Gifts With Conditions
Cases
Fitzsimons v. Fitzsimons
[1993] ILRM 478; [1992] 2 IR 295, Keane J
The testator died on 5 February 1986. He owned a farm of 176 acres in County Kildare and in 1985 he transferred a substantial part of it, amounting to 67 acres, to one of his sons who is the plaintiff in this special summons. The plaintiff has been farming those lands since then.
In his last will, dated 25 July 1986, the testator devised the remainder of the farm, amounting to 109 acres, to his executors and trustees upon the following trusts:
(i) UPON TRUST for my wife Kathleen for life and from and after her death;
(ii) UPON TRUST for my son, Patrick Junior, in fee simple, conditional upon *480 him being the beneficial owner for a like estate of the lands of Jigginstown transferred by me to him during my lifetime and in the event of my son, Patrick predeceasing my said wife or having sold the said lands transferred to him during my lifetime ….
There follow certain trusts which are to take effect in the events mentioned and which have no bearing on the issue that arises in these proceedings.
That issue is as to whether the plaintiff may sell part only of the lands given to him by the testator during his lifetime without forfeiting the devise in the will of the balance of the lands subject to the widow’s life interest. The question has arisen because the plaintiff has been made an offer for the sale of one and a half acres of the lands at present farmed by him which he wishes to accept, unless by so doing he will lose his interest in remainder.
Mr Fahy SC made two submissions on behalf of the plaintiff. First, he said that the condition was void as being a purported restraint on the alienation of the lands transferred to the plaintiff in 1985 which was repugnant to the estate in fee simple thereby granted. Secondly, he said that it was void for uncertainty in that it did not indicate whether the devise under the will would be forfeited by:
(a) a sale of part only of the lands, or
(b) a disposition of less than the entire beneficial interest, such as a mortgage of all or part of the lands.
Miss Butler on behalf of the defendants said that the adult beneficiaries had no objection to the proposed sale which, they accepted, would not be in conflict with the testator’s obvious intention that the devise in remainder to the plaintiff should fail only if he ceased farming the lands at present owned by him and sold all or a substantial part of them. However, on behalf of the first, second and third defendants, who were sued in their capacities as executors and trustees, she properly considered that she should make whatever submissions were appropriate in protection of the possible contingent interests of minor and unborn beneficiaries which might be affected by the construction of the will relied on by the plaintiff.
Miss Butler submitted, first, that the condition was not a restriction on the alienation of the lands at present owned by the plaintiff in fee simple. The will did not, and could not, impose any fetter on the alienation of those lands. There was nothing to prevent the plaintiff from selling the lands if he wished so to do. Accordingly, the case was not affected by the legal principles applicable where a testator or donor seeks to attach a condition to a gift or bequest which is inoperative as being a condition in restraint of alienation. Secondly, she submitted that the condition was not void for uncertainty. The words used by the testator (‘conditional upon him being the beneficial owner for a like estate of the lands of Jigginstown transferred by me to him during my lifetime’ and *481 ‘having sold the said lands transferred to him during my lifetime’) should be given their ordinary and natural meaning. The reference to ‘the lands of Jigginstown transferred by me’ is not ambiguous and means the entire lands. The use of the expression ‘beneficial owner’ and ‘sold’ was perfectly consistent with the plaintiff being in a position to mortgage or charge the said lands. The condition, accordingly, would take effect if there was a sale of the lands or any part thereof.
Counsel accepted that there was no authority in point. It seems to me that the submissions on behalf of the executors and trustees are correct and that the condition is neither repugnant to the estate granted nor void for uncertainty. First, it manifestly does not prevent the plaintiff from selling all or any part of the lands and, hence, cannot be regarded as equivalent to a similar condition imposed on a gift or devise of fee simple lands. Secondly, I am satisfied that it is not void for uncertainty. It is precise and unambiguous in its scope: it requires the plaintiff to be the beneficial owner of the lands transferred to him during the testator’s lifetime if he is to succeed in remainder to the balance. If one were to construe the clause as permitting the sale of part only of the lands, the question would immediately arise as to the extent to which any sale would be permissible under the terms of the will. On any view, the sale of a substantial part of the lands would be a breach of the condition. How then is one to determine the extent of a sale necessary to bring the condition into operation? The result would be to create rather than avoid uncertainty.
While there was evidence on affidavit as to the intention of the testator, I do not think it would materially assist the court in resolving the present issue and hence I do not need to embark on any consideration of whether it would be, in any event, admissible. One does not have to have regard to anything the testator may have said during his lifetime in order to ascertain what his intention probably was. He obviously did not wish a situation to arise in which the rest of the farm went to the plaintiff, although the lands at present farmed by him had been sold to a stranger. It is virtually certain that he would have been perfectly happy with the present proposal. However, in order to ensure that sales of the type now proposed could be made by the plaintiff, it would have been necessary for the testator to create a series of elaborate and precisely defined exceptions to the straightforward condition he chose to impose. It is perfectly understandable that neither he nor his solicitors considered that necessary or even desirable.
