survivor of them, because the habendum limited the uses to Meldon & Co., successors and assigns, without the introduction of the word “heirs”; that this limitation exhausted the uses, and subject thereto the use of the estate in fee resulted to Goff the mortgagee, in fee farm, and subject to his mortgage to Macken the mortgagor. Before the Statute of Uses, the proper form of a conveyance in fee simple was a grant to the grantee and his heirs, and this gave the grantee the legal estate in fee simple. But if, owing to the absence of consideration or any other circumstance tending to show that the grantor, though he conveyed the legal estate, did not intend to part with the beneficial interest in the lands, Courts of Equity declared that he held the lands upon trust for the grantor or his heirs, and that although the grantee had the legal estate, the use thereof was still in the grantor. The next *63 step in the history of matter was the enactment of the Statute of Uses, which provided that the persons to whose use the land was granted should have the legal estate. The Statute did not touch the jurisdiction of the Court of Chancery, and it was still in the power of that Court, when by reason of no use being declared it was to be inferred from the absence of consideration or otherwise that it was not the intention of the grantor to part with the use, to give it back to him. There was what was called a resulting use, and, as under the Statute of Uses, the legal estate followed the use, the effect was to bring it back to the grantor. From this it appears that the resulting use depends for its operation on intention, because the interference of the Court of Chancery was based on a desire to prevent an unconscionable reliance on strict legal rights. Counsel for the vendor referred to some passages in Sanders on Uses, where (5th ed., p. 102) the author says that “It is the intention of the parties, to be collected from the face of the deed, that gives effect to resulting uses. Therefore, it has been said that the payment of 5s. or the like serves as an implied declaration of the use to the feoffee, when it is not otherwise expressly disposed of. On the contrary, the want both of consideration and declaration shows that the feoffor never intended to part with the use. This has been the construction when no part of the use has been expressly limited. But the same rule does not hold, as I have already stated, when any part of the use is limited to the feoffor, &c., and the residue left undisposed of; for the express declaration in this case is presumptive proof that he did not mean that the grantee should have the remainder of the use. Therefore, if an estate be granted even for a valuable consideration to the feoffees and their heirs to the use of them for their lives, it should seem that the remainder of the use will result to the grantor, for the extent of the express limitation is the measure of the consideration. But when in a conveyance to the purchaser, the contract is recited to be for the purchase of the absolute fee simple, the consideration extends to the entire use; so that, I conceive, there can, in that case, be no resulting use to the grantor or vendor. The payment of the consideration money divests him of any beneficial interest which constituted the use before the statute; and if any part of the use were to remain unlimited it would vest, as it should seem, in the purchaser upon the principle of modern trusts resulting or arising by implication.” It is plain, therefore, that the resulting use depends upon intention, that intention to be affirmed or negatived by the conveyance. What was the intention in the present case? Clearly to give the mortgagees the whole estate then vested in the mortgagor and the other mortgagee who postponed his charge. The conveyance was, in the first place, made to the mortgagees and their heirs, which would be sufficient to carry the fee. The use limited by the habendum did not exhaust the fee, but to hold that the fee resulted would be contrary to the manifest intention of the deed. The passage from Sanders shows that the intention that the fee should result may be gathered from the limitation by way of use of a particular estate only, but such indication of intention may be rebutted by other circumstances, as I think it is in this case. In Preston on Conveyancing (3rd ed.), Vol. I., p. 194, there is the following passage:—“To the clause prescribing the mode of suffering the recovery, there is generally added a declaration of the uses of the recovery. This declaration should be in the form of an appendix, or to that effect, mutatis mutandis. It seldom happens that a declaration of this nature is omitted. When omitted, the use will result, unless from the consideration paid by the demandant, or from some other circumstance, the beneficial ownership is evidently to remain with him.” This also is authority for the view that the resulting use depends on intention. I accordingly hold that the conveyance passed the fee, and overrule the objection of the purchaser.
[1919]
1 I.R. In re Murphy and Griffin’s Contract.
[1919] IR 192
Powell J.
Two questions were argued before me on this summons, first, as to whether the vendor had shown a sufficiently good title, and secondly, whether, in all the circumstances, proceedings under the Vendor and Purchaser Act were appropriate. I shall deal with these matters separately.
Mr. Wilson K.C., who appeared for the vendor contended that it is now well-settled law that the equitable estate in fee will pass under a deed without words of limitation if a sufficient indication be found on the face of the deed that an estate in fee simple was intended to pass; and he says that there is a sufficient indication of such an intention on the face of the deed poll of the 27th October, 1909, and that the freehold interest in Bettyville passed in equity notwithstanding the absence of words of limitation.
Mr. Devitt (who appeared for the purchaser) disputed Mr. Wilson’s proposition, and also contended that there was no sufficient indication to be found on the face of the deed that an estate in fee simple should pass. Mr. Wilson cited several authorities in support of his legal proposition with which I shall now deal. He said that the foundation of the principle is to be found in the case of Pugh v. Drew (1). The head-note of that case states that if the intention of a deed be clear to pass an equitable estate in fee simple, it is not necessary that words of inheritance should be used for the purpose. By the deed of settlement certain leaseholds were settled as to one-third share thereof in trust, in the events which happened, for A and B absolutely in equal shares. In 1819 certain freeholds were settled “upon such and the same trusts and for such and the same ends, intents, and purposes and subject to such and the same powers, provisoes, and declarations as in the first-mentioned indenture were expressed, declared, and contained of and concerning the premises, or as near thereto as the difference of the respective estates of the trustees and their respective heirs, &c., would admit, to the intent that the rents issues, and profits of the hereditaments and premises in question might be had received and taken and held, sold, conveyed and assigned in such manner and at such times as in the said first indenture was expressed and declared concerning the premises therein particularly mentioned and described”; and it was held that want of proper words of inheritance was not fatal, and that A and B took equitable estates in fee simple and not for life only in one-third share of the freeholds.
It may not be out of place to refer to the argument of counsel for the plaintiff in the case under review. Mr. Fry (afterwards Lord Justice Fry), in support of his argument that the want of proper words of inheritance was not fatal quoted the dictum of Lord Hobart: “I do exceedingly commend the Judges that are curious and almost subtle [astuti] to invent reasons and means to make acts according to the just intent of the parties and to avoid all injury which by rigid rules, might be wrought out of the Act.” Vice-Chancellor James in giving judgment for the plaintiffs said: “Some cases were cited to the effect that a conveyance to A and his heirs in trust for B only gives B a life estate, but Mr. Simpson was obliged to go further and to maintain that the want of words of inheritance is absolutely fatal under all circumstances. There is no doctrine of this Court which compels me to maintain such nonsense.” This is a somewhat severe criticism of Mr. Simpson’s argument and I do not intend to follow the learned Judge to the extent of applying the same criticism to Mr. Devitt, who argued this case with great ability, and in my opinion left no point uncovered. It is, I think, plain from the report of this case that the learned Vice-Chancellor found the intention of the deed in question to pass an equitable estate in fee simple without words of inheritance in the circumstance that there was a deed settling leasehold in trust for Aand B, their executors, administrators, and assigns, and freeholds upon the same trusts or as near thereto as the circumstances of the case would admit.
Undoubtedly, subsequent to the decision in Pugh v. Drew (1)there was a conflict of authority on the question as to whether an equitable estate in fee simple may be limited without the use of technical words, even when it appears that it was the intention of the grantor to dispose of the whole estate; that the conveyance or declaration of trust of an equitable estate was subject to the same rule as a conveyance of a legal estate, and that the absence of proper words of limitation could not be cured by ascertaining the intention of the grantor. Vice-Chancellor Chatterton in Meyler v. Meyler (2), and Kenny J. in Bennett’s Estate (3) so decided; but I think that Mr. Wilson has established that first in England and later on in this country the current of later authorities has flowed in an opposite direction to quote an expression of the present Master of the Rolls in a case to which I shall refer later.
In In re Tringham’s Trusts (4), the head-note is as follows:”A limitation in a deed, of a trust of real estate for A., without any words of inheritance, may confer the equitable fee upon him where the intention to do so is expressed or sufficiently shown upon the face of the instrument. By surrender and a settlement dated in 1831, copyhold hereditaments were limited in trust for M. for life, and after her death for her husband, and after the death of the survivor in trust for the children of the marriage equally as tenants in common, and in default of issue then to such uses as M. should declare by her will, with remainder to the right heirs of M. There were three children of the marriage. Held, that there being upon the face of the instrument sufficient indication of intention on the part of the settlor that absolute interests should be given, the three children, notwithstanding the absence of any limitation to their heirs, were entitled as tenants in common in equal shares for equitable estates in customary fee simple.”
