Conditional Estates
Cases
Estate of Dunne Deceased; Le Blanc
[1988] IR 155, O’Hanlon J
1st July 1988
David Dunne, the deceased named in the title of these proceedings, died on the 15th October, 1986, having made his last will dated the 30th March, 1984, whereby he gave, devised and bequeathed all his property, both real and personal, to the applicant, Samuel Le Blanc, and his wife, Nuala, for their own use.
The gift, however, was a conditional one. The will recites that it is made”subject only to the condition that my dwelling house and lands or any part thereof shall not be sold or otherwise conveyed or transferred by them or either of them, their successors or assigns, to any member of the Meredith families of O’Moore’s Forest, Mountmellick.”
The applicant, who is the executor of the estate of the testator, asks the court to decide whether the condition imposed by the will is valid, and therefore registrable on the folio of the register of freeholders on which the title to the testator’s lands is registered.
The general principles applicable in determining this issue are set forth clearly and succinctly in Professor Wylie’s work on Irish Land Law (2nd ed., 1986) p. 186 at par. 4.054. The author states:
“It has been a matter of general policy of our land law from the earliest days that freehold land should be freely alienable. As far as the fee simple is concerned, this general principle was enshrined in Quia Emptores, 1290. It is clear that an attempt to impose a condition in total restriction on alienation by the grantee of a fee simple is void. Where the condition is not a total restriction, it is a question for the court as a matter of public policy whether it is so restrictive as to be void. In deciding this the court has to balance the competing interests of free disposition of property by grantors and the general policy of ensuring marketability of freehold land.”
The principles applicable were considered in Billing v. Welch (1871) I.R. 6 C.L. 88, where O’Brien J. said (at p. 101 of the report):
“The general principles upon which covenants against alienation contained in a deed granting lands in fee simple are held to be void, as being repugnant to the estate granted by that deed, are laid down in several passages of Sheppard’s Touchstone, vol. i, pp. 129 and 130 (Preston’s Edition). In p. 129, it is stated that no condition or limitation, whether by act executed, limitation of use, or devise, that contains in it matter repugnant to the estate, is good. It is true (as stated in pp. 129 and 130) that if a feoffment or other conveyance be made of land, upon condition that the feoffee or grantee should not alien to certain persons, such condition would be good; but the author adds (p. 130), that if the condition be that the feoffee or grantee should not alien the thing granted to any person whatsoever . . . such a condition is void . . . as repugnant to the estate.”
That statement of the law would appear to support the validity of what was done by the testator in the present case. I would have reservations, however, about the consistency with public policy of incorporating conditions in the grant or devise of freehold property, the obvious purpose of which is to perpetuate old resentments and antagonisms and bind the grantee or devisee to bear them in mind and give effect to them when contemplating any further disposition of the property. This is particularly so when, as in the present case, the grantor or testator seeks to bind by the condition imposed, not merely the grantee or devisee but his or her successors and assigns as well – apparently for all time in the future.
A further element of doubt is raised by the description of the persons against whom the testator’s antagonism is directed. He refers to “any member of the Meredith families of O’Moore’s Forest, Mountmellick”. As the condition is intended to bind the successors and assigns of the devisees for the future, it would appear to create an obligation to identify any future grantee of the lands as not belonging to the families in question. At what stage does one cease to be a member of those families – by departure from the area or otherwise? Abraham was told that his descendants would be as numerous as the stars in heaven and the sands on the sea-shore. Hundreds of years later the Jews were to say, “We have Abraham for our father”. I find it impossible to say with any degree of certainty at what time in the future, and by that combination of circumstances, a descendant of the present Meredith families of O’Moore’s Forest, Mountmellick, could be regarded as no longer belonging to the category described by the testator.
On these two grounds, first, the inconsistency with public policy of seeking to perpetuate old family divisions and carry them forward into future generations who may occupy the lands after the death of the testator, and secondly, on the ground of vagueness and uncertainty as to the nature and extent of the obligation sought to be imposed on the devisees, their successors and assigns, I find the condition referred to in the will invalid and void for uncertainty and direct that the title should be registered without including in the registration any reference to the condition in question.
In In re Fitzgibbon deceased
: Mackessy v Fitzgibbon [1993] 1 IR 520
Carroll J.
30th July 1992
The testator John J. Fitzgibbon by his will dated the 19th February, 1990, appointed the plaintiff as his executrix and made the following devise and bequest:
“I leave devise and bequeath my farm of land at Clouncourivane together with dwelling house and out-office, cattle and stock, goods and chattels therein and thereon to my grand-nephew Mark Fitzgibbon son of my nephew Joe Fitzgibbon of Carlow provided he lives and works on the land but if he does not then I leave my land together with dwelling house and out-office and all goods and chattels, cattle and stock to my niece Mrs. Cora Mullane absolutely.”
He then made a number of pecuniary legacies. There was no residuary clause. He died on the 31st March, 1990, and probate was granted to the plaintiff on the 10th December, 1990. She has brought a construction summons to construe the will. The beneficiary Mark Fitzgibbon was a minor at the date of the testator’s death, having been born on the 29th August, 1973. He is now of full age. The testator left a net estate of about £196,000.
In construing this will there are certain principles of law to be applied. Firstly there is a presumption in favour of early vesting; if there is a doubt about whether a condition is precedent or subsequent, the court prima facie treats it as subsequent. Secondly, where a vested estate is to be defeated by a condition on a contingency that is to happen subsequently, the 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 determinesee Sifton v. Sifton [1938] A.C. 656.
Here there are two elements to the condition “provided he lives and works on the land” and there are two questions to be answered:
1. Is the condition a condition precedent or subsequent; and
2. Is the condition void for uncertainty?
I am satisfied the condition is a condition subsequent. It provides for two requirements which if they are not fulfilled would lead to a forfeiture. Accordingly the condition is a condition subsequent.
As to whether the composite condition, “living and working”, is void for uncertainty, an examination of some decided cases is of help.
In In re Hennessy deceased (1963) 98 I.L.T.R. 39 there was a devise of land to a son:
“if he wishes to farm it and carry on same as he thinks best, if not to my daughter Yvonne. If either my son or my daughter do not survive or wish to carry on the farm I wish it to go to my brother J.H. for one of his sons.”
The condition as to farming was held by Budd J. to be a condition subsequent void for uncertainty. He said at p. 45 that he found it impossible to say with any degree of certainty what was the meaning of the words “to farm it and carry on same as he thinks best”.
“Is it meant that the beneficiary must farm himself as it were with his own hands personally or is it sufficient if he or she farms through an agent or indeed lets the lands in grazing or conacre. It is sufficient in the circumstances to say it is not clear precisely what is meant and it is therefore not possible to say upon the happening of what event the estate given would determine. In my view therefore the condition as to farming is void for uncertainty.”
In Sifton v. Sifton [1938] A.C. 656 a provision in a will that payments be made “only so long as she shall continue to reside in Canada” was held to be void for uncertainty. In a decision of the House of Lords, Lord Romer said at page 675:
“Their Lordships’ attention was called during the arguments to numerous authorities in which the court has been called upon to consider the meaning of the words “reside” and “residence”, and the like. But these authorities give their Lordships no assistance in construing the present will. The meaning of such words obviously depends upon the context in which the words are used. A condition, for instance, attached to the devise of a house that the devisee should reside in the house for at least six weeks in a year can present no difficulty. In some contexts the word “reside” may clearly denote what is sometimes called “being in residence” at a particular house. In other contexts it may mean merely maintaining a house in a fit state for residence. It is plain, however, that in the present case the word “reside” means something different from either being in residence or merely maintaining a residence. No one can suppose that the testator intended either that his daughter should never leave Canada, or that so long as she maintained a residence in Canada she might spend the whole of her time abroad. He must have intended that, though Canada was to be her home in general, yet she was to be at liberty to leave Canada for some purposes and for some periods of time. Unfortunately, he omitted to define either the purposes or the periods. The result is that the majority of the Court of Appeal have found themselves unable to give any more precise direction than that the appellant may leave Canada for a limited period and for a purely temporary purpose, without being able to define either the word “limited” or the word “temporary”.It necessarily followed that they, in common with Middleton J.A., were of opinion that the questions propounded in the trustees’ notice of motion do not at present admit of categorical answers. Their Lordships are of the same opinion. But if the appellant’s interest under the will is to be forfeited upon her “ceasing to reside in Canada,” she has a right to have those questions categorically answered; and inasmuch as they cannot be so answered, the words, if constituting a condition subsequent, are void for uncertainty.”