I will accordingly answer the questions in the special summons as follows:
(a) Yes. (b) No. (c) No. (d) No. (e) No.
Jameson v. McGovern.
Sullivan P. 770
Supreme Court
The decision in In re Bostock’s Settlement (1) was that the rule “equity follows the law,” is too deeply seated in antiquity to be disturbed, even if its application does violence to the regard for intention which so strongly characterises a Court of Equity. This attitude is incorrect. Courts of Equity have held an equitable estate in fee to be created from intention without words of inheritance, a condition which required for its creation in law a statute the Conveyancing Act of 1881 (44 & 45 Vict. c. 41). [They also referred to the Law of Property Act, 1925 (15 Geo. 5, c. 20), sect. 56, and In re Cross’s Trusts (2).]
Cur. adv. vult.
The judgment of the Court was delivered by Mr. Justice Murnaghan.
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.
In re Coghlan, Deceased.
[1963] IR 250
Motherway v. Coghlan and the Attorney General
Maguire C.J.
14. March
In this case Mr. Justice Dixon has held that the part of the condition in the will of the testator obliging the defendant to marry is not void and that the condition obliges him to marry within one year of the testator’s death. He also held that the condition which obliges the defendant to come and reside on the testator’s farm within one year from the date of the testator’s death is void for uncertainty. This latter finding is accepted. The Court is asked, however, to hold that the condition as regards marriage is void as being contrary to public policy. This submission is unsustainable. The only question which gives rise to any difficulty is whether the two conditions should be regarded as one, with the result that as part of the condition is void the other part must also be held to be void.
As Mr. Justice Dixon says, it is plain that the testator desired that “within a year of his death his nephew should not only marry but also take up his residence on the farm . . . There are two requirements, therefore, the non-fulfilment of which will work a forfeiture.” He states that the effect of his holding that the condition as to residence is void is that the will would then read as if the residence condition is eliminated from it. The marriage condition remained and if not fulfilled a forfeiture would take place. At the time the judgment was given there still remained a period during which the condition, viz., marriage within twelve months of the testator’s death, could have been fulfilledthat time has now elapsed. Accordingly, if the learned Judge’s view is right the gift over takes effect.
The appellant’s submission is that the two conditions should be treated as one and that the invalidity of a part affects the whole. No authority is cited which is of any help to the appellant. I agree that the desire of the testator was that both of the conditions should be fulfilled in order that the defendant should become entitled under his will. I do not think, however, that one can rely upon this when considering the position which has arisen when it is held that one of the conditions is void. The two conditions are separate and distinct. In my opinion the learned Judge was right in so holding.
The appeal should be dismissed.
Kingsmill Moore J. :
Thomas Coghlan, a farmer of Buttevant in County Cork, died on the 12th November, 1953, a widower, without ascendants or descendants him surviving. His estate consisted of deposit receipts to the amount of £568 7s. 8d. (which are subject to a claim that they were given as a donatio mortis causa), a farm of 63 acres, registered land, with a Poor Law Valuation of £41 10s. 0d., stock and machinery on the farm, and household effects in the farm house.
By his will, dated the 17th August, 1945, the testator appointed Cornelius Motherway to be his sole executor and trustee and, after making a devise and bequest in trust, devised and bequeathed the residue of his estate to his executor to be applied for the celebration of Masses.
The bequest was in the following terms:
“I give devise and bequeath my farm and dwelling with all stock thereon and all contents to my said trustee upon trust for my nephew John Coghlan, son of my brother John, provided my said nephew shall marry (if he be not married at my death) and come to reside there within one year from the date of my death, and in the event of my said nephew not marrying and coming to live there as aforesaid, in trust to sell said farm and house and all stock and contents and apply the proceeds of such sale for the celebration of Masses . . .”
The nephew, who was resident in Cork city and aged about 35, queried the validity of the conditions attached to the gift to him, and the executor accordingly brought a construction summons naming as defendants the nephew and the Attorney General.
Mr. Justice Dixon held that the condition as to residence was framed in too indefinite a manner and was void for uncertainty. Accordingly, being a condition subsequent, it was ineffective to deprive the nephew of the farm, if he chose not to comply with it. Against this portion of his decision there is no appeal.
He held, however, that the condition requiring marriage within the year was a separate and severable condition, to which there could be no legal objection, and that if the nephew did not marry within a year forfeiture would take place.