Mr. Justice Joyce in his judgment refers to Mr. Butler’s note to Coke upon Littleton, which says:”A mere declaration of trust in favour of another has been held sufficient to transfer to him the equitable fee.” The learned Judge also refers to the statement of Mr. Hayes in the 5th ed., vol. i, of his Introduction to Conveyancing, in which he said: “Trusts, like uses before the statute pursued the course of succession appointed for legal interests of a corresponding description. They were expounded, too, by analogy to the rules of legal construction. But those rules did not always govern in equity with absolute sway. The rule for example which required the word ‘heirs’ to pass the fee in a conveyance at common law although it was extended to uses within the statute, was not rigidly applied to trusts. If land was limited in trust for A, without more, Equity, in conformity to the rule of Law, gave to A the beneficial interest for life only; but if it could be collected from the instrument that A was meant to have the absolute interest, Equity, esteeming the intention more than the rule, gave him the beneficial fee without the aid of the word ‘heirs.'” He also refers to Lewin on Trusts, 10th ed., p. 117, where he says the rule is thus stated:”In creating a trust, a person need only make his meaning clear as to the interest he intends to give, without regarding the technical terms of the common law in the limitation of legal estates. An equitable fee may be created without the word ‘heirs,’ and an equitable entail without the words ‘heirs of the body,’ provided words be used which, though not technical, are yet popularly equivalent, or the intention otherwise sufficiently appears upon the face of the instrument.”The learned Judge then deals with certain authorities which he points out had been cited in the argument before Vice-Chancellor James in the case of Pugh v. Drew (1), and says that the Vice-Chancellor ridiculed the proposition that the want of words of limitation was absolutely fatal in all circumstances. He says that he looked up and referred to the order itself in that case, which shows that the fund in Court representing the proceeds of the freeholds was paid out and distributed upon the footing that A and B were absolutely entitled. Mr. Justice Joyce then referred to the case of In re Whiston’s Settlement (1) where the limitation in a settlement was “in trust for such child or children of the settlor as being a son or sons shall attain the age of twenty-one years or being a daughter or daughters shall attain the age of twenty-one years, or be married under that age, which shall first happen, the same to be if only one such child, paid, assigned or transferred unto him or her solely, or if two or more such entitled children, then to be paid, assigned, or transferred in equal shares as tenants in common,” in which case Mr. Justice Chitty, having examined the instrument and finding no expression of a sufficient indication of intention on the part of the author of the instrument that absolute interests should be given, considered that he had merely to deal with and construe the limitation to children as tenants in common. Mr. Justice Joyce said that this decision had not been universally approved of, and that it had been thought by some that if the Court had been astute to find in that case sufficient indication of intention to confer absolute interests upon the children, it might have succeeded in doing so. He then says:”The result is, that where an intention to confer more than a life estate is not expressed or sufficiently shown upon the face of the instrument, then, in a deed, a simple trust of real estate to A without any mention of the heirs does not give more than a life estate. No case, however, had been cited where such a limitation of a trust has not been held to confer the equitable fee where the intention to do so was expressed or sufficiently shown upon the face of the instrument”;and he goes on to say: ” Pugh v. Drew (2) is a distinct authority that in a deed a limitation of a trust, the plain intention of which is to confer an equitable fee can have that effect without the use of the word ‘heirs.'” The concluding passage of his judgment is:”I may add, that if I could not have seen my way thus to determine as a matter of construction of the deed, then, having regard to [two cases to which he referred], I should have had most seriously to consider whether I ought not to rectify the declaration of trust in this case by the insertion of the word ‘heirs’ where it is supposed to be required.”
In In re Oliver’s Settlement (1), a case in which this question arose, Mr. Justice Farwell said:”The law upon this point has been very recently stated by Mr. Justice Joyce in In re Tringham’s Trusts (2), and I need not therefore, state it again.” His Lordship read the first paragraph of the head-note of that case, and proceeded:”I adopt that as a correct statement of the law, and all I have to consider is whether in the case before me there is sufficient to show an intention that the children should take the fee. I think there is. The trustees are directed to convey the trust estate to the children, and that naturally means all the estate they had.”
In In re Houston (3), by all indenture of settlement of the 3rd July, 1897, certain lands were conveyed to trustees to hold in trust for persons named as tenants in common. There were no words of limitation of the respective estates to the persons named; and Mr. Justice Wylie refused to follow Meyler v.Meyler (4), having regard to subsequent authorities, and held that the Court was at liberty to look at the intention of the settlor as evidenced by the whole deed, and that there being a sufficient indication of intention, the persons named were entitled to equitable estates in fee simple.
In In re Ottley’s Estate (5) the same learned Judge held that sect. 45 of the Fines and Recoveries (Ireland) Act (4 & 5 Wm. 4, c. 92), sect. 47 of 3 & 4 Wm. 4 c. 74, while prohibiting any Court from transforming by the application of any equitable doctrine a deed which according to its legal construction is ineffective to bar an entail into a valid disentailing assurance, does not take away the general jurisdiction of a Court of Equity to rectify a disentailing deed so as to bring its provisions into conformity with the actual intention of the parties; that, having regard to the terms of the deed in question (in the case before the learned Judge), the words “in fee” were capable of being and should be construed as meaning “in fee simple”; and accordingly that under sect. 51 of the Conveyancing Act of 1881 the deed was effectual to pass an estate in fee simple.
Two cases of great weight on this point were decided in the year 1915, one of them in England and the other in Ireland. Nutt’s Settlement (1) was argued on the 21st and 22nd July, 1915, and the judgment, I take it, was given shortly afterwards. In the same month the Master of the Rolls in Ireland delivered a judgment in the case of Cross’s Trusts (2). The Master of the Rolls was not, of course, aware of the judgment of Mr. Justice Neville in Nutt’s Settlement (1), because the case was not then reported; but in each of these cases the learned Judge who delivered judgment reviewed practically all the authorities, and came to the same conclusion. On referring to the report in Nutt’s Settlement (1) it will be found that practically all the cases referred to by Mr. Devitt were referred to by counsel in the argument or by the learned Judge in his judgment. By a settlement land was assured to the trustees and their heirs upon certain trusts during the life of A. B., and after her death to the use of her children as she should by deed appoint. By a deed poll A. B. appointed that the trustees should after her death hold the trust funds and property in trust for her four sons in equal shares, without words of limitation. At the date of the appointment some of the lands had been sold and the property consisted partly of land and partly of money, subject to a trust for investment in land. Held, 1, that the appointees took equitable and not legal estates; and, 2, that although the gift by deed of an equitable estate in land without words of limitation passes only a life estate, the fee may pass if there is to be found in the construction of the deed as a whole an intention that it should pass, and that such an intention is shown by the fact that a gift of land is coupled with a gift of money, subject to a trust for investment in land which would pass absolutely without words of limitation. Dearbergv. Letchford (3), a case strongly relied upon by Mr. Devitt, was not followed. Mr. Justice Neville says in his judgment:”It seems to me, if I can find out what the effect of the appointment would have upon the part of the property mentioned, I have some guide by which I might ascertain what was intended with regard to the rest, because the trust fund and property are treated as one and the same, and devoted, as it seems to me, to the same destination. First, with regard to the moneys or funds which represent the sale of the real estate. With one exception I can find no authority in which it has been held that in order to pass an absolute interest in moneywhether it is the proceeds of sale of real estate or not, whether it is devoted to the repurchase of real estate or notwhere there is a life interest words of limitation are necessary. I should be very loth to carry the doctrine of notional conversion in equity to such an extreme length. It is said, and I think truly, that Dearberg v. Letchford (1) is an authority to that effect.” Later on he says: “It seems to me when one has arrived at the conclusion with regard to the money considerable light is thrown on the proper construction to be put upon the whole appointment.” He then says that the outcome of the cases bearing upon the point, in his opinion, is this: “With regard to the granting of equitable estates, a grant of land upon trust for A passes to A if there is nothing more, only a life estate; but words of limitation with regard to an equitable estate are not indispensable, because I think that what estate is given to a beneficiary depends upon the construction of the document purporting to give him the benefit, and must be determined by the whole of the deed or document which has to be interpreted. I think, therefore that if you can find in the documents themselves, or in the document itself that you have to examine, a sufficient indication of a desire to pass, not a life estate, but an equitable estate in fee, that intention must prevail.” He then deals with the decision of Buckley J. in In re Irwin (2), in which he says that the learned Judge “appears at first sight to have come to an opposite conclusion”; but he says: “I am not at all sure that he did in principle . . . I am not convinced that he [Mr. Justice Buckley] did not think that in the case before him there was no sufficient indication of intention contained in the deed to enable him to say that, in spite of the absence of words of limitation, it was intended that the equitable fee should pass. However that may be, that case has been since considered and distinguished on the ground that there the question was what estate the trustee took, and not what estate was given to the beneficiary. Speaking for myself, I think it undesirable to raise a distinction between the two cases. I think that in the construction of deeds dealing with equitable estates, the Court should put such a construction upon the covenant or grant as may be consistent with the intention expressed in the whole deed. When I come to this deed I think I should be deliberately hiding from myself the intention of the appointor if I did not take into consideration the context to the gift of the land. The land is of course, more popularly described as property than as trust funds, and we may assume that the word ‘property’ was intended to deal with the land; but it is clear to my mind, that the appointor desired a full and complete interest, both in the trust fund and in the property, to pass in equal shares to the sons she has named. It would be doing injustice to the words used if one were to read those words as meaning the trust funds are to go in equal shares amongst her sons, but the property is only to go to them as tenants in common for life. I do not think anybody fairly reading this document could come to the conclusion that that was the intention of the appointor. I am of opinion, therefore, that the named sons take both the trust funds and the unsold real estate in equal shares absolutely.”