In Moffatt v. McCleary [1923] 1 I.R. 16 a bequest “to my brother provided he or any of his sons come to live at Magherahan within one year of my death” was held to be void for uncertainty. Lord Justice Moore said at page 20:
“The provision about living at Magherahan being indefinite as to whether living for an unascertained period, or for the whole existence of Alexander, and whether for actual or merely constructive residence, is too vague to be enforced and is void for uncertainty.”
Motherway v. Coghlan (1956) 98 I.L.T.R. 134 concerned a condition in a will, “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”. The residence requirement was held to be void for uncertainty.
While a will cannot be construed by looking at another will and each will must be construed as a whole in its own context, these decided cases are helpful. I find that the condition “provided he lives and works on the land” is void for uncertainty on the same line of reasoning as in the cases cited. A beneficiary is entitled to know on what conditions his vested estate is liable to be divested. In this case the testator has been too vague and accordingly the condition is void for uncertainty both as to living and working on the lands. Since the devise and bequest is subject to a condition subsequent which is void for uncertainty it follows that the first defendant is entitled absolutely. The questions in the construction summons and the answers are as follows:
1. Is the bequest by the testator to the first defendant of the testator’s farm at Clouncourivane together with the dwelling house and out-office, cattle and stock, goods and chattels therein and thereon void for uncertainty?
Answer: No.
2. Is the condition whereby the first defendant is required to live and work on the said land contained in the said bequest void for uncertainty?
Answer: Yes.
Here I find it necessary for the sake of clarity to add in an additional question.
2. (a) If the answer to question 2 is in the affirmative, is the first defendant entitled absolutely to the said bequest?
Answer: Yes.
3. Is the effect of the said bequest that the said lands shall remain vested in the first defendant for only so long as he shall live and work on them?
Answer: No.
Questions 4, 5 and 6 do not arise.
7. (a) Does the expression “goods and chattels” as used by the testator in the said bequest include all the personal estate of the testator?
Answer: No.
(b) Alternatively the plaintiff seeks the construction by the Honourable Court of the said expression.
Answer: It includes goods and chattels in and on the farm of land. A construction of the same words in the gift over to the second defendant does not arise.
8. Given that there is no residuary clause in the said will of the said John J. Fitzgibbon ought the undisposed residue be distributed in accordance with the provisions of the Succession Act, 1965?
Answer: Yes.
9. Is the undisposed residue of the estate of the deceased John J. Fitzgibbon covered by the expression “goods and chattels”mentioned in paragraph 7 (a) herein?
Answer: Not insofar as it concerned the bequest to the first defendant.
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.
Corrigan -v- Corrigan & anor
[2016] IESC 56 (05 October 2016)
Judgment of Ms. Justice Laffoy delivered on 5th day of October, 2016
Factual and procedural background
1. The High Court proceedings which are the subject of this appeal (Record No. 2006 No. 64SP) were initiated by a special summons issued on 21st March, 2006 seeking to have the will of Christopher Corrigan (the Testator) construed by the Court.
2. The Testator made his last will and testament (the Will) on 23rd September, 1997. He appointed as his executors three of his sons, named as “Eamonn, Owen and Sean”, all of whom are parties to this appeal. Having directed his executors to pay his debts, funeral and testamentary expenses as soon as possible after his death, he went on to make “the following dispositions of my property”. Three clauses follow, Clause 1 being the clause which the High Court was asked to construe.
3. Clause 1 of the Will in its entirety provides as follows:
“I have 21 statute acres of land in Folio 13658 Co. Westmeath and I have been advised that the said land or part thereof is zoned for residential and/or industrial development. I direct my Executors to hold the lands upon the following trusts: –
(a) To allow my son Sean to hold and enjoy the profits of the lands for his own benefit until there is acquisition of my lands for the purposes mentioned above. In such event, the net proceeds of the sale of my lands shall be divided equally amongst all my children and any section of the farm not so acquired shall become the absolute property of my son Sean”.
The Testator was survived by five children, his sons Eamonn, Eoin (otherwise Owen) and Sean and by another son, Thomas, and a daughter, Angela.
4. The remainder of the Will is to be found in Clause 2 and Clause 3. Clause 2 deals with what the Testator referred to as “my residence situate on half an acre registered on Folio 18004 County Westmeath”. As to that property, Clause 2 provides:
“. . . I direct as follows –
(a) If any one of my three Executors wish with the consent of the other two, to own the said house, then my Executors can vest it in such son so as to make him full owner of same but on terms that the son who gets the house will sell his own residence and the net proceeds of such sale shall be paid to my Executors and it is to be then divided amongst my other four children equally.
(b) If no agreement is reached by my three Executors and if none of them desire to own my residence, then it can be sold by Public Auction or by Private Treaty as my Executors shall decide and the net proceeds of sale in such event, I bequeath to my children, Eamonn, Owen, Thomas and Angela in equal shares.”
Clause 3 deals with the Testator’s residuary estate and provides:
“I leave my residuary estate of every kind to my son Owen for his use and benefit”. While no issue arises in the proceedings as to the proper construction of either Clause 2 or Clause 3 per se, the provisions of those clauses have been outlined because one of the grounds of appeal is that the High Court failed to interpret the Will as a whole to give effect to the Testator’s intentions. Taking a broad view of it, the Will as a whole demonstrates that the obvious objective of the Testator was to treat his five children fairly. However, it must be emphasised that the function of the Court in construing Clause 1 of the Will is to ascertain the Testator’s intention from the words used by him in the Will.
5. The Testator died on 5th March, 2000. On 10th January, 2002 probate of the Will issued to two of his sons whom he had named as executors, Eamonn (the Personal Representative) and Eoin (otherwise Owen) (the Residuary Legatee), the third son named as executor, Sean (the Appellant), having renounced his right to probate. Subsequently, when the issue as to the construction of Clause 1 of the Will arose, the Residuary Legatee, with the leave of the High Court, renounced his right to act as executor of the estate of the Testator. The position thereafter was that the Personal Representative was sole personal representative of the unadministered estate of the Testator. The dispute in relation to the testamentary disposition of the property the subject of Clause 1 of the Will, which is hereinafter referred to as “the farmlands” to distinguish it from the house and lands the subject of Clause 2, was a dispute in which, as counsel for the Personal Representative submitted, the Appellant and the Residuary Legatee were “the real legitimus contradictors”. The Personal Representative, in that capacity, properly initiated the proceedings to have Clause 1 of the Will construed by the High Court.
6. The affidavit evidence put by the Personal Representative before the Court addressed two factual matters which were called in aid in relation to the construction of Clause 1 of the Will.
7. The first factual matter was the instructions given by the Testator to the solicitor who drafted the Will, Kevin P. Wallace (Mr. Wallace), a solicitor in the firm N. J. Downes & Co. When the grounding affidavit of the Personal Representative was sworn, Mr. Wallace was deceased. However, the Personal Representative exhibited –
(a) what were described as “the attendance notes (in hand-written and typed form) dated 26th August, 1997”, and
(b) a letter to the Testator from Mr. Wallace, and
(c) “a draft copy of the will showing one alteration by the [Testator] to its contents”.
8. Those exhibits disclose the following:
(a) The attendance notes record that, in giving instructions to his solicitor on 26th August, 1997, the Testator identified his children, two of whom, who are not named as executors in his will, Thomas and Angela, were then in Australia. In relation to the Appellant, he informed the solicitor that he was involved in panel-beating and used the Testator’s shed. The Testator described his assets as –
(i) “Farm”, which was described as “zoned for residential”, and
(ii) the house, and
(iii) a credit union account.
The “Farm” and the house were described as being on two separate folios. The instructions given as to the dispositions the Testator intended to make separately itemised the “Farm”, the residence and contents, and the residue. In relation to the “Farm” the instruction given is recorded as follows:
“Farm to Sean, but if any is sold for residential or commercial purposes then it’s to be divided between all children equally. Sean can keep what is not required for residential purposes, all 5 to share in such sale money.”
(b) The letter from the solicitor to the Testator was dated 28th August, 1997. It obviously enclosed a draft will. The Testator was asked to check it carefully and “to drop in” to the solicitor when convenient.
(c) The alteration made by the deceased to the draft will was made to the part of Clause 1 which had been drafted as follows:
“. . . I have been advised that the said land or part thereof will be zoned for residential and/or industrial development.”
The word “will” was crossed out and the word “is” was put in manuscript over it. In fact, as is clear from Clause 1 of the Will in its final form, as quoted above, which was executed just short of a month later, the words “is zoned” were substituted for the words “will be zoned” in the Will.