Against this latter part of the judgment the nephew, John Coghlan, appeals. The only argument adduced on his behalf which it is necessary to consider is the contention that, properly viewed, these are not two independent and severable conditions, but one composite condition, which I may call a condition of “married residence,” and that as the element of residence is bad for uncertainty the whole composite condition fails.
Certain points seem clear. The residence portion of the condition is bad for uncertainty: Sifton v. Sifton (1); Moffat v. McCleary (2). Both conditionsor the composite conditionare conditions subsequent, and conditions subsequent which would operate to defeat a vested estate are to be construed strictly.
“With regard to . . . conditions which are to have the effect of defeating a vested estate, it is a plain rule that such limitations must be construed strictly. That rule is one of very old standing”: Clavering v. Ellison (1), per Kindersley V.C., at p. 470.
“As conditions subsequent, to defeat vested estates they must be construed strictly, and to work a forfeiture there must be shown a breach of a defined line of conduct which the parties concerned must reasonably have known would work a forfeiture”: Clavering v. Ellison (2), per Lord Campbell at p. 721.
“The contingency . . . should be something definite and certain . . . so expressed as not to leave it in any degree doubtful or uncertain what the contingency is which is intended to defeat the prior estate”: Clavering v. Ellison (1)per Kindersley V.C., at p. 470.
“Where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine”: Clavering v. Ellison (2), at p. 725.
I cite these familiar passages for two reasons. First, to show that the condition as to residence was invalidas to which there is now no disputeand secondly, to show that if there be doubt as to whether the two conditions are entirely distinct (in which case non-marriage within the year would cause divesting) or are composite (in which case the composite condition would fail for indefiniteness) the doubt should be resolved in such a manner as not to involve divesting.
Grammatically the two conditions are severable, but this is not conclusive. In Duddy v. Gresham (3) a testator left property to his wife “on the condition that [she] shall retire immediately after my death into a convent of her own choice,”and, “she being bound to go into a convent, and not to marry as aforesaid.” His wife survived the testator for seventeen months, never re-married, but did not enter a convent. Morris C.J. considered the main object of the testator was that his wife should not marry again, and the clause as to retirement too uncertain. Christian L.J. thought that the direction to retire into a convent was subsidiary to a condition against re-marriage: that the condition against re-marriage failed as being in terrorem, and that it involved the subsidiary condition in its downfall. Deasy L.J. held the condition as to retirement void for uncertainty. Ball C., on the other hand, considered that the two conditions should be read together but in a sense contrary to that which appealed to Christian L.J. and amounted to a condition that the widow should become a nun. I cite the case as showing that it is permissible to construe conditions, in form severable, as being in effect unitary, or conjunct.
What was the object and intention of the testator in the will now before the Court? Undoubtedly he desired a member of the family to take up residence on the family farm, and he desired him to be married when he took up residence. Having regard to what we know of the prevalent desire among Irish countryfolk to preserve a family farm in the hands of the family it is, I think, a reasonable, if not an inevitable, conclusion that the testator inserted the condition as to marriage in order that, when his nephew took up residence on the farm he should beget children who, after his death, should still preserve the connection between the farm and the family. Can we assume that, if owing to the invalidity of the condition as to residence his nephew was not bound to go to reside on the farm but was free to dispose of it at once, the testator would have had any interest in whether he was married or not? Of course it never occurred to the testator that the condition as to residence could be invalid, and the Court is faced with the familiar difficulty of discovering the presumed intentions of a testator in an event which he never contemplated, by his expressed intentions in regard to events which he did contemplate but which have not come to pass. I can only say that it appears to me that the condition as to marriage was in all probability subsidiary to, and dependent on, the condition as to residence, and that if the condition as to residence fails for uncertainty the condition as to marriage fails also. In truth it is not two separate conditions, one good and one bad, but a composite condition which fails by reason of the failure of one of its component parts.
O’Dalaigh J. :
It is agreed that so much of the condition subsequent as refers to residence is bad for uncertainty; and the major question raised by the appeal is whether the remaining portion of it, referring to marriage, is also bad.
It is the appellant’s submission that the condition is a single condition, and being bad in part, that it must accordingly be regarded as bad in its entirety. The respondent disputes this submission and argues that the marriage clause is severablefrom the residence clause. Counsel have been unable to find any authority on the question at issue and the case therefore stands to be decided as a matter of construction. Did the testator desire to achieve two separate and distinct things (i) the marriage of his nephew and (ii) the nephew’s residence on the farm. I can find nothing in the will to indicate that the testator was concerned with either marriage or residencesimpliciter. It seems to me he wanted a man with a wife to take over his farm. I do not see two conditions, but a single condition, undoubtedly expressed in two clauses but so expressed only because of the exigencies of language. The clauses are so interlocked that one clause cannot be condemned without destroying the entire condition. It would in my opinion be contrary to the testator’s wishes to allow the marriage clause to stand alone; it must, I think, fall with the rest of the condition.