In the case of Cross’s Trusts (1) the head-note is “A limitation in a deed of an equitable estate without words of limitation may confer an equitable fee where the intention to do so appears from the deed.” The Master of the Rolls held that there was sufficient evidence on the face of the instrument in question to show that it was the intention of the settlor to dispose of his whole estate, and that the younger children, notwithstanding the absence of words of inheritance in the limitation to them in default of appointment, took an equitable estate in fee simple as tenants in common in equal shares in the lands. He followed the decision in In re Tringham’s Trusts (1); In re Houston (2);and In re Stinson’s Estate (3); but refused to follow Meyler v.Meyler (4) and Bennett’s Estate (5). He reviewed the law as laid down in all the authorities, and referred to the case of In re Thursby’s Settlement (6), much relied upon by Mr. Devitt, in which Mr. Justice Farwell (who, as a Judge of the Chancery Division, had decided In re Oliver’s Settlement (7), to which I have already referred), when he was sitting in the Court of Appeal, said that he never decided, and did not think that an appointment of equitable interests in land to A, or to a class, without words of limitation, could carry more than a life interest to the appointee, but the Master of the Rolls points out that the learned Lord Justice said, “It is not absolutely necessary to have the technical words as in the case of legal estates in land, but there must be circumstances, such as Joyce J. found in In re Tringham’s Trusts (1), and I found in In re Oliver’s Settlement Z(7), to show an intention that the fee should pass.”There is, therefore, says the Master of the Bolls, no uncertainty about the law as laid down by the English Courts. He says he would consider himself bound by the judgments in Meyler v.Meyler (4) and Bennett’s Estate (5) were it not that the English decisions have been recently followed in this country, and he refers to the case of In re Houston (2), and to the decision of Mr. Justice Wylie, and to a judgment of Mr. Justice Ross in In re Stinson’s Estate (3), and says he has therefore to determine whether the conveyance sufficiently indicates an intention to dispose of the entire equitable estate in fee, and he says:”On the whole deed I am convinced that it was the intention to dispose of the whole estate”; and he then declared that the plaintiff and the defendant took an equitable estate in fee simple as tenants in common in equal shares in the lands settled by the deed.
Mr. Devitt, in support of his contention, relied upon Meyler v.Meyler (4), Whiston’s Settlement (8), Dearberg v. Letchford (9),
In re Irwin (1), Thursby’s Settlement (2), and Monckton’s Settlement (3); all of which are referred to in the cases that have been cited, and it is, therefore, not necessary for me to deal further with them.
On the authorities, I must hold in favour of Mr. Wilson’s contention that the equitable estate in fee will pass under a deed without words of limitation if a sufficient indication be found on the face of the deed that an estate in fee simple should pass. Is there a sufficient indication of intention to be found in the deed poll of the 27th October, 1909, that an estate in fee simple should pass? I think there is. The appointment admittedly passed £2000 Government Stock and a £3500 mortgage, and the two chattel interests in Bettyville absolutely, and I think it would be doing an injustice to the words used if one were to read these words as meaning that the Government Stock, mortgage, and the chattel interests were to go to William Agnew Murphy absolutely, but that the lands were only to go to him for life. I do not think anybody fairly rending this document would come to the conclusion that that was the intention of the appointor. Moreover, that intention is, I think, to be gathered from the words “to the intent that William Agnew Murphy shall be forthwith entitled to call for a transfer into his name of the said sum of £2000 Government Stock, and for an assignment to him of the said mortgage for £3500 and the securities for the same, and the said lands and premises described in the third part of the schedule hereto.”
Mr. Devitt drew attention to the fact that the word used in that connexion is “assignment” and not “conveyance”; but it will be observed that in the case of In re Irwin (4), already referred to, and upon the decision in which Mr. Devitt so strongly relied, Mr. Justice Buckley says:”I do not seek to attribute any importance to the verb ‘assign.’ The deed does not say ‘grant’ or ‘convey’ or ‘assure,’ which would be proper verbs to use, no doubt, but says ‘assign.’ If it had said ‘assign to trustees and their heirs,’ I have no doubt the words would be sufficient to pass the fee simple, so that, as far as the word ‘assignment’ is concerned, I do not think that the use of that word, instead of ‘conveyance’ or ‘assurance,’ per se is sufficient to prevent me from finding a sufficient indication of a desire to pass not a life estate, but an equitable estate in fee.”
But Mr. Devitt further contends that proceedings under the Vendor and Purchaser Act are misconceived, and that an action for a declaration of title is the appropriate remedy, and he relies on In re Nichol’s and Von Joel’s Contract (1). In that case a question of construction involving real difficulty came to be determined upon an originating summons under this Act. Mr. Justice Neville held that the title was too doubtful to force upon a purchaser, and offered to adjourn the case to enable the vendors to take out an originating summons. The vendor declined, and on the appeal the Court made the same offer, which was accepted. Upon the originating summons the question of construction was decided in favour of the vendors, and on the adjourned hearing of the appeal it was declared that the vendors had shown good title, and the order of Mr. Justice Neville was discharged in the subsequent matter, but it was held that the vendors ought to pay the costs of the appeal and the Court below, and the Master of the Rolls pointed out that when there is a real difficulty or doubt in construing a will, it was not right for the Court to force a title upon a purchaser, which might merely mean that he was buying a lawsuit. Nobody could question that decision, having regard to the particular facts of that case and the difficulties in question, In Alexander v. Mills (2), referred to by Mr. Wilson in this part of the argument, which was a suit for specific performance on a vendor and purchaser summons, the Master of the Rolls had dismissed the action, and there was an appeal from the decision, and counsel for the respondent in his argument said that the matter at issue involved a point of great nicety never before expressly decided. Sir William James delivered the decision of the Court of Appeal, reversing the Master of the Rolls, and in delivering the judgment said:”We do not say that there may not be cases in which a question of law may be considered so doubtful that a court would not on its own view compel a purchaser to take the title; still as a general and almost universal rule a Court is bound, as much between vendor and purchaser as in every other case, to ascertain and determine as it best may what the law is, and to take that to be the law which it has so ascertained and determined.”
In Cattell v. Corrall (1), which was a suit for specific performance, Alderson B. says:”I quite agree that a purchaser ought not to be compelled to take such a title as on reasonable grounds might be litigated, but then there must be a reasonable decent probability of litigation.” [The learned Judge next referred to Moyridge v. Clapp (2), and proceeded.]
In In re Carter and Kenderdine’s Contract (3), a vendor and purchaser’s summons, Lindley L.J. said that the point was extremely important that the objection taken by the purchaser was a very formidable one, that the question had arisen previously, that Mr. Justice Stirling had held the objection to be so serious that he could not force a similar title on the purchaser, that, on the other hand, Vaughan Williams J., who considered the question from a somewhat different point of view, had come to the conclusion that a purchaser would get a good title. The Court of Appeal supported Mr. Justice Vaughan Williams’ view on the point, and decreed specific performance, notwithstanding Mr. Justice Stirling’s view. Lindley L.J. said:”I am of opinion that the purchaser will get a perfectly good title, and, in order not to throw a cloud upon it, he will pay the cost of the litigation.”
In this case, having arrived at the clear conclusion that Mr. Wilson’s proposition of law is sound and borne out by the authorities, and having come to the conclusion that the intention that an equitable estate in fee should pass is indicated on the face of the instrument in question, and that therefore the title to these hereditaments is not doubtful, I must give effect to that conclusion by declaring that the requisition in question has been sufficiently answered, and that good title has been shown in accordance with the contract.
Ward v. Ward.