9. The second factual matter was the zoning status of the farmlands at the date of the Will, at the date of the Testator’s death, and when the proceedings were proceeding through the High Court. In an affidavit sworn on 30th April, 2007 by Geraldine Fahy, Planning Consultant, it was averred that –
(a) the farmlands were zoned agricultural as at 23rd September, 1997, the date on which the Testator executed the Will, and as at 5th March, 2000, the date of the Testator’s death; and
(b) the farmlands were rezoned in 2005 under the Robinstown Local Area Plan, with the result that –
(i) an area measuring 0.229 acres was un-zoned;
(ii) an area measuring 16.850 acres was zoned special district; and
(iii) an area measuring 3.409 acres was zoned for open space.
Ms. Fahy explained that the area zoned “special district” was intended to be “a business and enterprise district” and residential development was not permitted in that area.
The questions posed in the special summons
10. In order to understand the approach adopted in the High Court by McGovern J. (the trial judge) in his judgment delivered on 2nd November, 2007 ([2007] IEHC 367) in identifying the issues and in addressing them, it is helpful to consider the questions in respect of which the Personal Representative seeks answers as outlined in the indorsement of claim in the special summons. There are fifteen questions in all, some of which are linked, which can be summarised as follows:
(a) The first three questions are linked, the first being whether the devise in Clause 1 was conditional upon the lands being zoned for residential and/or industrial development, the second and third questions being based on the assumption that the answer to that question would be in the affirmative.
(b) The fourth question and the fifth question are linked, in that the fourth question is whether the statement in the Will concerning the zoning of the land, in the events which had happened, was correct and the fifth, based on the assumption that it was, asks whether the statement was of no dispositive effect or, alternatively, what (if any) effect it had on the disposition.
(c) The sixth to tenth questions are linked, the sixth question being whether the disposition to the Appellant was subject to a condition that there be an “acquisition of my land for the purposes above”. The succeeding questions addressed both the assumption that the answer would be in the affirmative and also the assumption that the answer would be in the negative.
(d) The eleventh, twelfth and thirteenth questions are linked. The eleventh asks whether the disposition of the farmlands created “a determinable fee simple” to the effect that the farmlands vested in the Appellant “until there is an acquisition of my lands for the purpose mentioned above”. The twelfth question, based on the assumption that the answer to the eleventh would be in the affirmative, asks whether the event by which the fee simple would determine was void. The thirteenth question, which was based on the assumption that the answer to the eleventh question would be in the negative, asks “what nature and extent of interest” did the Appellant acquire in the farmlands. In essence, the answers to the eleventh and twelfth questions were determinative of the outcome of the hearing of the special summons in the High Court.
(e) The fourteenth question is whether the disposition of the farmlands to the Appellant was void for offending the rule against perpetuities.
(f) Finally, the fifteenth question asks whether “[b]y reason of the terms of the bequest, giving rise to failure thereof,” the farmlands form part of the residuary estate of the Testator.
The judgment of the High Court
11. In his judgment, the trial judge, having explained the factual background and the task facing the High Court, that is to say, answering the questions raised on the special summons, made some general observations in relation to the statutory provisions governing the interpretation of a will and, in particular, the application of s. 90 of the Succession Act 1965 (the Act of 1965), which provides that “extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will”. Having outlined the test for allowing extrinsic evidence to be received in accordance with s. 90, as laid down by this Court in Rowe v. Law [1978] I.R. 55, the trial judge stated (at para. 13):
“I am satisfied that the clause 1 of the bequest contains a lack of clarity and that there is ambiguity contained therein. I am also satisfied that the admission of extrinsic evidence is permissible in this case. There is extrinsic evidence to be found in notes taken by the [T]estator’s solicitor upon taking instructions for the drafting of the will.”
The trial judge also outlined certain general principles which apply to the construction of a will, including the guidelines suggested by Lowry L.C.J. in Heron v. Ulster Bank Limited [1974] N.I. 44 at p. 52, which he quoted and which have frequently been adopted by the courts in this jurisdiction, and have come to be known as “the Lowry Principles”.
12. The trial judge then addressed, under the heading “Construing the ‘conditions’”, the issues raised by the first ten questions posed. He stated (at para. 18) that he had to decide whether the statement in Clause 1 was a declaration of the Testator’s belief (which was erroneous) or whether it constituted a condition attaching to the bequest, and, if it was a condition, he had to decide whether it was a condition precedent or a condition subsequent. He stated (at para. 19) that he took the view that “if it is a condition it must be a condition subsequent”. He also made the point that, if a condition subsequent is found to be void, the beneficiary takes the bequest freed from the condition, so that if the bequest in Clause 1 “is a condition subsequent and is found to be void for uncertainty or incapable of taking effect”, the Appellant would take the bequest free from the condition. In the light of the trial judge’s final conclusions, those statements are obiter.
13. In the summary of his findings, the trial judge reiterated (at para. 27) that, if Clause 1 contains a condition, then it is a condition subsequent. That finding was immaterial because the trial judge went on to state (at para. 28):
“I am satisfied, however, that the bequest to the [Appellant] in clause 1 does not contain a condition. The use of the words ‘allow’ and ‘until’ cause me to take the view that the bequest to the [Appellant] is in the nature of a determinable fee simple. I am satisfied that at common law the Testator cannot, in his will, create a determinable fee simple to the [Appellant] and then provide that, in the event that a determining event occurs, the land is to pass to someone else. A testator cannot create a gift over to third parties after a determinable fee. On that ground, the entire limitation and the entire bequest fails.”
In relation to the penultimate sentence in that quotation, the Appellant, on the appeal, drew this Court’s attention to the comment made on that finding in Pearce and Mee on Land Law 3rd Ed. (Dublin, 2011) (at p. 84). The authors state:
“This decision overlooked the fact that the common law remainder rules did not apply to gifts by will, which are governed by the less rigorous equitable rules, although the fact that there was an ambiguity in the description of the determining event would still have led the gift to fail.”
14. Irrespective of what was stated in para. 28, in fact, the trial judge in the next paragraph (para. 29) stated:
“I am satisfied that the determining event specified in clause 1 of the bequest is void for uncertainty and it follows therefore, that on this basis, the entire limitation and bequest fails.”
That led to the further conclusion (at para. 31) that the farmlands fall into the residuary estate of the Testator.
15. Understandably, having regard to the sequence in which the questions were posed in the special summons, the trial judge considered whether the disposition in Clause 1 was subject to a condition and, if it was, the nature of the condition. However, given the trial judge’s ultimate conclusion that what was created in Clause 1 was “a determinable fee simple”, as has been noted previously, the specific findings in relation to a fee subject to a condition were immaterial to the outcome of his construction of Clause 1.
16. The trial judge’s analysis of Clause 1 and the presence of uncertainty therein followed on from his consideration as to whether the disposition in Clause 1 was subject to a condition and, if so, whether it was a condition precedent or a condition subsequent. He went on (at para. 21 et seq.) to consider the extrinsic evidence which he had found (in para. 13 quoted earlier) was admissible. Having considered the evidence of the instructions given by the Testator to his solicitor, the draft furnished by the solicitor to the Testator and the Testator’s slight amendment of the draft, the trial judge stated (at para. 23):
“All in all the position concerning the land is anything but clear. What does seem to emerge from the instructions and the bequest in the will is that it was the intention of the testator to let his son Sean hold the land if it remained in agricultural use but that if the land or part thereof was rezoned and sold or acquired at a significantly greater value than agricultural land then all his children should share in that windfall and Sean would retain such part of the land (if any) as was not rezoned. That is as much as can be said from looking at the will and the extrinsic evidence to be found in the solicitor’s notes.”
17. Immediately following those observations, the trial judge went on to state that it seemed to him that a great deal of uncertainty remained, pointing to the fact that it was not clear what was the zoning of the farmlands as understood by the Testator. In any event, it was clear at the time of the judgment, on the basis of the evidence in the form of Ms. Fahy’s affidavit which was before the High Court, that the farmlands were not zoned as understood by the Testator or as “advised” to the Testator and, although part of the land had been rezoned since his death, it had not been zoned for residential or industrial development. Apart from that uncertainty, the trial judge addressed the problem created by the use of the word “acquisition” of the farmlands for residential and/or industrial development, pointing to the fact that it is unclear whether what was envisaged was the lands being compulsorily acquired for those purposes or whether the Testator intended that, as he believed the farmlands were zoned for those purposes, the farmlands should be sold and the proceeds divided among the children. The trial judge then elaborated on the problem created by the words of the Will as follows (at para. 24):
“The problem is that the will does not say that and appears to ‘allow’ Sean to remain on the land and enjoy the profits of same until they are acquired. When would they be acquired? Could the other children of the deceased compel the executors to sell the land? I take the view that if clause 1 of the bequest contains a condition, that the condition is vague and uncertain.”