Accordingly I also would allow the appeal
Savage v Nolan
[1978] ILRM 151
Mr. Justice Costello
Firstly, it is important to observe that what the Court was doing was considering 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 (p. 770). It was urged on behalf of the plaintiffs in that case that, following Bostock’s Settlement,in the case of an executed declaration of trust the Court is precluded from considering the intention of the settlor and that the Court must construe a limitation in a trust in the same way as in the case of a legal estate executed and that therefore in the absence of words of limitation only a life estate was taken by the wife. After a lengthy review of the authorities Murnaghan, J. concluded that the decision in the Court of Appeal in Bostock’s Settlement should be followed and that accordingly the Court should not as a general rule consider the intention of the settlor but should in the absence of words of limitation, decide that the wife’s interest under the settlement was only a life estate.
In a passage towards the end of the judgment Murnaghan, J. adverted to a special feature of the case as follows:
“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: Nairm .v. Prowse (6 Ves 752). In my opinion in this case the wife has an equity independent 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 the should have in the events which have happened” (p.777-778).
Mr. Gill, on behalf of the plaintiffs, submitted that the passage which I have quoted makes clear that there may be exceptions to the general rule laid down in Bostock’s Settlement. He suggested that an exception arises when a settlement contains an agreement by virtue of which an equity arises (apart from the declaration of trust) by which a person entitled to the equity can have enforced an agreement to grant an equitable fee. Mr. Gill submits that I can apply this principle in the present case. He submits (1) that the settlor intended that the children of the marriage would take absolute interests and (2) that an enforceable agreement exists to that effect as the children of a marriage are persons within the marriage consideration (see Halsbury’s “Laws of England” 3rd Edition p. 459). In support of this submission he refers to Holliday .v. Overton (15 Beaven 480) in which the Master of the Rolls considered an argument that the children referred to in the instrument he was examining should be regarded as “purchasers” and that being purchasers a construction of the declaration of the trust was required which would vest the fee in the children without the necessity of employing any words of inheritance for this purpose. In that case the Master of the Rolls observed “if the children mentioned in this settlement could be considered as purchasers within the meaning of the word, as employed in these passages, some argument might be founded on those authorities”. Mr. Gill says that in the case before me the children of the marriage can be regarded as purchasers.
In my opinion the submissions made on behalf of the plaintiffs are correct. Firstly, the decision of the Supreme Court in Jameson .v. McGovern can only be interpreted as meaning that an exception to the strict rule in Bostock’s Settlement does exist when the settlement being construed contains an agreement to settle the lands referred to in the Deed on the wife of the intended marriage absolutely. Secondly, I am satisfied that the exception applies to the present case. I have already pointed out that the settlor intended that the children of the intended marriage would, in the events that have happened, take absolute interests – even though such express words were not employed. I accept that it is well established that the children of an intended marriage are within the consideration of the marriage and that accordingly the settlement constitutes an agreement which is enforceable by them by which they are entitled to absolute interests in the events that have happened. Just as the wife in Jameson .v. McGovern had an equity which would have allowed the Court to give effect to the intention of the settlor so, in the present case, the children of the marriage have a similar equity. In my opinion I am, not, therefore, required to follow the strict rule of law laid down in Bostock’s Settlement but I can decide that the settlement, in the events that have happened, has effectively vested an estate in fee simple in the plaintiffs and the defendent since the death of their mother on the 24th of January, 1973.
I will, in the light of the findings I have just made, consider submissions by the parties as to the form the Court’s Order should take.
Jameson v. McGovern. SC
[1934] IR 170 Sullivan P. 770
Supreme Court
The judgment of the Court was delivered by Mr. Justice Murnaghan.
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.
Corrigan v Corrigan
[2016] 3 IR 60,
Ms. Justice LaffoyIssues on the appeal
22
In the light of the findings of the trial judge and the remaining grounds of appeal, the issues on the appeal can be netted down to three issues. First, the core issue is whether the Testator intended that the disposition of the farmlands created in Clause 1 would be a determinable fee, as the trial judge found, as distinct from a fee simple upon condition. Secondly, if he did, it is necessary to consider whether, as a matter of law, as was found by the trial judge, the determining event is void for uncertainty. Thirdly, if the determining event is void for uncertainty, the remaining issue is to whom do the farmlands pass in accordance with the provisions of the Will as a whole and, in particular, do they fall in the residuary estate, as the trial judge held. Before addressing those issues, it is appropriate to make a number of general observations in relation to the application of the provisions of the Act of 1965.
23
First, s. 89 provides as follows:
‘Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.’
No contrary intention appears from the Will and, accordingly, Clause 1 must be construed having regard to the circumstances which prevailed on 5th March, 2000.