[1921] IR 118
SIR JAMES CAMPBELL C. :
Mary Anne Mahon, by will dated 11th May, 1881, devised her estate known as Gurteen to her son Thomas Mahon during his natural life, and in case of no lawful issue by him, to her daughter Julia Ward, with remainder to her and her children for ever. Thomas Mahon had no lawful issue, and upon his death the estate passed by the devise to Julia Ward, the question for decision being as to the nature and quality of this estate; or, in other words, whether Julia Ward was entitled to an estate tail, or to an estate for life only, with remainder to herself and her children as joint tenants. I think the authorities establish that the words “and his children,” following upon a devise to A, are words of purchase and not of limitation, especially when A has children living at the date of the will; but even in such a case it has been sometimes held upon the language and its context that they were words of limitation. In Roper v. Roper (1) it was held in the Common Pleas that a devise by A to his wife for her natural life, and after her decease to his daughter, to her and her children for ever, conferred an estate tail on the daughter, even though she was enceinte of a daughter at the date of the will and of the death of the testator. Willes J., who gave the judgment of the Court, held in effect that it was the duty of the Court to give effect if possible to all the words of the bequest, and that the words “to her”would be surplusage if the sentence “to her and her children”was treated as one of purchase, the intention of the testator apparently being that the children should take through the mother. This decision was affirmed in the Exchequer Chamber (2)upon two groundsfirst, that the testator could not be supposed to have intended that the unborn child was to be the immediate object of the devise jointly with the mother, and that in any event one child could not satisfy the word “children”; and, second, on the ground put by Willes J.
In the present case the question is made complicated and difficult by reason of two considerations that were absent in Roper v. Roper (1)first, the fact that Julia Ward had seven lawful children living at the date of the will and of the death of the testator; and, second, that the gift to her and her children for ever is by way of remainder. Upon the whole, I have come to the conclusion, after considerable doubt, that I ought not to dissent from the decision of the Master of the Rolls, mainly in consideration of the fact that Julia Ward could only benefit in possession by this remainder in the event of her surviving all her childrena contingency so remote that I agree with the Master of the Rolls in thinking it was never within the contemplation of the testatrix, and that her real intention to be inferred from the entire will was, as held in Roper v. Roper (1), that the children should take through their mother, and that the estate should follow on the line of her issue.
RONAN L.J. :
In this case we have to construe what must be taken to be a doubtful will. I take the following passage from the judgment of Lord Hatherley in Clifford v. Koe (1) as defining the duty of the Court. It is peculiarly appropriate, as the case was one dealing with the rule in Wild’s Case (2):”I apprehend, my Lords, that a Court of Justice in endeavouring to ascertain the intention of a testator in a will which may admit, when brought into contact with the surrounding facts, of some doubt and difficulty, will always do two things. In the first place, it will do what is somewhat quaintly called place itself in the testator’s armchair, that is to say, it will see what was the existing state of the family and of everything connected with the property which may have a bearing upon the subject, and then consider the words of the bequest. And, in the second place, it will consider whether or not those are such words as have a fixed and determined intent imputed to them wheresoever they occur in a will, unless some contrary argument can be derived from the construction of the will, and the circumstances connected with the property, and the position of the family.”
As to the first matter, the testator at the date of the will had two childrena son Thomas, who never had issue, and has died; a daughter, Julia Ward, who at the dates of the will and of the death of testatrix had seven living children; the defendant, Thomas (the eldest son), and the plaintiff, Lewis, and five daughters, the plaintiffs, Mary and Kathleen, and three others. Julia Ward died in 1906; Thomas Mahon in 1920. The will was made in 1881, and the testatrix died in the same year or shortly after. As to the second matter referred to, we have really only to deal with five lines of the will. They contain such words as are referred to by Lord Hatherley, viz., “estate,” “issue,” “remainder,””for ever”; and phrases, viz., “in case of no lawful issue by him,” “to my daughter with remainder to her and her children for ever.” The “imputed” intents referred to are to be ascertained by reference to the rules of construction applicable to each word and phrase. Testators constantly use the same ambiguous or doubtful expressions. It is to meet such cases that we require the assistance of rules of construction. Only those who have had to advise on the construction of wills know the advantage of these rules. By their assistance counsel are enabled to advise parties as to their rights in a vast number of cases in which it would be impossible to do so without them. But this depends on the assumption that the Courts will follow the imputed meanings unless a will shows with certainty that the rule should not be followed. As Sir W. Page-Wood (afterwards Lord Hatherley) says in Almack v. Horn (1): “Nothing is more mischievous than to depart from the settled legal meaning of words unless there is something in the instrument which absolutely requires that you should do so.”
Wild’s Case (2) is the basis of the rule of construction with which we have mainly to deal here. It is curious that the devise there resembles that in the present case more closely than any other case. We must bear in mind that now the rule is: “In devises of real estate issue is, prima facie, a word of limitation, and equivalent to heirs of the body” (Hawkins, 189). Here we have gifts to Thomas and Julia; the gift to Julia only to take effect if the gift to Thomas fails. But for the Wills Act the gift to Thomas would have given him an estate tail, the word “issue”being taken in accordance with the rule. In Wild’s Case (2) the first devise was “to A for life, remainder to B and the heirs of his body”; then came the devise in question, “remainder to W. and his wife, and after their decease to their children.” Here it is “to Julia, with remainder to her and her children for ever.” If we omit1, the fact that the tenant for life was included in the class to whom the remainder is given, and, 2, the words “for ever,” the cases are identical; the words of limitation in the first devise in each case: “heirs of the body” in one, the equivalent “issue” in the other; the word of purchase: “children” in the devise in both cases; the separate gift to the parent, followed by the separate gift to the children in both. The principle of the decision in Wild’s Case (2) is that at Common Law the primary meaning of such words is “an estate for life, the remainder to their children for life, thence it follows that the intent and not words only of the devisor ought to make it an estate tail in this case. Then this intent ought to be manifest and certain and so expressed in the will; and in this case no such intent appears; for, peradventure, his meaning was to agree with the rule of the law”; that is the ordinary legal effect of the words used.
This statement as to the necessity that the intent should be manifest and certain in the case of the estate tail is very important. That it is still the law appears from the judgment of Wood V.-C. in Webb v. Byng (1): “The real rule in that case [ Wild’s Case (2)] being that it is lawful, as Lord Hardwicke puts it, to construe the word ‘children’ as a word of limitation where the will necessitates such a construction.” I shall now read the entire resolution in Wild’s Case (2). [His Lordship read the resolution.] I refer specially to the words “but if a man devises land to A and to his children or issue, and they then have issue of their bodies, there his express intent may take effect according to the rule of the Common Law, and no manifest and certain intent appears in the will to the contrary. And therefore in such case they shall have but a joint estate for life.”
I may point out that the word “issue” does not occur in the will in Wild’s Case (2), but does in the statement of the rule. It seems that “issue” was taken then as equivalent to “children.” It does not seem that the rule that the word “remainder” carried the fee was then established. There seems some suggestion of doubt in the judgments in Roper v. Roper (3) as to whether it is settled that a devise to A and his children, where he had children at the date of the will, gives a joint tenancy to him and his children. If there ever was any doubt as to this, Clifford v. Koe (4) puts an end to it. It is an express decision on the point. Lord Hatherley says, at pp. 462-3: “Now, my Lords, it has been settled for about 300 years that if on reading a will you find these words, ‘I give to A and his children my estate and property,’ and so on, then prima facie, if you make no inquiry at all about the state of the family of the donee and the devisee, and assume that there was a family in existence at the date of the will, those words in themselves mean a gift to the parent and the children as either joint tenants or tenants in common, as the case may be, according to the construction of the other words of the will. But if you find on inquiring into the state of the family that there was no child whatever of A in existence at the time of the will being made, then, in order that the children who may come into existence (their parents being alive) may have some share of the interest which was evidently intended in some way or other to reach them, you, in such a case, according to the rule which has been established for 300 years, interpret the words as being a limitation to the parent for life with remainder to the children successively, so that each of them shall have his chance in his turn of taking the property.” See also Lord Selborne at p. 453. The fact that since the Wills Act a simple gift to A carries the fee makes no difference in the application of the rule in Wild’s Case (1). See the judgment of Lord Blackburn at pp. 467-8.
When Wild’s Case (1) is carefully read, it will be seen that at the root of it lies the rule of the Common Law that an immediate devise to a person not in existence at the date of the will is void: 6 Cruise’s Digest, p. 14. Therefore, a gift to A and her children, where she has none at the date of the will, is void as to the children. To avoid this result in such a case, the Court substitutes for children “heirs of the body.” But if she has children the gift is valid, and takes effect according to the ordinary meaning at Common Law of the actual words themselves.”And a devise to a person not in existence at the time when the will is made . . . may be good by way of remainder or executory devise”: 6 Cruise’s Digest, p. 15.
The gift here is to Julia (having children), with remainder to her and her children for ever. If the gift had been “to her and her children,” or to her with remainder to her children, the limitations could take effect in their ordinary sensea joint tenancy in the one case; a gift to her for life with remainder in fee to the children. There are, as I have already said, two additional matters in the present case1, the fact that the tenant for life is included in the class who take the remainder; 2, the words “for ever.” Do these circumstances justify the Court in substituting heirs of the body for children in the case of a devise which can operate in its ordinary sense according to the Common Law? I shall now deal with the former. There can be no doubt that the inclusion of the tenant for life in the class to take in remainder is unusual. Is there any other objection to it? It is clear and unambiguous. Why should effect not be given to it? When properly construed and proper legal effect given to it, is there anything to justify not giving effect to it? Let us see how it operates, and how far, if at all, it defeats the probable intention of testatrix as compared with the construction contended for by the respondents.