18. It was at that stage that the trial judge went on to consider the possibility that the estate intended to be created in Clause 1 was a determinable fee. In that context he stated that, if the determining events are void for uncertainty or otherwise, the entire limitation fails. He did not re-address the issue of uncertainty but, in my view, it is reasonable to conclude that, when he made the finding (at para. 29 quoted earlier) that the determining event specified in Clause 1 is void for uncertainty, he was doing so by reference to the various matters he had addressed earlier in the context of whether, if the disposition created a conditional fee, the condition was void for uncertainty.
19. Finally, before summarising his findings, the trial judge stated (at para. 26) that, while the authorities suggest that one should look at the will as a whole, in this case the Will as a whole does not offer much assistance in construing Clause 1.
Grounds of appeal
20. The notice of appeal filed by the solicitors then on record for the Appellant on 12th December, 2007 set out nine grounds on which it was alleged that the trial judge had erred in law and in fact. It was submitted on behalf of the Residuary Legatee that two of the grounds were not advanced in the High Court and should be struck out, that is to say, ground (1), in which it is contended that the trial judge had failed to vindicate the property rights of the Testator and his children pursuant to Article 40.3.2 and Article 43.1.2 of the Constitution, and ground (9), in which it is contended that the trial judge’s construction of the Will was incompatible with s. 117 of the Act of 1965 and repugnant to the Appellant’s constitutional rights pursuant to Article 40 and 43 of the Constitution. The Appellant, who is a qualified and practising lawyer and who appeared in person on the hearing of the appeal, did not in fact pursue those grounds and, accordingly, it is unnecessary to consider them. The remaining grounds are that the trial judge erred –
(i) in holding that Clause 1 of the Will did not contain a condition;
(ii) in holding that Clause 1 created a determinable fee;
(iii) in holding that Clause 1 “was made” while the Testator acted under a mistake of fact;
(iv) in holding that the bequest in Clause 1 was void and thus denying the Appellant of any share of his late father’s estate;
(v) in failing to give words drafted by the solicitor their legal and technical meaning;
(vi) in admitting illegible hand-written unendorsed attendance notes that contained factual errors as extrinsic evidence; and
(vii) in not adopting the “armchair” principle, thereby failing to interpret the Will as a whole to give effect to the Testator’s intentions.
21. In his submissions on the appeal, the Appellant invokes certain provisions of the Land and Conveyancing Law Reform Act 2009 (the Act of 2009), in particular –
(a) s. 16, which abolished certain common law rules, for example, the rules known as “the common law contingent remainder rules”,
(b) s. 17 which defines the scope of s. 16, and which, the Appellant submits, citing Wylie on The Land and Conveyancing Law Reform Act 2009: Annotation and Commentary (Dublin, 2009), introduced an element of retrospectivity, and
(c) s. 18 which deals with trusts of land.
In this context, the Appellant does not allude to the observations of Pearce and Mee quoted earlier (at para. 13). The Act of 2009 came into force on 1st December, 2009, that is to say, over two years after the decision of the High Court against which the Appellant appeals. The position of the Personal Representative, which is endorsed by the Residuary Legatee, is that, as the trial judge did not find the disposition in Clause 1 void for offending any of the rules relating to future interests which were abolished by the Act of 2009, the Appellant’s reliance on the Act of 2009 is not understood and it is misconceived. Further, it is submitted that the law applied by the trial judge was not altered by the Act of 2009. I am satisfied that the reliance by the Appellant on provisions of the Act of 2009 is misconceived and that the provisions of the Act of 2009 invoked by the Appellant do not bear on any of the issues which this Court has to determine on the appeal, to which I now turn.
Issues 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. Similarly, a number of other matters raised in the submissions which are irrelevant to the Court’s task, which is the proper construction of Clause 1 of the Will, will now be considered.
Other matters raised
47. It would appear to be the case that, when he made the Will, the Testator’s understanding as to the zoning status of the farmlands at that time was both unclear, as the reference to “the said land or part thereof” in Clause 1 indicates, and erroneous, the source of which it is not possible to identify. Even if the farmlands had been zoned “for residential and/or industrial development” on 5th March, 2000, the uncertainty as to when the determining event was intended to occur, having regard to the words used in Clause 1 of the Will, would still subsist. Notwithstanding that it is submitted on behalf of the Personal Representative on the appeal that it was open to the trial judge to decide that the devise of the farmlands in Clause 1 of the Will was predicated on a mistaken belief of the Testator that the lands were zoned in a particular way and that, as a result, the entire bequest should fall, I find it unnecessary to determine that issue, having decided to follow the route taken by the trial judge and deal with the issues identified earlier (at para. 22).
48. The Appellant’s contention that the appeal should be allowed on the ground that the trial judge failed to interpret the Will as a whole so as to give effect to the Testator’s intentions does not stand up to scrutiny. Apart from Clause 1, the only provisions of the Will which manifest an intention on the part of the Testator to dispose of his assets are Clause 2 and Clause 3. Clause 2 relates solely to the Testator’s residence and Clause 3 relates solely to his residuary estate. There is nothing in either Clause 2 or Clause 3 which gives any indication as to the Testator’s intention in relation to the disposition of the farmlands. Accordingly, each of those clauses is immaterial to the proper construction of Clause 1.
49. Two matters were also adverted to at the hearing of the appeal to which this Court can attach no significance whatsoever in ascertaining the proper construction of Clause 1.
50. The first is an averment which was contained in the replying affidavit sworn by the Residuary Legatee on 10th July, 2006, in which he averred that should the Court find that –
“. . . the bequest of [the farmlands] forms part of the residue of the [Testator’s] estate, I say that I am prepared to execute a Disclaimer in respect of the residuary clause and I say that then, accordingly, that part of the residue will be divided between the deceased’s children equally, which I believe was the intention of the deceased.”
In his written submissions, the Appellant suggested that that averment was “perhaps inappropriate”, which proposition was rejected on behalf of the Residuary Legatee. The Court’s task is to construe the Will, and, in particular, Clause 1, in accordance with well established principles. The professed intention of the Residuary Legatee, dependent on one outcome of the construction of the Will, irrespective of how well motivated, is wholly immaterial to the performance by the Court of its function and has had no bearing on the conclusions I have reached as to the proper construction of Clause 1.
51. The other matter disclosed to this Court at the hearing, which is of no materiality to the issues this Court has to decide, is the fact that since the hearing in the High Court, Westmeath County Council has made a compulsory purchase order to compulsorily acquire part of the farmlands comprising 0.693 hectares for the purpose of a link road, the compulsory purchase order having been confirmed by An Bord Pleanála on 10th December, 2008 and the Personal Representative having in 2013 entered into an agreement with Westmeath County Council in relation to the compensation to be payable. That development has had no bearing on the conclusions I have reached as to the proper construction of Clause 1. As has been emphasised earlier (at para. 23), the Will must be construed as at the date of the death of the Testator, that is to say, 5th March, 2000.
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.
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.
Crawford v Ruttledge
[1970] 7 JIC 2301,
KENNY J.
the first argument was that Mrs Dannell did not take of absolute estate under the will of Miss Cooper because, it was said, the words “her hires, administrators or assigns” were not words of limitation and sc, Annie Dannell as the heir of her mother was entitled to the property. In my opinion they were words of limitation despite the “or assigns” and did not confer any interest on the daughter(see Grafftey v, Humpage) (1888) 1 Beavan 45 and Jarman an Wills 8th edition pp, 1610/1611).
The next contention was that the effect of the testatrix’s will was that Miss Cooper took and absolute estate and not a life estate which a power of appointment by will andReid v. Carleton (1905) 1 I.R. 147 was cited to support this. In that case a testator gave to his wife during her life all his cash and land and directed that she was to receive all the interest and profit from them to be paid to her during her life by his executors. The will then provided that after the death of his wife the executors were to sell part of the property to pay money legacies and that any balance of the property and assets remaining after the payment of these bequests was to be disposed of according to the wishes of his wife. Mr Justice Barton held that the wife took the property absolutely subject to the legacies payable after her death. I think that the words of the will in that case gave the wife power to dispose of the property either during her lifetime or by will and that it was a case where a life estate and an absolute interest subject to the payment of legacies were created in favour of the same person (see Nowlan v. Walsh (1851) 4 De G. & Sm. 584). It was this power of the widow dispose of the property during her lifetime which distinguishes Reid v Carleton (1905)1 I.R. 147 form In re Burkitt Hancook vStuddert (1915) 1 I.R 205 and Reigh v Kearney 1986 I.R. 138. In Burkitts Case (1915) 1 I.R. 205 a testator gave to his sister the sum of £2000 for her life and at her death to be disposed of as she so wished. She died without making any disposition of is and O’Connor M.R. held that the took a life estate only with a power of appointment. He said that absolute ownership is inconsistent with a life estate and that prime facie when a testator gives property for life in express terms, he means that the legatee should have a life estate only and that the enlargement of a limited interest into absolute ownership requires coercive language in some other part of the will. This language was in the will in Reid v Carleton (1905) 1. I.R.147.