24
Secondly, in applying s. 90 and in determining whether the extrinsic evidence adduced on behalf of the Personal Representative, which has been outlined earlier, is admissible to show the intention of the Testator, as was found by the trial judge, the test to be applied is the test laid down by this Court in Rowe v. Law [1978] I.R. 55. The test as identified in the judgment of Henchy J. (at p. 72) has –
‘… the double requirement of
(a) showing the intention of a testator, and
(b) assisting in the construction of, or explaining any contradiction in, a will.’
(Emphasis as in original)
25
Thirdly, s. 91 provides that, unless a contrary intention appears from the will, any estate comprised in any devise contained in the will which fails or is void or is otherwise incapable of taking effect, shall be included in any residuary devise contained in the will. No contrary intention appears in the Testator’s Will.
26
Finally, the interest of the Testator in the farmlands at the date of his death was a fee simple interest and he was registered as full owner of the lands on Folio 13658, County Westmeath. Section 94 of the Act of 1965 provides:
‘Where real estate is devised to a person (including a trustee or executor) without any words of limitation, the devise shall be construed to pass the whole estate or interest which the testator had power to dispose of by will in the real estate, unless a contrary intention appears from the will.’
By virtue of the operation of s. 94, the fee simple passed to the Personal Representative on the death of the Testator. The issues of construction which arise relate to the beneficial interest or interests which the Testator intended to create in Clause 1 in the farmlands held by the Personal Representative on trust.
Determinable fee or Conditional fee: the law
27
In outlining the relevant legal principles applicable to this very arcane area of law, it is convenient to follow the format adopted in the most recent text on land law in this jurisdiction relied on by the parties, that is to say, Wylie on Irish Land Law 5th Ed. (Dublin, 2013).
28
In classifying the types of fee simple interests in land, Wylie identifies two main categories: a fee simple absolute and a modified fee simple, the latter category consisting of two types, namely, a determinable fee, and a fee simple upon condition.
29
As is explained by Wylie (at para. 4.47), a determinable fee is a fee simple which will determine automatically on the occurrence of an event which may or may not happen. In the case of a determinable fee the determining event is specified by the original grantor of the estate. The grantor retains some interest in the property, which is called a possibility of reverter, i.e. the possibility of acquiring an estate in the future. A fee simple upon condition, or a conditional fee, on the other hand, as is pointed out by Wylie (at para. 4.49) is a fee simple to which is attached a condition subsequent, which may cause the estate to be brought to an end. As Wylie points out (at para. 4.47), often it is a difficult matter of construction whether the estate is a determinable fee or a fee simple upon condition, emphasising also that the consequences and incidents of the estates are different. Wylie goes on to consider the distinction between the two estates, first by reference to how one recognises which estate is created by the wording used in the relevant deed or will, and then identifying the different rules applying to the two types of modified fee.
30
As to identifying whether a particular document creates a determinable fee or a fee simple upon a condition, Wylie points out (at para. 4.50) that this is largely a matter of the precise wording of the document. From a theoretical standpoint, the position is clear: in the case of a determinable fee the words describing the determining event are part of the words of limitation, i.e., they delimit the estate granted. In the case of a fee simple upon a condition, however, the words containing the condition are not part of the words of limitation, but rather are independent words of condition, which confer a right of entry on the grantor or his successor, which must be exercised to determine the fee simple. In relation to deciding the effect of the particular words used in a particular document, which Wylie acknowledges is not always an easy problem to solve, he states as follows (at para. 4.50):
‘The courts have adopted over the years some “rules of thumb” whereby particular words or phrases are taken to indicate one type of estate rather than another. Thus words like “while”, “during”, “until” and “as long as” tend to be interpreted as words of limitation creating a determinable fee; words like “provided that”, “on condition that” and “but if” are usually taken to mean words of condition.’
Attorney General v. Cummins’ Ors. [1906] 1 I.R. 406 is cited as authority for the statement that the first group of words referred to tend to be interpreted as words of limitation creating a determinable fee. That authority will be considered later.
31
Turning to the distinguishing features in relation to determination (that is to say, the end point) of each of the modified fees, Wylie points out (at para. 4.51) that, in the case of a determinable fee, when the specified event occurs, the fee simple comes to its natural determination according to the words of limitation, and the possibility of reverter takes effect automatically to confer the fee simple absolute on the grantor (or his successor, if he has since died). On the other hand, in the case of a fee simple upon a condition, the occurrence of the specified event, or satisfaction or breach of the condition, merely gives the grantor a right of entry so as to forfeit the grantee’s estate.