It is plain that the testatrix intended that Julia should have the whole for life, and that Julia’s children were to have some interest after her death. The two constructions are1, estate tail in Julia; 2, Julia, for life remainder to her children in fee as joint tenants, assuming that the devises allow the provisions of the will to stand and take effect. Suppose in the one case the estate tail not barred, and in the other the joint tenancy not severed, and that all the children survive the mother, as the facts are here, the Courts construe wills according to the estates thereby created, although the law permits the devisee to alter the effect of the dispositions. On the death of Julia, the results of 1 would be that Thomas and his issue would take the whole to the exclusion of the six other children. The result of 2 would be that the seven children would take equally. Can there be any doubt that the latter would carry out the intention, and that the former would defeat it? Assume that some of the children died in Julia’s lifetime, then the survivors would take the whole. Assume that Julia exercised her full legal power. In 1 she bars the entail, and thereby acquires the fee, and deprives the children of all interest save what she may choose to give. In 2 she severs the joint tenancy. She thereby only acquires one-eighth, and the remaining seven-eighths remains the property of the children, and she can divide the one-eighth between them as she pleases.
It is obvious that the joint tenancy in the remainder carries out the intention of the testatrix more effectually than a tenancy in common. Testators generally assume that their grandchildren to whom they make gifts will survive their parents. On that
assumption the plaintiff’s construction carries out the supposed intention.
I shall now refer to a case expressly dealing with the effect to be given to the inclusion of the tenant for life in the class taking the remainder, and how far this is a ground for holding that a rule of construction should not be followed. The remainder was a tenancy in common. In Almack v. Horn (1) the testator had a daughter A, who had an only child, a daughter B. He devised his real estates to A and B as tenants in common during their joint lives, then to the survivor, for life, “and after her decease to all and every the child and children of my said daughter and grandchildren, lawfully to be begotten, as tenants in common in tail.” B was the only child of A. B had three children. The question was whether B was entitled to share with her own three children in the remainder after the death of the survivor. It was argued for the three children that the testator, having given her an estate for life, could not have intended her to share with her own children. It was argued for persons claiming under B that the cases cited showed that where there is a gift to A for life, remainder to next-of-kin or relations of testator, A is allowed to take as a next-of-kin or relation. (In addition to the cases cited, there are several others referred to at p. 131 of 2 Jarman, 4th edition.) But the strong argument for the three children was this: the remainder was to “children to be begotten”; that could not include B, who was living at the date of the will. True, there is a rule of construction that children to be begotten includes existing children; but the peculiar character of the present gift is sufficient to exclude the rule, and to give the words “to be begotten” their ordinary meaning, as was done in Early v. Benbow (2). Page-Wood V.-C. reserved judgment. In his judgment, having stated the facts and the rule of construction, and having distinguished the case of Early v. Benbow (2), he said:”Nothing is more mischievous than to depart from the settled legal meaning of words unless there is something in the instrument which absolutely requires that you should do so. The only peculiarity in this will is the gift of a life estate followed by a sweeping clause carrying the property subject to the life estate to a class of which (according to strict legal construction) the tenant for life would be a member together with her own children. But, though peculiar, there is nothing in this disposition so extravagant and absurd as to compel me to reject the legal construction of the words. It involves no inconsistency to say that the devisee shall take the whole for life, and that after her death her children shall be let in to share the fee with her.”This case decides that where the rule of construction provides that “to be begotten” shall include existing children, the inclusion of the tenant for life solely through this rule in the class is not sufficient to induce the Court to construe the words in their ordinary sense and exclude her. This goes far beyond the present case, which only requires the words to be read in their ordinary sense. I am, therefore, of opinion that the inclusion of the tenant for life in the gift in remainder does not justify the Court in departing from the ordinary meaning and effect of the words.
I shall now consider the effect to be given to the words “for ever.” The effect of the words “for ever” in reference to an estate tail was very fully considered by the House of Lords in the case of Vernon v. Wright (1). The devise there was: “To the right heirs of my grandfather S., deceased, by his second wife, also deceased, for ever.” Mandeville’s Case (2) decided that those words, apart from the words “for ever,” gave prima facie an estate tail to the right heir at the time of the death. But what was the question argued? That the words “for ever” were so inconsistent with an estate tail that they converted the estate tail which would have arisen from the earlier words into an estate in fee. This was the question in the case. It was partly argued before the Lords in February. The question was thought so grave that it was adjourned to be heard with the assistance of the Judges. It came on before the Lords and five of the Judges. Four Judges were of opinion that the words “for ever” had not this effect; but no less an authority than Mr. Justice Willes held that the earlier words were not conclusive, and that they were open to two constructions, and he said: “This ambiguity appears to me to be removed by the addition of apt and sufficient words of limitation in fee-simple, viz., the words ‘for ever,’ which being themselves a limitation of the estate in fee-simple, show that the previous words ought to be read in this latter sense as designatio personae only. . . . If this construction should not be adopted, the words ‘for ever’ are unnecessarily rejected and treated as null.” The other four Judges held that the words”for ever” did not enlarge the estate tail created by the previous words into an estate in fee-simple. As Crowder J. put it: “The substance of the limitation exists in the words ‘heirs by his second wife,’ and the words ‘for ever’ only import the continued duration of the estate tail.” The Lords decided, in accordance with the view of the majority of the Judges, that the previous words were clear, and that the words “for ever” were not sufficient to prevent them operating to create the estate tail or to enlarge that estate into a fee-simple. Lord Cranworth said: “The view of the case taken by Willes J. is entitled to great attention. But I am unable to concur in it. The words ‘for ever’ would, no doubt, be sufficient, if the context required it, to create an estate in fee; but, considering how very commonly these words are used in connexion with an estate of inheritance, whether in tail or in fee, being, in fact, merely tautologous, I cannot think that they make any real difference.” The other Lord present was Lord Wensleydale. He said: “I confess that during the course of this inquiry I have felt that if this had been a discussion of the question for the first time, and I had been called upon first to decide on the meaning of this clause in the will, I should have entertained some doubt as to whether it was not to be distinguished from Mandeville’s Case (1) by two circumstances: the one that it is a bequest ‘for ever,’ which imports in fee; and, secondly, that if you construe this to be an estate tail, there will be an intestacy as to the remainders over, which is a circumstance that you ought to avoid in construing wills.” . . . [This applies also in the present case.] “However, I cannot say that my notions on that subject have amounted to much more than a doubt in the course of this inquiry, and I hold that you ought not to reverse a careful and elaborate decision of the Court below unless you are satisfied that it is wrong. . . . And when I consider that that judgment has been recognized as being perfectly sound by four Judges out of five who have given their opinion, I certainly cannot consider that my doubts ought to weigh. . . . I think the words ‘for ever’ may not improperly be applied to an estate tail, though with respect to an estate tail they are not perfectly correct.”
Lord Wensleydale was one of the greatest authorities on the construction of wills. His judgments are quoted in every textbook, and referred to in all important cases. It is obvious that on the first hearing he took the same view as Willes J., and that, he and Lord Cranworth differing, they decided to call in the Judges. It is also plain that he would not go further than this on the second hearing, viz., that having regard to the opinion of four Judges, he was not sufficiently satisfied that the judgment was wrong to induce him to reverse it. An estate in fee lasts for ever, and estate tail only so long as the issue last. The expression “not quite correct” seems the farthest he would go. Lord Wensleydale and Willes JJ. were certainly two of the greatest lawyers of the nineteenth century. The case was decided in 1858. It is, of course, of the highest authority. The only question really in the case was the effect of the words “for ever”in connexion with an estate tail. It is the only case I have found in which that question appears to have been really discussed. Having regard to the entire case, I confess I find it difficult to see how in the face of it anyone could attempt to argue that where the prior words did not prima facie create an estate tail, the addition of the words “for ever” would have that effect.
A gift to A before the Wills Act gave a life estate; the addition of the words “for ever” converted it into gift in “fee.”Where A had children, a gift to A and his children gave them a joint tenancy for the lives of them and of the survivor. Why the addition of the words “for ever” should not convert this into a joint tenancy in fee, I fail to see. But there are statements in text-books that this addition creates an estate tail in the parents. The books I refer to are Hawkins, Theobald, and Stroud’s Dictionary. The last refers to Vernon v.Wright (1) in this connexion. It is not referred to at all in Hawkins. It is referred to in Theobald, but not in connexion with this matter. It is subsequent to all the cases referred to in Theobald except Roper v. Roper (1); it is not referred to in that case. There is no statement in Jarman similar to those in the books I have mentioned.