In this case, however, the power of appointment is by will only and so, if Miss Cooper had died intestate, the property would be part of the assets of the testatrix. The gift for life with a power of appointment by will only is therefore inconsistent with an absolute interest to Miss Cooper.
Miss Cooper survived the two persons to whom she had appointed the property. On had death did her next of kin become entitled to it or was in assets of the testatrix? S. 98 of the Succession Act1965provides that a general devise of land is to be construed to include any land which the testator may have power to appoint in any manner be may think proper and is to operate as an execution of such power: The decided cases establish that a person with a general power of appointment by will my validly appoint the property included in the power to his executors as such and in this way can make the property part of his assets. When the appointee under general power of appointment (whether the exercise is by a residuary clause or otherwise) dies before the appointor, it seems to me on principle and common sense that the appointment fails and that the property is an asset of the person who created the power. This was the view of the Vice Chancellor, Sir John Wickens, in re Davies’ Trusts (1871) I.R 13Eq 163: “But in general where the appointment is for a purpose which fails, it would seem on principle that there should be no appointment at all.” This view has, however not been adopted and there are many cases which contain most unconvincing explanation of what Sir John Wickens meant but did not say (see the judgment of Lord Justice Romer inre Marten (1902) 1 Ch. 314 and that of Mr. Justice Luxmoore inre Vander By1 ( 1931 Ch. 216.) the rule applied which seems to me to have neither principle nor Logic in support it, is conveniently stated at p. 266 of the 3rd edition of Farwell on Powers: “In case of wills exercising a general power of appointment in is a question intention whether the denee of the power meant by the exercise of it to take the appointed property out of the instrument creating the power for all purposes or only for the limited purpose of giving effect to the particular disposition expressed”. In a later passage the author wrote “If there be an appointment to A who died before the testator, no inference can be drawn from the mere appointment by itself of an intention to make the property the testator’s own for all purposes. But there may be other indicia such as treating the appointed fund and the testator’s own property as one mass and charging the entirety with debts and expenses and appointing executors which will enable the Court so to hold” This rule which was accepted by the Vice chancellor in re De Lusi’s Trusts (1879) 3 L.R. Ir. 232, was applied by all the members of the Court of Appeal in England inre Marten (1902) 1 Ch. 314 and has been applied in the many cases referred to in Farwell’s text book (see re Ickeringill 17Ch. D. 151, Willough by Osborne v Holyoake 22 Ch. D. 288). It is stated to be the law in Jarman on Wills, 8th edition and in the various editions of Halsbury’s Laws of England.
There is such a weight of authority extending over 90 years for the rule that I think I should apply it though I do so with considerable reluctance. Miss Copper treated the property over which she had a power of appointment and her own assets as one. There is nothing to indicate that she was drawing any distinction between them. Therefore her next-of-kin and not those of the testatrix are entitled to the purchase money
Butler v Butler and Others
[2006] IEHC 104
: MR. JUSTICE T.C. SMYTHA. The Construction of a Will.
The Supreme Court in the case of Curtin -v- O’Mahony [1991] 2 I.R. 566 stated that the task of a court in constructing a will was to give effect to the intention of the testator or “to place oneself in the armchair of the testator.” The Court in Curtin’s case prevented a substantial partial intestacy by rectifying a poorly drafted will. The testator in that case had provided that if he sold his dwelling house (which was bequeathed to a niece) during his lifetime he would divide his estate in a certain percentage (which when added up amounted to 100.5%). He did not sell his house. He had a substantial residue. Because the bequest of the residue was contingent on the sale of his house, on the face of things there would be an intestacy in relation to the residue and Lardner J. so held in the High Court. The Supreme Court held that this could not have been the intention of the meticulous testator and so rectified the will to give effect to the residuary clause.
While such a situation does not arise here, in this case the intention of the testator is said be to unclear as to who the donee of the power was to be, but the object of the testator’s bounty is clear, i.e. the children of Thomas Butler Senior (the Plaintiff and the Defendants). If the Court was in a position to identify the donee of the power, whichever person it chooses, there would be no failure or partial intestacy in respect of the estate of Timothy Butler Senior. In my judgment, the intention of the testator is clear and can be given effect to, even if the donee of the power cannot be identified with certainty.
In his submissions for the Defendants Mr. Spierin referred to the case of Howell -v- Howell [1992] 1 IR 290 in which Ms. Justice Carroll approved the guidelines of Lowry C.J. in Heron -v- Ulster Bank [1974] NI 44 wherein he sets out at page 52 of the judgement guidelines to assist in the construction of a will.
This approach was also applied by Macken J. in the Bank of Ireland -v- Gaynor & Others (Unreported High Court 29th June 1999).
B The Guidelines adumbrated by Lowry L.C.J. were as follows:-
2 “1. Read the immediately relevant portion of the will as a piece of English and decide if possible what it means.
2. Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
3. If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
4. One may at this stage have resort to rules of construction, where applicable, and aids such as the presumption of early vesting and the presumption against intestacy and in favour of equality.
5. Then see whether any rule of law prevents a particular interpretation from being adopted.
6. Finally, and I suggest not until the disputed passage has been exhaustively studied, one may get help from the opinions of other Courts and Judges on similar words, various binding precedents, since it has been well said that “no will has a twin brother” (per Warner J. in the matter of King 200 N.Y. 189, 192 [1910]), but more often as example (sometimes of the highest authority) of how judicial minds nurtured in the same discipline have interpreted words in similar contexts.”
Guideline 1:-
This requires the Court to have regard to the immediately relevant portion of the will. In the case of Howell -v- Howell, the Court concentrated on the very specific part of the will that had given rise to the difficulty. In the Howell case, the clause being construed was:
“I devise and bequeath my farm of land in the townlands of Drumpeak, Corinshigo, together with the furniture and machinery thereon, to my brother Joseph. I give, devise and bequeath all my stock and any other assets that I may have to my brother Richard.”
The Court considered that the immediately relevant portion of the will was the words “any other assets I may have.”
It was submitted by Mr. Spierin in the instant case, therefore, that the immediately relevant portion of the will of the Deceased is not the entirety of the clause quoted in the Special Summons but is that portion which actually confers the special power, i.e.:-
“…to such children of my said son Thomas as he shall, by Deed Or Will, appoint and in default of appointment to all of the children of the said Thomas Butler as tenants in common in equal shares.”
It was submitted that there is no ambiguity in the immediate relevant portion. If one considers same as a piece of English, it is clear, and it was submitted by Mr. Spierin that the power was conferred on Thomas Butler, Senior.
On the other hand, I have had the benefit of the evidence tendered on behalf of the Plaintiff by Prof. Nicholas Daly of UCD, who deals with the matter on the basis of the information given to him on the face of the affidavit as a piece of English. I will return to this matter in due course, suffice it to say that the factual context under which the Deceased made his will does not appear to have been transmitted to Prof. Daly, who actually simply was asked to carry out an exercise and quite specifically addressed his mind to it. Accordingly, the position about Thomas Butler Senior and his family and Martin Butler Senior and his family do not appear to have been any part of the consideration of the Professor.
Accordingly, if the Court considers that the immediately relevant portion of the will of Timothy Butler Senior is the entirety of the clause set out in the summons that it is not possible to ascertain the intention of the testator as to identify the donee of the power by considering the entire clause as a piece of English, but by their repeated use of the pronoun “he”, the testator could have been referring to either of his sons.
Guideline 2:-
This suggests that the Court have regard to other material parts of the will only if there is an inability to find meaning of the will in the immediately relevant part of the will in order to make “harmonious sense” of the whole. It was submitted by the Defendants that there is no disharmony in identifying Thomas Butler Senior as the donee of the power. This was vigorously challenged by the Plaintiff. It was submitted that it would be most harmonious if the parent of the objects of the power should exercise the power because, as was referred to in another case under the Succession Act by Kearns J. In re ABC Deceased XC & Others -v- R.T. & Others, [2003] 2 IR 250): “Parents must be presumed to know their children better than anyone else.”