32
Of more particular significance for present purposes is Wylie’s commentary on the approach of the courts to a determinable fee and a fee simple upon condition having regard to matters of public policy. As Wylie points out (at para. 4.54), the courts will treat as invalid any condition which is illegal, immoral, a violation of constitutional rights under the Constitution or which otherwise contravenes what they regard as public policy. Moreover, it is clear that a condition may be declared void for uncertainty. If a condition subsequent is void for uncertainty, or as being contrary to constitutional rights or public policy, the fee simple becomes a fee simple absolute and, as is explained, only the condition fails and the fee simple itself remains in effect, provided it is conveyed with appropriate words of limitation. However, the contrary is the position in the rare case of a limitation in a grant of a determinable fee being held void as against public policy. In such case, the words of limitation themselves are defective and so fail to pass the fee simple; the whole grant is ineffective and the grantee is left with nothing. Although not expressly mentioned by Wylie in this context, by analogy the same principle obviously applies where the determining event is void for uncertainty. It is convenient at this juncture to consider the only authorities to which this Court has been referred in which a finding of a determinable fee was made by a court.
33
While the decision in Attorney General v. Cummins dates from 1895 it was reported in 1906 as an addendum to Switzer v. Rochford [1906] 1 I.R. 399. The dispute in Attorney General v. Cummins concerned the effect of letters patent whereby King Charles II granted to the Earl of Castlehaven specified quit rents ‘to hold the same to the [E]arl, his heirs and assigns, till he or they should receive and be paid the sum of £5,000 sterling at one entire payment’. The application before the court in 1895 was an application by the Attorney General seeking that the Crown should be at liberty to redeem the quit rents by paying £5,000 and that the Crown be at liberty to pay that sum into court. In his judgment Palles C.B. held that the estate created was a determinable fee. He stated as follows (at p. 406):
‘The grant passed the quit rents in fee subject to a condition determining that fee upon payment by the Crown at any time of the sum of £5,000. Under such a grant the grantee, until the happening of the determining event, has the whole estate in him, and the old Common Law doctrine was undoubtedly that a possibility of reverter, a possibility coupled with an interest, remained in the grantor, and that the fee of the rents would, upon performance of the condition, revert to the Crown. “If,” says Plowden (p. 557), “land is given to a man and to his heirs so long as he shall pay 20s. annually to A, or as long as the Church of St. Paul shall stand, his estate is a fee-simple determinable, in which case he has the whole estate in him, and such perpetuity of an estate which may continue forever, though, at the same time there is a contingency which when it happens will determine the estate”.’
34
There was a dispute in Attorney General v. Cummins as to whether the common law doctrine which was outlined in that passage still prevailed, notwithstanding the modern rule against perpetuities. The court rejected the arguments advanced on behalf of the defendants that the rule against perpetuities applied and defeated the estate of the Crown. In a passage on which the Appellant relies, Palles C.B. stated (at p. 409):
‘Now, there is not a trace in the books of any rule which limited the period during which the determination of an estate by condition should take effect, and it is abundantly clear that the modern rule could not have applied, because the donor took not by way of new limitation, but by the determination of the estate given.’
35
One other authority in which a finding of a determinable fee was made has been put before the Court, but that authority – In re King’s Trusts (1892) 29 LR Ir. 401– is more renowned for the observations of Porter M.R. than for the finding on the facts. There the testatrix by her will bequeathed an annuity of £50 per annum to each of the five children of her deceased brother and directed that the said several annuities should be payable half-yearly from the date of her decease, for their respective lives, or until any of them should marry, and that, on the death or marriage of any of the said children of her deceased brother, the annuity to any such child should cease and determine. It was held that the proviso determining the annuities on death or marriage was a limitation and not a condition subsequent or defeasance. In the oft-quoted passage (at p. 410) Porter M.R. stated:
‘The case is an instance of the very unsatisfactory state of the law on this question. It is little short of disgraceful to our jurisprudence that in reference to a rule professedly founded on considerations of public policy, a gift of an annuity to AB for life, coupled with a proviso that if he married the annuity should cease, whether there be a gift over or not, gives AB a life estate, whether he marries or not; while a gift to CD until he marries or dies, with a gift over, is at an end if CD should marry. The distinction is intelligible to a lawyer; but no testator except a lawyer could be expected to understand it, much less to have regard to it in framing his will. We must, however, take the law as we find it.’
36
In Pearce and Mee ( op. cit.) (at p. 78) that passage is referred to in the context of stating that the distinction between a determining event and a condition subsequent is very narrow. The authors also refer in that context to Re Sharp’s Settlement Trusts [1972] 3 All ER 151. There, delivering judgment in the Chancery Division of the English High Court, Pennycuick V-C referred to the description ‘in an Irish case’ of the distinction as ‘little short of disgraceful to our jurisprudence’ and he continued (at p. 156):
‘I am bound to say that according to modern ideas this criticism appeals to me. However, the distinction is well established and must be accepted so far as it is comprehensible.’