It is stated in Hawkins’ second edition, p. 243, that “a devise to A and ‘his children for ever,’ or to A and ‘his children in succession’ ( Tyrone v. Waterford (2)) will create an estate tail.”The case only deals with the gift in succession. No authority is cited in either edition of Hawkins for the proposition as to the gift for ever. The case cited turned on the construction of a complicated will drawn by the testator himself. Lord Campbell decided the case on the general scheme of the will. Lord Justice Knight Bruce held on the whole will that “children in succession”was a phrase of limitation, p. 628. Lord Justice Turner, on the other hand, said he would give no opinion as to whether “children” was to be considered as a word of purchase or as a word of limitation, p. 629. The case has, in my opinion, really no bearing on this case. It was a decision on a very special will, and the words were wholly different from those in the present case. The absence of any reference to Vernon v.Wright (3) shows that Mr. Hawkins cannot have considered the matter with his usual care. The statement in the second edition of Hawkins is the same as that in the first. At p. 414 of Theobald, 7th ed., there is the following statement:”‘Children’ may be a word of limitation. Thus, 1, a devise to A to hold to him and his children for ever; 2, or to A and his children for ever; 3, or to A and his children lawfully begotten for ever, gives A an estate tail.” He refers to four decisions in support of these three propositions, and adds: “In such cases ‘children’ would seem to be a word of limitation quite independently of the so-called rule in Wild’s Case ” (4). The suggested proposition plainly is that where you have a gift to A and his children, and A has children capable of taking, this is immaterial if the words “for ever” are added; that these words are sufficient to create an estate tail in such a case and that the distinction taken in Wild’s Case (1) becomes immaterial, the words “for ever” being the material words.
The first case and the most important referred to in Theobald is Davie v. Stevens (2). It was a devise in these terms: “I also give and bequeath to my son William Stevens, when he shall accomplish the full age of twenty-one years, the fee-simple and inheritance of X to him and his child or children for ever.” William had no children at the date of the will. The question was what estate William took. The words “for ever” are not referred to in the argument. Lord Mansfield says: “To give the father an estate in fee would be to strike those words (child or children) out of the will. They must operate to give him an estate tail; for there were no children born at the time to take an immediate estate by purchase.” Thus he decides the case on the words, omitting the “for ever.” But, as if to prevent any doubt as to this, he adds: “The words” “‘for ever,’ make no difference, for William’s issue might last for ever.” This was in 1780. It is obvious from the judgment that he only referred to the words”for ever” for the purpose of showing that they did not affect the estate tail created by the previous words; that they were immaterial. The case was plainly decided on the principles of Wild’s Case (1): 1, that there were no children at the time, and, 2, that the gift was immediate and not in remainder.
The next case referred to is Broadhurst v. Morris (3). The devise was “to W. B. and to his children lawfully begotten for ever, but in default of such issue at his decease to the testator’s grandson A. B., his heirs and assigns for ever.” W. B. had no children at the date of the will or death. Being a case sent from Chancery, the Court gave no reasons for the judgment, so we must look to the argument. Cowling, for plaintiff: “W. B. took an estate tail. . . . If the devise stopped at the words, ‘lawfully begotten for ever,’ the case would be governed by the rule in Wild’s Case (1).” He then reads the rule and proceeds: “The addition of the words ‘for ever’ in this will can make no difference,”and cites Davie v. Stevens (2) on this point. This is the only reference to these words in the arguments, which occupy eight pages. It is plain that Cowling was only contending that
“for ever” did not affect the estate tail created by the prior words.
The third case is Wood v. Baron (1). In this, the only case of the four in which the parent had a child or children at the date of the will, the devise was as follows [His Lordship read the terms of the devise]. The first thing to note is that the devise is not one of the three mentioned in respect of which the case is cited; 2, there is no direct gift to children at all, only one to the parent to hold same as a place of inheritance to her and them; and, 3, that even this is not “to her children,” but “to her children or issue”a vital distinction, as a devise to A. and her issue gives an estate tail, whether she has children or not. This was also a case from Chancery, and the Court reserved judgment, and gave no reasons. We must, therefore, examine the arguments and statement by Lord Kenyon at the close. “Holroyd, for the plaintiff: A. W. took an estate tail. Wild’s Case (2) . . . only holds where the estate is given to the children by express words, whereas here the gift is to Anne Wood alone, ‘who shall enjoy the same as a place of inheritance to her and her children, &c.’ There is, therefore, an express estate of inheritance given to her.” He does not refer to the words “for ever.” Manley contra: “This case fell expressly within the rule laid down in Wild’s Case (2), that if a man devise land to A and to his children and issue, and that he have then issue, the issue shall take a joint estate for life with A.” [Lord Kenyon observed”that there were other words here, namely, that A. W. should enjoy the estate as an inheritance to her and her children or issue for ever.”] This observation is plainly addressed to the argument that only a joint life estate was given. This appears from the next reply of Manley, viz., “If those words were construed to give A. W. a fee, it would make the limitation which follows”[the gift over in default of issue] “an executory devise.” [Lord Kenyon: “It would be too remote.”] Manley cited Porter v.Bradley (3) and Roe v. Jeffrey (4) to show that it would not. Lord Kenyon then expressed his view of the case: “In cases of this sort one spells, as it were, every word in order to get at the real intention of the testator.” He then takes the words, not of the devise, but of the gifts over in Porter v. Bradley (1) and Roe v. Jeffrey (2),and says they “showed that the testators in the respective instances meant to confine the limitations over to the event of a dying without issue at the time of the death of the first taker. But it is a general uncontrollable rule that that which may take place as a remainder shall never take place as an executory devise; and at present it appears to me that A. W. took an estate tail. However, we will consider the case, and certify our opinion.” They certified an estate tail. It seems to me obvious that Lord Kenyon decided the case on the ground that the gift over was on a general default of issue of A. W; the words being “if A.W. should die leaving no child or children, or if A. W.’s children should die without issue”the latter words clearly import general failure of issue of A. W. I have examined this case minutely as being the only one in which the parent had children at the date of the will. It is, in my opinion, no authority for the proposition that a devise to A and her children for ever gives an estate tail if A has children at the date of the will. The gift is wholly different; it is not direct; it is to her alone, and not to children, but to “children or issue,” and the case seems to have been decided on the gift over. There is none in this case. Further, it is not a gift in remainder.
The fourth case is Roper v. Roper (3), reported in the Common Pleas in 36 L. J. C. P. 270 only; in the Exchequer Chamber in L. R. 3 C. P. 32. It was a case of devise “unto my daughter M., wife of A. R., to her and her children for ever.” M. had no child born at the date of the will, but was enceinte. In the Exchequer Chamber the Court held that for the purposes of the rule in Wild’s Case (4) she must be taken to have had no children at the date of the will, and that, therefore, under that rule, she took an estate tail. The Court, however, also expressed their concurrence in the view taken in the Common Pleas, which apparently treated the case on the basis that M. had a child at the date of the will. There Mr. Justice Willes and the Court decided the case on the ground that the gift was not “to M. and her children” simply, but “to M., to her, and her children”; that if they took as joint tenants the additional words “to her”would be surplusage, and he, therefore, treated them as words of limitation, as some effect must be given to them. The Court could not reject them. There are some observations in both Courts which seem to suggest a doubt as to whether a gift simply “to A and her children,” she having children, would give a joint tenancy, but, at all events, since the judgments of the House of Lords in Clifford v. Koe (1), there can be no doubt as to this. The decision of the Common Pleas is entirely based on the words “to her” after the gift to M., and the impossibility of rejecting them. What application can this have to the present case: “to A with remainder to her and her children”? To make it apply, the words “with remainder” must be struck out of the will, or treated as unnecessary. This would be infinitely stronger than striking out the repetition “to her” as not affecting the meaning. The clause as it stands accurately and technically describes a particular estate and a remainder, and the striking out of “with remainder” alters the entire meaning of the words, and is, in my opinion, wholly unjustifiable.
Under the rule in Shelley’s Case (2), where there is a particular estate of freehold to A., with remainder to the heirs of his body, or in a will to his issue, the operation of the rule (which is one of law and not of construction) is thus described in 6 Cruise’s Digest, p. 276: “The estates could not stand together, but the estate left was swallowed up in the estate tail.” But paragraph thirty-nine, at p. 290, is as follows: “The rule in Shelley’s Case (2) does not apply to the words ‘sons’ or ‘children,’ and, therefore, a devise to A for life, with remainder to his first and other sons, or to his sons or children, gives A only an estate for life, and his sons or children will take by purchase.” That is, those two estates can stand together, and one does not swallow up the other. The unambiguous word “remainder” cannot be struck out, and it establishes that there are two estates given, not one. But, so far as the words “for ever” are concerned, they do not appear to have been referred to in either Court. The Exchequer Chamber based their judgment on the rule in Wild’s Case (3), where there are no children, and only expressed a general concurrence in the judgment of the Common Pleas. In the Common Pleas Willes J. was, of course, thoroughly conversant with Vernon v. Wright (1). He would obviously be the last Judge to hold that the words “for ever” would create an estate tail where it was not created without them by the will.