Counsel for the Plaintiff took issue with reference to this authority as being applicable in a particular legal context only. However, it seems to me as a matter of ordinary common sense that the person best placed to know their own children is generally the parent of that child rather than their uncle. Equally so, though it did not happen, immediately after the Deceased died Thomas Butler Senior could have by deed made an appointment. Unfortunately, his untimely death did not bring that about and there may also have been differences between himself and his brother and matters were left in abeyance.
If one then has regard to Guideline 3 and to the scheme of the will as a whole, to decide what the testator was trying to do, it seems to me that he was ultimately trying to benefit the children of Thomas Butler Senior. A Court in seeking to resolve the apparent ambiguity, if such exists, in favour of Thomas Butler, being the person with the power, it seems to me that the parent of the objects of the power would be the person best placed to decide how the power was to be exercised. It fits in with what the testator in my judgement was trying to do and the testator would not have anticipated the untimely death of his son, Thomas Butler Senior.
The submission that the donee of the power was to be Martin Butler Senior because, in the events that have happened, the purported exercise by Martin Butler Senior in favour of the Plaintiff has brought about a position where the nephew closest to Martin Butler Senior would be the person most likely to have been appointed by him and would look after Martin Butler Senior’s widow. This is, however, to proceed on the basis of the argument post hoc ergo propter hoc. The Deceased was a farmer, not a clairvoyant, and it is a matter of pure conjecture that matters have emerged as they have.
In my judgement, the determination that Thomas Butler was the intended donee of the power accords with what the entire family believe to be the case as did their solicitor over a long period of time. I think it unnecessary to retrace here what I have said earlier about the general factual background of affairs between the death of the Deceased and the intimation in June 2002 of the understanding of the Plaintiff. In my judgement, the construction which identifies Thomas as the donee of the power does no violence to the intention of the testator. Further, it accords with Guideline 4, which refers to the application of the presumption of equality and against intestacy. I cannot with any certainty say that the Deceased intended to confer the power on Martin Butler Senior and there is nothing in the immediately relevant portion of his will or in the scheme as a whole that would tend to resolve the suggested ambiguity in his favour. I would hold that the objects of the power have taken equally. By severing the portion of the clause which contains the alleged ambiguity and bracketing the expression ” (such of the children of my said son, Thomas Butler, as he shall, by Deed Or Will appoint, and in default of appointment to) all of my children of my said son Thomas Butler as tenants in common in equal shares” the same result ensues the Court is rendering the bequest operative and in accordance with settled law (as expressed in the Succession Act 1965) in giving effect to the intention of the testator in accordance with Curtin -v- O’Mahony earlier referred to.
C. Uncertainty In Powers of Appointment
In my judgement, there is no uncertainty as to who had the Power of Appointment, it was Thomas Butler Senior; but even if there was an uncertainty, I would approach the matter in this way. There are some passages in the textbooks and indeed in some of the older case law which are of assistance in this regard. I have been referred to certain passages in both Delaney Equity and the Law of Trusts in Ireland, 3rd ed., at pages 85 to 88, and also Farwell on Powers, 3rd ed. (1916) at page 132 et al.
In the case of Earl of Bandon -v- Moreland [1910] 1 IR 220, the position was that a power was granted under a settlement to “A. and his heirs and assigns” to “select” part of the settled lands which were thereupon conveyed to “A., and his heirs or assigns” forever, or as he or they shall direct. “It was held that, as A. was a person ascertained within the period, he might validly exercise the power and that, though the power was bad so far as given to his “heirs or assigns” since they were donees not necessarily ascertainable within the period, the invalid portion was severable. The words “heirs or assigns” could not, in the context in which they were used have effect as words of limitation, since a power was not a hereditament. The words “heirs and assigns” is dealt with specifically in the report at page 288 in the judgment of Pimm J.. In my judgment, in the will of the Deceased, after the words “I give, devise and bequeath same to my son Martin Butler for and during the term of his natural life”, the words “and after his death” are superfluous and tautologous because at the end of his natural life, death was the inevitable and it was quite unnecessary to conjunct “and after his death to”, and accordingly in my judgment, the immediately relevant clause is that identified by Mr. Spierin.
D. The Power of Appointment purported to be exercised by Martin Butler Senior
Martin Butler Senior, by his will, appears to have attempted to exercise the Power of Appointment in favour of the Plaintiff. If he honestly believed he had a power by deed or will to so appoint, it is strange that the difficulties in 1980 arose at all, on the basis that he could have carried out his wishes at that time without any question of waiting for a will and avoided, on that version of affairs, the apparently unnecessary joinder in the deed of 1980 of the Defendants in this case. The position in this case is that the Deceased, the grandfather, left to Thomas Butler Senior to deal with matters as he saw fit as between his own children rather than confer on the childless brother, Martin Senior, the entitlement to distribute amongst the siblings that have appeared before me. The purported exercise, though questioned by Mr. Spierin, had as its answer, if it were a valid exercise, the reply from Ms. Stack, that it accorded with what was laid out in Williams 6th ed. 1987 at page 414 (which sets out the essentials for the exercise of a special power by will) viz:
“To exercise a special power, there must be either (1) a reference to the power or (2) a reference to the property the subject of the power or (3) an intention otherwise expressed in the will to exercise the power.”
Now while undoubtedly there is an error in the information given to the solicitor, Mr. Lawlor, because the property was not subject to a trust, that, in my view, is a serious error, but in the circumstances of this case, it is nihil ad rem because I am satisfied that the donee of the power was Thomas Butler Senior.
That determination effectively should resolve the matters in issue between the parties.
E. ESTOPPEL:
However, there remains outstanding the question of estoppel, and I embark upon a determination of this with reluctance and merely for completion. I accept the submissions of the Plaintiff that essentially that it has nothing to do with the construction of the will. However, if I were wrong in either my approach to the application of the guidelines, then it might fall to be determined. Accordingly it would leave a situation in which the exercise by the power or purported exercise by Martin Butler Senior would be ultra vires and, accordingly, it is necessary to proceed to consider estoppel. Mindful that it is a family dispute I do not want to say any more than is necessary and I err on the side of charity. The evidence of the parties is in conflict on the point as to the entitlement of Thomas Butler Senior to appoint, the case of the Defendants was that it was always the belief of the Plaintiff and the Defendants that the Power of Appointment had been conferred on their father, Thomas Butler Senior. It was only after the death of Michael Butler Senior when the Plaintiff had, as he perceived, I presume, the benefit of the purported exercise in his favour that he contended that his uncle, Martin Butler Senior, had the Power of Appointment. This might have been viewed by the Defendants as disingenuous or opportunistic or otherwise. I am content to merely follow the findings of fact I have made in the judgment without attaching such expressions (however justified) to his position.
The Defendants, amongst themselves, throughout the entire period until they receive the correspondence in mid 2002, understood that the Plaintiff was ad idem with them and that their father was the donee of the power. It is perhaps nihil ad rem and perhaps merely looking with the benefit of hindsight that they would have acted differently if the Plaintiff had said to them, or to his solicitor, Ms. Kelly, that he believed that his uncle, Martin Butler, at all times was the donee of the power. They conferred benefit both in the document of 1980 and 1992 to which I have referred and he was content to accept the benefits. If he did know, he refrained from conveying to them frankly what his understanding and agreement was. However, notwithstanding that Ms. Kelly did say that she did not deal with all and every last detail of all the transactions of the family over the period in which she was dealing with them, she did act as the family solicitor over a long period. She had no axe to grind. She was a professional person, independent, and her understanding from dealing with the family and each of its members (and she dealt with them, including the Plaintiff as an individual client) was that at all times the parties understood that Thomas Butler Senior was the donee of the power. Now the fact that the finance house expressed the doubt in 1980 (and that the Defendants signed the document) that is the only doubt that was ever conveyed to the Defendants or to the solicitor who was dealing with the matter. Whatever views the building society or lending institution had are nihil ad rem. They were laid to rest by everyone joining in the deed. It seems to me that except from family loyalty and filial disposition towards their mother in 1992 that the Defendants in these proceedings, who had specific assets conferred to them by the will of their mother, had no reason to relinquish that certainty and throw the entire lot into a mixed fund with the Plaintiff in the absence of a belief that as they were sharing equally with him, so also he would with them in their grandfather’s estate. The property comprised in the mother’s estate has been let and the Plaintiff has always been paid and has accepted his share of the rent, again another indicator. These do not, however, go to the determination of the construction of the will but rather to the conduct of the parties. It seems to me, accordingly, that the Defendants acted to their detriment in the certain belief that their brother, the Plaintiff, accepted that the property comprised in the estate of their grandfather would pass equally to all of them. They conferred the benefit on their brother from the estate of their mother, to which he was not entitled and they did so in the belief that the brother accepted, as represented to them, that the estate of Timothy Butler, Deceased, would pass to all of them equally. The ingredients of an estoppel are present. I do, however, accept that the certainty of fact does create a difficulty but if that difficulty of certainty of fact arises, it arises from either the Plaintiff in bad faith not disclosing what he says in one of his affidavits he believes and believed throughout that Martin Butler Senior was the donee or that he did not so believe and was quite happy to go along with them, so long as benefit was available to him, but when it appeared that the scales had tilted in his favour by the purported exercise by his uncle, he was prepared to stand and take advantage of that position. It seems to me that (1) there was a belief fostered and encouraged by the Plaintiff, which belief is independently confirmed by Ms. Kelly.