Allowing Wylie the last word on the observations of Porter M.R., it is suggested (at para. 4.50) that the Master of the Rolls seems to have had in mind wills, which the court usually interprets more liberally than conveyances inter vivos, but the author goes on to state:
‘But however nonsensical the distinction may appear to the layman the fact remains that much depends upon it. The legal system has devised different rules with respect to the two estates …’
Determinable fee or Conditional fee: application of the law to Clause 1 of the Will
37
Reading Clause 1 of the Will, being, to use the words of Lowry L.C.J., ‘the immediately relevant portion’ thereof, in his words as ‘a piece of English’, in the first step of the procedure advocated by him, with a view to deciding ‘if possible, what it means’, Clause 1 starts with an introduction or preamble which contains a description of the property the subject of the disposition in Clause 1, the farmlands, and a statement of what the Testator had been advised as to the zoning status of all or part of the farmlands. On a plain reading of the introduction, it was clearly intended merely to describe the property being disposed of under Clause 1 and it was not intended to be a dispositive provision. The actual disposition of the farmlands follows. As regards the beneficial interest or interests intended to be created, it is helpful to consider the disposition by reference to the two elements embodied in it.
38
The words contained in Clause 1 intended to create the beneficial interest or interests follow the direction given by the Testator to the Personal Representative to hold the farmlands upon ‘the following trusts’. The first element directs the Personal Representative to allow the Appellant ‘to hold and enjoy the profits of the [farmlands] for his own benefit until’ the happening of a specified event. Those words are properly construed as having been intended to be words of limitation, not in a technical sense, but in the sense that they were intended to delimit the duration of the Appellant’s beneficial interest. Accordingly, those words must be construed as having been intended to create a determinable fee. Despite the approach adopted in the grounds of appeal, on the hearing of the appeal on 14th July, 2016, the Appellant accepted that the words in Clause 1 do create a determinable fee, but he argued that the determining event is not void for uncertainty.
39
It was not argued by the Appellant on the hearing of the appeal that the Court should look to the instructions given by the Testator to his solicitor for assistance in the construction of that element of Clause 1. Indeed, as outlined earlier, it was asserted in the grounds of appeal that the trial judge had erred in admitting the attendance notes. Being conscious, however, of the fact that the instruction given by the Testator to his solicitor, as recorded by the solicitor, was that the farmlands were to go to the Appellant, but that was qualified by the happening of an event which was introduced by the phrase ‘but if’, which traditionally has been treated as a phrase giving rise to a condition, for completeness, I propose to consider whether the Court should have regard to the wording of the instruction in the attendance notes under s. 90 of the Act of 1965 in construing the first element. That raises the question whether the second requirement in the test set out in Rowe v. Law is met. In other words, do the contents of the attendance note assist in the construction of, or explain any contradiction in, that element of the disposition? There is no suggestion of there being, and there is not, a contradiction in the first element of the beneficial provisions of Clause 1, which is being considered. The question remains whether the contents of the attendance notes would assist in the construction of Clause 1. In my view, they would not. The element of Clause 1 which is being addressed is open to only one construction: that the interest thereby granted to the Appellant would endure until the happening of the specified event. To substitute the phrase ‘but if’ for the word ‘until’ in Clause 1 would amount to more than the construction of the will. It would amount to a re-writing of it, which is not permissible. Accordingly, the first element of the beneficial provisions of Clause 1 must be construed as being intended to create a determinable fee.
40
However, it remains to consider the second element of the beneficial provisions, which is the remainder of Clause 1, and which defines the determining event by reference to the words which follow the word ‘until’. The issue of construction which arises in relation to the second element is whether the trial judge was correct in finding that the determining event is void for uncertainty.
Determining event void for uncertainty?
41
There is no doubt but that the Testator prefaced the disposition of the farmlands in Clause 1 by an equivocal and incorrect statement of fact in relation to the zoning status of the farmlands. The affidavit of Ms. Fahy established that on 5th March, 2000 neither all of the lands registered on Folio 13658, County Westmeath nor any part thereof was zoned ‘for residential and/or industrial development’. However, on a plain reading of the words of Clause 1 of the Will, the determining event was not related to the existing or future zoning of the farmlands. It was specifically related to and dependent on ‘acquisition’ of the farmlands ‘for residential and/or industrial development’. As the Appellant put it on the hearing of the appeal, it was the acquisition, not the zoning, of the farmlands which had the ‘triggering effect’. The trial judge in his judgment highlighted the problem created by the use of the words ‘acquisition’ and later the words ‘not so acquired’ in that context. He rightly pointed out that it is unclear whether the Testator had in mind the farmlands being compulsorily acquired for the purposes mentioned or whether he had in mind the children of the Testator, other than the Appellant, being in a position to compel the executors to sell the farmlands. Another question which arises from the use of those words is whether the Testator intended the determining event to be a single acquisition or, possibly, a series of acquisitions.