In addition to these four cases, Mr. Theobald says: “See too Doe d., Gigg v. Bradley ” (2). This was a case of a bequest of a term of years. It is described in Jarman thus: “The word ‘children’ seems to have been construed as a word of limitation (in a very obscure will).” I do not think it would give any assistance in the case if I attempted to examine this obscure will. The cases cited by Mr. Theobald do not support the proposition suggested by him. They seem to me entirely in accordance with Vernon v. Wright (1), and none of them even suggests that the words “for ever” can create an estate tail where it would not exist without them. In dealing with the words “for ever,” Mr. Stroud says “they are not inconsistent with an estate tail,” and refers to Jarman. He adds, “and would sometimes create such an estate”: Wright v. Vernon (3); Good v. Good (4). Neither of these cases is any authority for this latter proposition. He immediately afterwards correctly states the effect of the former, viz., “added to words creating an entail the phrase ‘for ever’ is insufficient to enlarge the gift to a fee simple.” Here he refers to the case in the House of Lords. In the report in 2nd Drewry, Kindersley V.-C. nowhere suggests that the words “for ever”can create an estate tail which would not have been created without them. All he says is: “Cases, almost without number, occur in which those words are added to limitations of estates tail, . . . the use of the words ‘for ever’ in those cases (that is, where the preceding words have created the estate tail) only indicating the donor’s or testator’s intention that the estate is to pass to the whole series of special heirs indicated, continuously and without interruption.” Good v. Good (4) was a devise “to G. to hold unto him, the said G., his heirs lawfully begotten for ever.”There was no gift over in default of issue. The words “for ever”are not referred to in argument or judgment. Lord Campbell, giving judgment, said: “The devisor has clearly used apt words for giving an estate tail by limiting the land to a man and his heirs lawfully begotten,” omitting the words “for ever.”Crompton J. said: “The words of the first limitation have always been considered to give, in a will, an estate tail, and that is clearly assumed by the Court of Exchequer in Mortimer v. Hartley ” (1).The words referred to there were “heirs lawfully begotten,” not”for ever.” The case is a specific authority that the words without the words “for ever,” which are never referred to, created an estate tail. The only question in the case was the effect of the absence of a gift over, which it was contended distinguished the case from the authorities, which had decided that the words without “for ever” created an estate tail. The authorities cited by Mr. Stroud, therefore, wholly fail to establish the proposition for which he cites them. This is very remarkable, as, considering the enormous scope of the work, the accuracy of the dictionary is wonderful. On these words Mr. Stroud was probably misled by the positive statement in Hawkins, to which work he often refers.
From this examination of the authorities, I am of opinion 1, that a gift to A and his children, where A has children at the date of the will, gives them a joint tenancy in fee; that this is settled beyond question by Clifford v. Koe (2), even if there had been some doubt as suggested in Roper v. Roper (3); 2, that the addition of the words “for ever” does not change the gift into one of an estate tail to A. But even if it did, this would not decide the present case. The limitation would still be 1, to Julia; 2, with remainder to her and her children for ever. Surely, it cannot be suggested that the testatrix intended a gift to Julia for life with remainder to her in tail. Even if the proposition in Hawkins and Theobald were law, to make them applicable we should read the will, “To Julia and her children for ever,” and strike out of the will the words “with remainder to her.” For these reasons I think the appeal should be allowed.
O’CONNOR L.J. :
What is the meaning in this will of the words “to her, Julia Ward, with remainder to her and her children for ever”?
That the word “children” in a will has, prima facie, the same sense as in our own ordinary language, namely, issue of the first generation, is well settled in Wild’s Case (1) and many other authorities; that this prima facie sense may be displaced where the context of the will or the general intention of the testator so requires is equally well settled, this displacement often occurring where there are no children at the date of the will, or, even where there are such children, if the general scope of the will so requires: Byng v. Byng (2). The words “for ever” may, as I think, according to the context, tend in the direction of an estate tail or of a fee-simple. But I think it is a mistake in construing a clause to take one word or expression and then another word or expression, and by piecing together the primary signification of the one with the primary signification of the other to say that there you have the meaning of the clause. One must look at the whole clause.
Suppose I use the expression “A and his children for ever”divorced from any context, what should I be taken to mean? Well, I think, most people would say, “A and his descendants.”The phrase is frequently so used in the Bible, that great storehouse of the language which flavours and permeates our speech and writing: “For the Lord thy God hath chosen him out of all thy tribes to stand and minister in the name of the Lord, him and his sons for ever.” Therefore, as I think, in ordinary language,”A and his children for ever” is, at any rate, susceptible of the meaning, “A and his children ad infinitum,” or “A and his descendants.” If a testator gives an estate to “A and his children for ever,” this may mean, in my opinion, either that he gives the estate for ever to A and his children, or that he gives the estate to A and his descendants; and which of the two meanings is correct seems to depend on the context.
In this case I think the testator meant “to her and her descendants,” for I think the other alternative attributes to the testator a very far-fetched intention indeed. To give Julia Ward a life estate, with remainder to herself and her seven children as joint tenants, is to give her something which she could not possibly enjoy unless in the event of the seven children taking nothing; in other words, in the event of the seven children dying before her. It is, of course, true to say that the joint tenancy could be severed in Julia Ward’s lifetime. She would thus get a life estate, with a one-eighth as tenant in common in remainder; but surely one can hardly attribute that intention to the testator, having regard to the terms of the will.
Being, therefore, of opinion that this will should be construed as if it read “with remainder to her and her issue,” I am of opinion that the Master of
Kennedy and Lawler v. Ryan.
[1938] IR 620
Gavan Duffy J.
GAVAN DUFFY J. :
23 May
I have to determine the construction of a deed, dated the 24th of August, 1934, whereby one, Thomas Gavigan, in consideration of a substantial sum of money, granted and conveyed the freehold house, No. 1 Fownes’s Street in the City of Dublin, unto George Ryan and Sheila Ryan “to hold the said premises unto and to the use of the said George Ryan and Sheila Ryan their and each of their heirs and assigns” and purported to assign unto the said George Ryan and Sheila Ryan the seven day licence (for liquor) attached to the premises “to hold the same unto the said George Ryan and Sheila Ryan absolutely.”
The difficulty arises upon the words “their and each of their heirs”; it would be unsafe to base any conclusion upon the presence of the word “assigns”: Brookman v.Smith (9); since 1883, where real estate is conveyed to husband and wife jointly, they take as joint tenants and I am pressed by Mr. Vaughan Wilson to hold that Mr. and Mrs. Ryan, who were husband and wife, took the property as join tenants in fee simple.
Mr. Ryan died on the 19th of February, 1938, leaving the defendant, Sheila Ryan, his widow, and a son and daughter, infants, surviving; his will was proved by the two plaintiffs and the defendant, who are his executors and trustees. If there was a joint tenancy in fee simple, Mrs. Ryan has the benefit of survivorship; the argument for her is that a grant to husband and wife, their and each of their heirs is a grant to the husband and wife and their heirs, so that the words “and each of” are superfluous, and, as such, to be rejected in the construction of the deed. The plaintiffs, who are devisees in trust, reply that this contention ignores the clear implication of distinctness or plurality of interest in the expression “their and each of their heirs,” by the force of which the property, or at least the inheritance, can only have been held by the grantees as tenants in common.
Mr. Burke for the plaintiffs relies upon a series of cases recognising the partitive force of the word “respective”to make a tenancy in common, cases in which a devise to A. and B. (being persons who could not marry) and their heirs respectively has been held to give a joint life estate to A. and B., with remainder to each of them as tenants in common after the death of the survivor. This principle has been applied to a devise to two nieces as joint tenants and their several and respective heirs and assigns for ever: Doe v. Green (1); and to a devise to trustees in trust for A., B. and C. and for their respective heirs, executors, administrators and assigns: In re Atkinson (2). A devise to two daughters and their issue or to two nieces to hold to them, their heirs and assigns for ever (without the word”respective”) produces the like result, since there are necessarily several inheritances: Cook v. Cook (3); Forrest v.Whiteway (4). The authority for this construction is to be found in s.283 of Littleton’s Tenures, in a passage to which I shall return; Littleton was dealing with an estate tail, but the principle is equally applicable to an estate in fee simple: Doe d., Littlewood v. Green (5). The cases have generally been decided upon wills, but Littleton was speaking of a deed at common law, and the principle was applied in England to a deed, of which we have scanty particulars, in Wilkinson v. Spearman (6), where the House of Lords appears reluctantly to have followed the same rule upon a grant to two daughters and the heirs of their bodies. The common law position is carefully examined by Brady L.C. in Fleming v. Fleming (1), as to the indications necessary to create a tenancy in common; much less definite words have proved sufficient in a will or conveyence to uses. (See Bacon’s Abridgement, tit. “Joint Tenants”(F), and 2 Preston’s Abstract, 471.) But there is no doubt as to the applicability of Littleton’s principle to cases as wide apart as grants at common law and wills, and so to what I may collect under one head as the various intermediate types of assurance.