(2) There were detrimental acts on the part of his siblings in relation to the estate of their mother predicated on the basis that the estate of Timothy Butler would pass equally and, indeed, in the case of the 1980 document. Whatever benefit in 1980 Thomas received by way of a right-of-way and Martin receiving the site with good title, the two other siblings had nothing whatsoever to gain by appending their name or agreeing to the arrangement. They had no benefit in any shape whatsoever.
Furthermore there was an acceptance also by the Plaintiff of the benefit of the estate from his mother and this is a continued acceptance in the form of rental income, albeit directed through the solicitors, and I can understand that, given the fact that matters became disputatious as between the Plaintiff and the Defendants.
Corrigan v Corrigan
[2016] 3 IR 60,
Ms. Justice Laffoy
ssues 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.
Estate of Dunne Deceased
Le Blanc applicant [1988] IR 155, O’Hanlon J
O’Hanlon J.
1st July 1988
David Dunne, the deceased named in the title of these proceedings, died on the 15th October, 1986, having made his last will dated the 30th March, 1984, whereby he gave, devised and bequeathed all his property, both real and personal, to the applicant, Samuel Le Blanc, and his wife, Nuala, for their own use.
The gift, however, was a conditional one. The will recites that it is made”subject only to the condition that my dwelling house and lands or any part thereof shall not be sold or otherwise conveyed or transferred by them or either of them, their successors or assigns, to any member of the Meredith families of O’Moore’s Forest, Mountmellick.”
The applicant, who is the executor of the estate of the testator, asks the court to decide whether the condition imposed by the will is valid, and therefore registrable on the folio of the register of freeholders on which the title to the testator’s lands is registered.
The general principles applicable in determining this issue are set forth clearly and succinctly in Professor Wylie’s work on Irish Land Law (2nd ed., 1986) p. 186 at par. 4.054. The author states:
“It has been a matter of general policy of our land law from the earliest days that freehold land should be freely alienable. As far as the fee simple is concerned, this general principle was enshrined in Quia Emptores, 1290. It is clear that an attempt to impose a condition in total restriction on alienation by the grantee of a fee simple is void. Where the condition is not a total restriction, it is a question for the court as a matter of public policy whether it is so restrictive as to be void. In deciding this the court has to balance the competing interests of free disposition of property by grantors and the general policy of ensuring marketability of freehold land.”
The principles applicable were considered in Billing v. Welch (1871) I.R. 6 C.L. 88, where O’Brien J. said (at p. 101 of the report):
“The general principles upon which covenants against alienation contained in a deed granting lands in fee simple are held to be void, as being repugnant to the estate granted by that deed, are laid down in several passages of Sheppard’s Touchstone, vol. i, pp. 129 and 130 (Preston’s Edition). In p. 129, it is stated that no condition or limitation, whether by act executed, limitation of use, or devise, that contains in it matter repugnant to the estate, is good. It is true (as stated in pp. 129 and 130) that if a feoffment or other conveyance be made of land, upon condition that the feoffee or grantee should not alien to certain persons, such condition would be good; but the author adds (p. 130), that if the condition be that the feoffee or grantee should not alien the thing granted to any person whatsoever . . . such a condition is void . . . as repugnant to the estate.”
That statement of the law would appear to support the validity of what was done by the testator in the present case. I would have reservations, however, about the consistency with public policy of incorporating conditions in the grant or devise of freehold property, the obvious purpose of which is to perpetuate old resentments and antagonisms and bind the grantee or devisee to bear them in mind and give effect to them when contemplating any further disposition of the property. This is particularly so when, as in the present case, the grantor or testator seeks to bind by the condition imposed, not merely the grantee or devisee but his or her successors and assigns as well – apparently for all time in the future.
A further element of doubt is raised by the description of the persons against whom the testator’s antagonism is directed. He refers to “any member of the Meredith families of O’Moore’s Forest, Mountmellick”. As the condition is intended to bind the successors and assigns of the devisees for the future, it would appear to create an obligation to identify any future grantee of the lands as not belonging to the families in question. At what stage does one cease to be a member of those families – by departure from the area or otherwise? Abraham was told that his descendants would be as numerous as the stars in heaven and the sands on the sea-shore. Hundreds of years later the Jews were to say, “We have Abraham for our father”. I find it impossible to say with any degree of certainty at what time in the future, and by that combination of circumstances, a descendant of the present Meredith families of O’Moore’s Forest, Mountmellick, could be regarded as no longer belonging to the category described by the testator.
On these two grounds, first, the inconsistency with public policy of seeking to perpetuate old family divisions and carry them forward into future generations who may occupy the lands after the death of the testator, and secondly, on the ground of vagueness and uncertainty as to the nature and extent of the obligation sought to be imposed on the devisees, their successors and assigns, I find the condition referred to in the will invalid and void for uncertainty and direct that the title should be registered without including in the registration any reference to the condition in question.
In In re Fitzgibbon deceased
: Mackessy v Fitzgibbon [1993] 1 IR 520
Carroll J.
30th July 1992
The testator John J. Fitzgibbon by his will dated the 19th February, 1990, appointed the plaintiff as his executrix and made the following devise and bequest:
“I leave devise and bequeath my farm of land at Clouncourivane together with dwelling house and out-office, cattle and stock, goods and chattels therein and thereon to my grand-nephew Mark Fitzgibbon son of my nephew Joe Fitzgibbon of Carlow provided he lives and works on the land but if he does not then I leave my land together with dwelling house and out-office and all goods and chattels, cattle and stock to my niece Mrs. Cora Mullane absolutely.”
He then made a number of pecuniary legacies. There was no residuary clause. He died on the 31st March, 1990, and probate was granted to the plaintiff on the 10th December, 1990. She has brought a construction summons to construe the will. The beneficiary Mark Fitzgibbon was a minor at the date of the testator’s death, having been born on the 29th August, 1973. He is now of full age. The testator left a net estate of about £196,000.
In construing this will there are certain principles of law to be applied. Firstly there is a presumption in favour of early vesting; if there is a doubt about whether a condition is precedent or subsequent, the court prima facie treats it as subsequent. Secondly, where a vested estate is to be defeated by a condition on a contingency that is to happen subsequently, the 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 determinesee Sifton v. Sifton [1938] A.C. 656.
Here there are two elements to the condition “provided he lives and works on the land” and there are two questions to be answered:
1. Is the condition a condition precedent or subsequent; and
2. Is the condition void for uncertainty?
I am satisfied the condition is a condition subsequent. It provides for two requirements which if they are not fulfilled would lead to a forfeiture. Accordingly the condition is a condition subsequent.
As to whether the composite condition, “living and working”, is void for uncertainty, an examination of some decided cases is of help.
In In re Hennessy deceased (1963) 98 I.L.T.R. 39 there was a devise of land to a son:
“if he wishes to farm it and carry on same as he thinks best, if not to my daughter Yvonne. If either my son or my daughter do not survive or wish to carry on the farm I wish it to go to my brother J.H. for one of his sons.”
The condition as to farming was held by Budd J. to be a condition subsequent void for uncertainty. He said at p. 45 that he found it impossible to say with any degree of certainty what was the meaning of the words “to farm it and carry on same as he thinks best”.
“Is it meant that the beneficiary must farm himself as it were with his own hands personally or is it sufficient if he or she farms through an agent or indeed lets the lands in grazing or conacre. It is sufficient in the circumstances to say it is not clear precisely what is meant and it is therefore not possible to say upon the happening of what event the estate given would determine. In my view therefore the condition as to farming is void for uncertainty.”