42
This Court has been referred to quite a number of authorities in which consideration was given to whether part of a limiting or provisional clause in a will was void for uncertainty, the clause in issue in most of the cases, predictably, being a condition subsequent. As Wylie points out (at para. 4.54), where non-compliance will involve forfeiture of an already vested estate, courts will require sufficient certainty that it can be seen precisely and distinctly from the date of the condition coming into operation what events will cause a forfeiture. The earliest authority cited by Wylie for that proposition, Clavering v. Ellison (1859) 7 HLC 707, is frequently cited and the following passage from the opinion of Lord Cranworth (at p. 725) is frequently quoted:
‘I consider that, from the earliest times, one of the cardinal rules on the subject has been this: that where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.’
43
By analogy, where a fee simple is to be automatically determined by the happening of a specified determining event, as a matter of construction, when that event may happen must be ascertainable from the beginning, precisely and distinctly.
44
Reading the words which come after the word ‘until’ and define the determining event in Clause 1, no certainty can be gleaned, whether conceptually or otherwise, as to when the determining event may occur, and, adopting the words of Pearce and Mee quoted above (at para. 13) there is ambiguity in the description of the determining event. Apart from uncertainty as to what constitutes ‘acquisition’, the uncertainty is aggravated by the fact that in the last sentence in Clause 1 there is uncertainty as to how frequently the Testator intended that a determining acquisition could occur. The precision and distinctness from the beginning as to the happening of the determining event, which Lord Cranworth considered necessary, is definitely absent. Accordingly, having regard to the words used in the Will, the provision in relation to the definition of the determining event in Clause 1 is void for uncertainty and the entire disposition is thus rendered void.
45
For completeness, I would add that the instructions given by the Testator to his solicitor, as recorded in the attendance notes, do not explain any contradiction as to when the determining event would occur, nor do they assist in construing that element of the beneficial provisions of Clause 1, with a view to ascertaining when the determining event intended by the Testator would occur. On the contrary, as the words used in the attendance notes to record the instructions differ from the words deployed in the Will, consideration of the instructions in the attendance notes adds to, rather than eliminates, the uncertainty in the Will. The following examples illustrate that. First, rather than the words ‘acquisition’ and ‘not so acquired’ in the Will, the attendance notes contain the word ‘sold’. Secondly, whereas the Will refers to acquisition for ‘residential and/or industrial development’, the attendance notes refer to the farmlands being sold for ‘residential or commercial purposes’. Thirdly, while the Will refers to any section of the farmlands ‘not so acquired’ becoming the absolute property of the Appellant, the attendance notes refer to the Appellant keeping ‘what is not required for residential purposes’. The Testator, having had the opportunity to consider the draft will which accompanied the letter of 28th August, 1997, made one single amendment to Clause 1 of the draft, which has been outlined earlier. Having regard to all of the foregoing factors, it cannot be concluded that the instructions received by the solicitor from the Testator, as recorded in the attendance notes, assist in any way in clarifying the Testator’s intention as to when the determining event provided for in Clause 1 would occur and they are irrelevant to the construction of Clause 1.
46
..
Consequence of findings
52
The consequence of the findings that Clause 1 created a determinable fee but the determining event is void for uncertainty is that the devise of the lands registered on Folio 13658, County Westmeath contained in Clause 1 has no effect. Therefore, the devise intended to be created in Clause 1 being incapable of taking effect, by virtue of s. 91 of the Act of 1965, those lands fall into the residue and are held by the Personal Representative on trust for the Residuary Legatee.
Order
53
I would propose that there should be an order dismissing the Appellant’s appeal. I think that it would be prudent if the order were to include declarations to the following effect:
(a) that the intention of the Testator by the words used in Clause 1 of the Will was to create a determinable fee in relation to the lands registered on Folio 13658, County Westmeath;
(b) that the determining event which the Testator intended to apply to the determinable fee is unclear and imprecise and that the determining event is void for uncertainty; and
(c) that the Personal Representative holds the said lands upon trust for the Residuary Legatee.
As declarations in the foregoing terms address of the all relevant issues on the construction of the Will, I consider it unnecessary for this Court to answer all of the questions posed in the special summons.
Clayton’s Deed Poll, Re
[1980] Ch 99; [1979] 3 WLR 351 Chancery Division (Whitford J)
‘3(3) Where, by reason of a statutory or other right of reverter, or of an equitable right of entry taking effect, or for any other reason, a person becomes entitled to require a legal estate to be vested in him, then and in any such case the estate owner whose estate is affected shall be bound to convey or create such legal estate as the case may require.’