Romilly M.R., applying Littleton’s principle, in Ex parte Tanner (2), says:”If land were given to a man and woman, and the heirs of their bodies, this would be an estate in special tail, and the word ‘respective,’ if introduced before the word ‘heirs,’ would have the effect of making the man and woman joint-tenants for life: it would be the same as if the gift were to a man and woman who could not marry and the heirs of their bodies.” This obiter dictum if it be correct, may apply to sever the inheritance in fee simple in the present case, provided that the limitation here be equivalent to a limitation to the respective heirs of the husband and the wife, a question which I shall have to examine. The reasoned statement in Littleton deserves to be quoted, that statement, as reproduced in Coke upon Littleton, par. 182a, reads:
“Also there may be some joyntenants, which may have a joynt estate, and be joyntenants for terme of their lives, and yet have severall inheritances. As if lands be given to two men and to the heires of their two bodies begotten, in this case the donees have a joynt estate for terme of their two lives, and yet they have severall inheritances. . . . And the reason why they shall have severall inheritances is this, inasmuch as they cannot by any possibility have an heir between them ingendred, as a man and woman may have, &c. the law will that their estate and inheritance be such as is reasonable, according to the forme and effect of the words of the gift, and this is to the heires which the one shall beget of his body by any of his wives and to the heires which the other shall beget of his body by any of his wives, &c. so as it behoveth by necessitie of reason, that they have severall inheritances.”
Upon this passage my Lord Coke waxes eloquent on reason as the life of the law and earnestly recommends all students of law to apply their principal endeavour to attain thereunto. The doctrine of a joint tenancy for life in such a case, with a tenancy in common of the inheritance, is here expressly based on necessity, on the physical impossibility of the two men procreating a single heir. (Cp. Fearne, 9th edn., p. 35; ch. I (V; § 4, 5).) That doctrine and the specific reason for it are, therefore, singularly inept where the first takers are husband and wife. Happily, however, I am relieved of the necessity for considering whether or not to be guided by Romilly M.R. by the fact that the words which I have to construe are different from those which he puts in his supposititious case.
The expression “their and each of their heirs” is not unfamiliar in ill-drawn instruments. It may be (I know not) that in loose draftsmanship of this kind the writer uses the words elliptically and inaccurately to mean “their heirs and the heirs of each of them”; if so, that is not what he has said. The grammatical meaning of the words, as Mr. Vaughan Wilson points out, is plainly “the heirs of A. and B. and each of those heirs,” and I see no reason whatever in this particular deed for rejecting the grammatical, in favour of a conjectural meaning. The draftsman may have had in mind, in designating each of the heirs, the immediate heir-at-law, without realising that, if land descends to co-parceners, they “be but one heir to their ancestor,”but I cannot attribute any such notion to him if the word”heirs” designates, not individual persons, but a class, on the latter view, on the assumption that he had any clear notion in his mind, when he wrote down “each,” he may have been contemplating each unit in the line of legal successors, but every such unit is already necessarily implied in the word “heirs.” Now, it is, I think, beyond question that the word “heirs” in the limitation in this deed is a word of limitation, not a word of purchase; if so, the word describes the whole class of legal successors, the whole line which is to succeed, so that the Rule in Shelley’s Case must apply; the word does not designate the individual or particular person answering the description of heir at the death of the ancestor. (See Thomas’s note to Shelley’s Case, (1).) In my opinion, since the words “their and each of their heirs” are directed to a class of successors in law, the mention of “each” member of the class adds nothing (except a quite otiose emphasis) to the already complete category of “their heirs” and therefore it involves a redundancy. If that conclusion be correct, the construction of the deed will not be altered by the insertion of this pleonasm, and it makes a joint tenancy in fee simple.
The apparent ambiguity in such expressions as “to the right heirs of both” (husband and wife) and “to the right heirs of Walter Read and Mary his wife forever” was resolved in the eighteenth century in such cases as Roe v.Quartley (1), and Green v. King (2), by reference to the principle that in law husband and wife are one person. That unity of husband and wife strengthens the argument (if any corroboration be needed) for a joint tenancy in fee simple in the present case, for the Married Women’s Property Acts, while enabling a wife to take in joint tenancy with her husband: Thornley v. Thornley (3), have not abrogated existing principles of law in cases where their provisions do not apply, nor changed the wife’s legal position in respect of property, except by altering the wife’s right to property as between herself and her husband: Butler v. Butler (4); In re Jupp ; Jupp v. Buckwell (5), so that the Court should, I think, lean towards a construction which respects that unity. The purchase of the property, with the moneys of the husband, if (as I gather) they were his, in the joint names of husband and wife and a resultant joint tenancy in fee simple are, of course, entirely consistent with the presumption of advancement in favour of the wife. And, if we have inherited the traditional tendency of Courts of Equity towards tenancies in common, that consideration can have no weight as against the intrinsic force of the words that I have to construe; as Page Wood V.C. put it in Kenworthyv. Ward (6), where the Court finds slight words of intention of severance, the course is to act upon them, but, where the words are such as to create a joint tenancy, that must be taken to be the real intent of the conveyance, unless there is some distinct ground to prevent its operation. I see no such ground here. Accordingly, I hold that, upon the true construction of the conveyance of the 24th of August, 1934, the late George Ryan and his wife, the defendant Mrs. Sheila Ryan, acquired an estate in fee simple in joint tenancy. I may add that I have not required the infant heir of the late George Ryan to be made a party to this suit, because in my opinion such a proposition as that the heir takes by purchase under this deed would be quite unarguable.
Hunt v Luck
[1902] 1 Ch 428
Farwell J:
‘This doctrine of constructive notice, imputing as it does knowledge which the person affected does not actually possess, is one which the courts of late years have been unwilling to extend. I am not referring to cases where a man wilfully shuts his eyes so as to avoid notice but to cases like the present, where honest men are to be affected by knowledge which every one admits they did not in fact possess. So far as regards the merits of the case, even assuming both parties to the action to be equally innocent, the man who has been swindled by too great confidence in his own agent has surely less claim to the assistance of a court of equity than a purchaser for value who gets the legal estate, and pays his money without notice. Granted that the vendor has every reason to believe his agent an honest man, still, if he is mistaken and trusts a rogue, he, rather than the purchaser for value without notice who is misled by his having so trusted, ought to bear the burden.
… Constructive notice is the knowledge which the Courts impute to a person upon a presumption so strong of the existence of the knowledge that it cannot be allowed to be rebutted, either from his knowing something which ought to have put him to further inquiry or from his wilfully abstaining from inquiry, to avoid notice. How can I hold that the mortgagees here wilfully neglected to make some inquiry which is usual in cases of mortgages or sales of real estate in order to avoid acquiring some knowledge which they would thereby have obtained?’
‘If a purchaser or a mortgagee has notice that the vendor or mortgagor is not in possession of the property, he must make inquiries of the person in possession – of the tenant who is in possession – and find out from him what his rights are, and, if he does not choose to do that, then whatever title he acquires as purchaser or mortgagee will be subject to the title or right of the tenant in possession.’
Midland Bank Ltd v Farmpride Hatcheries Ltd
(1981) 260 EG 493 Court of Appeal (Oliver, Shaw and Buckley LLJ)
C
Shaw LJ:
[he had] ‘set up a smoke-screen designed to hide even the possible existence of some interest in himself which would derogate from the interest of the company ostensibly conferred by the mortgage … Mr W is estopped from setting up any facts which would go to show that he held an interest which overrides or stands in priority to their interest as mortgagees from the company.’
Oliver L J:
‘He does not thereby make any representation that his principal has an indefeasible title to the property offered as security. As to that the purchaser or mortgagee must satisfy himself by making the usual enquiries before he completes. But in negotiating on his principill’ s behalf he does, in my judgement, at least represent that he has his principal’s authority to offer the property free from any undisclosed adverse interest of his own. I would therefore be prepared to hold that the purchaser or mortgagee dealing with such an agent can reasonably assume that if the agent with whom he is dealing has himself an interest adverse to the title which he offers on his principal’s behalf, he will disclose it. It was reasonable for (the bank) not to make enquiry about an adverse interest if the negotiating agent which that agent’s own reticence entitled him to assume did not exist and (the Bank) did not, therefore, have constructive notice of it.’