In Sifton v. Sifton [1938] A.C. 656 a provision in a will that payments be made “only so long as she shall continue to reside in Canada” was held to be void for uncertainty. In a decision of the House of Lords, Lord Romer said at page 675:
“Their Lordships’ attention was called during the arguments to numerous authorities in which the court has been called upon to consider the meaning of the words “reside” and “residence”, and the like. But these authorities give their Lordships no assistance in construing the present will. The meaning of such words obviously depends upon the context in which the words are used. A condition, for instance, attached to the devise of a house that the devisee should reside in the house for at least six weeks in a year can present no difficulty. In some contexts the word “reside” may clearly denote what is sometimes called “being in residence” at a particular house. In other contexts it may mean merely maintaining a house in a fit state for residence. It is plain, however, that in the present case the word “reside” means something different from either being in residence or merely maintaining a residence. No one can suppose that the testator intended either that his daughter should never leave Canada, or that so long as she maintained a residence in Canada she might spend the whole of her time abroad. He must have intended that, though Canada was to be her home in general, yet she was to be at liberty to leave Canada for some purposes and for some periods of time. Unfortunately, he omitted to define either the purposes or the periods. The result is that the majority of the Court of Appeal have found themselves unable to give any more precise direction than that the appellant may leave Canada for a limited period and for a purely temporary purpose, without being able to define either the word “limited” or the word “temporary”.It necessarily followed that they, in common with Middleton J.A., were of opinion that the questions propounded in the trustees’ notice of motion do not at present admit of categorical answers. Their Lordships are of the same opinion. But if the appellant’s interest under the will is to be forfeited upon her “ceasing to reside in Canada,” she has a right to have those questions categorically answered; and inasmuch as they cannot be so answered, the words, if constituting a condition subsequent, are void for uncertainty.”
In Moffatt v. McCleary [1923] 1 I.R. 16 a bequest “to my brother provided he or any of his sons come to live at Magherahan within one year of my death” was held to be void for uncertainty. Lord Justice Moore said at page 20:
“The provision about living at Magherahan being indefinite as to whether living for an unascertained period, or for the whole existence of Alexander, and whether for actual or merely constructive residence, is too vague to be enforced and is void for uncertainty.”
Motherway v. Coghlan (1956) 98 I.L.T.R. 134 concerned a condition in a will, “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”. The residence requirement was held to be void for uncertainty.
While a will cannot be construed by looking at another will and each will must be construed as a whole in its own context, these decided cases are helpful. I find that the condition “provided he lives and works on the land” is void for uncertainty on the same line of reasoning as in the cases cited. A beneficiary is entitled to know on what conditions his vested estate is liable to be divested. In this case the testator has been too vague and accordingly the condition is void for uncertainty both as to living and working on the lands. Since the devise and bequest is subject to a condition subsequent which is void for uncertainty it follows that the first defendant is entitled absolutely. The questions in the construction summons and the answers are as follows:
1. Is the bequest by the testator to the first defendant of the testator’s farm at Clouncourivane together with the dwelling house and out-office, cattle and stock, goods and chattels therein and thereon void for uncertainty?
Answer: No.
2. Is the condition whereby the first defendant is required to live and work on the said land contained in the said bequest void for uncertainty?
Answer: Yes.
Here I find it necessary for the sake of clarity to add in an additional question.
2. (a) If the answer to question 2 is in the affirmative, is the first defendant entitled absolutely to the said bequest?
Answer: Yes.
3. Is the effect of the said bequest that the said lands shall remain vested in the first defendant for only so long as he shall live and work on them?
Answer: No.
Questions 4, 5 and 6 do not arise.
7. (a) Does the expression “goods and chattels” as used by the testator in the said bequest include all the personal estate of the testator?
Answer: No.
(b) Alternatively the plaintiff seeks the construction by the Honourable Court of the said expression.
Answer: It includes goods and chattels in and on the farm of land. A construction of the same words in the gift over to the second defendant does not arise.
8. Given that there is no residuary clause in the said will of the said John J. Fitzgibbon ought the undisposed residue be distributed in accordance with the provisions of the Succession Act, 1965?
Answer: Yes.
9. Is the undisposed residue of the estate of the deceased John J. Fitzgibbon covered by the expression “goods and chattels”mentioned in paragraph 7 (a) herein?
Answer: Not insofar as it concerned the bequest to the first defendant.
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.
Corrigan -v- Corrigan & anor
[2016] IESC 56 (05 October 2016)
Judgment of Ms. Justice Laffoy delivered on 5th day of October, 2016
Factual and procedural background
1. The High Court proceedings which are the subject of this appeal (Record No. 2006 No. 64SP) were initiated by a special summons issued on 21st March, 2006 seeking to have the will of Christopher Corrigan (the Testator) construed by the Court.
2. The Testator made his last will and testament (the Will) on 23rd September, 1997. He appointed as his executors three of his sons, named as “Eamonn, Owen and Sean”, all of whom are parties to this appeal. Having directed his executors to pay his debts, funeral and testamentary expenses as soon as possible after his death, he went on to make “the following dispositions of my property”. Three clauses follow, Clause 1 being the clause which the High Court was asked to construe.
3. Clause 1 of the Will in its entirety provides as follows:
“I have 21 statute acres of land in Folio 13658 Co. Westmeath and I have been advised that the said land or part thereof is zoned for residential and/or industrial development. I direct my Executors to hold the lands upon the following trusts: –
(a) To allow my son Sean to hold and enjoy the profits of the lands for his own benefit until there is acquisition of my lands for the purposes mentioned above. In such event, the net proceeds of the sale of my lands shall be divided equally amongst all my children and any section of the farm not so acquired shall become the absolute property of my son Sean”.
The Testator was survived by five children, his sons Eamonn, Eoin (otherwise Owen) and Sean and by another son, Thomas, and a daughter, Angela.
4. The remainder of the Will is to be found in Clause 2 and Clause 3. Clause 2 deals with what the Testator referred to as “my residence situate on half an acre registered on Folio 18004 County Westmeath”. As to that property, Clause 2 provides:
“. . . I direct as follows –
(a) If any one of my three Executors wish with the consent of the other two, to own the said house, then my Executors can vest it in such son so as to make him full owner of same but on terms that the son who gets the house will sell his own residence and the net proceeds of such sale shall be paid to my Executors and it is to be then divided amongst my other four children equally.
(b) If no agreement is reached by my three Executors and if none of them desire to own my residence, then it can be sold by Public Auction or by Private Treaty as my Executors shall decide and the net proceeds of sale in such event, I bequeath to my children, Eamonn, Owen, Thomas and Angela in equal shares.”
Clause 3 deals with the Testator’s residuary estate and provides:
“I leave my residuary estate of every kind to my son Owen for his use and benefit”. While no issue arises in the proceedings as to the proper construction of either Clause 2 or Clause 3 per se, the provisions of those clauses have been outlined because one of the grounds of appeal is that the High Court failed to interpret the Will as a whole to give effect to the Testator’s intentions. Taking a broad view of it, the Will as a whole demonstrates that the obvious objective of the Testator was to treat his five children fairly. However, it must be emphasised that the function of the Court in construing Clause 1 of the Will is to ascertain the Testator’s intention from the words used by him in the Will.
5. The Testator died on 5th March, 2000. On 10th January, 2002 probate of the Will issued to two of his sons whom he had named as executors, Eamonn (the Personal Representative) and Eoin (otherwise Owen) (the Residuary Legatee), the third son named as executor, Sean (the Appellant), having renounced his right to probate. Subsequently, when the issue as to the construction of Clause 1 of the Will arose, the Residuary Legatee, with the leave of the High Court, renounced his right to act as executor of the estate of the Testator. The position thereafter was that the Personal Representative was sole personal representative of the unadministered estate of the Testator. The dispute in relation to the testamentary disposition of the property the subject of Clause 1 of the Will, which is hereinafter referred to as “the farmlands” to distinguish it from the house and lands the subject of Clause 2, was a dispute in which, as counsel for the Personal Representative submitted, the Appellant and the Residuary Legatee were “the real legitimus contradictors”. The Personal Representative, in that capacity, properly initiated the proceedings to have Clause 1 of the Will construed by the High Court.
6. The affidavit evidence put by the Personal Representative before the Court addressed two factual matters which were called in aid in relation to the construction of Clause 1 of the Will.
7. The first factual matter was the instructions given by the Testator to the solicitor who drafted the Will, Kevin P. Wallace (Mr. Wallace), a solicitor in the firm N. J. Downes & Co. When the grounding affidavit of the Personal Representative was sworn, Mr. Wallace was deceased. However, the Personal Representative exhibited –
(a) what were described as “the attendance notes (in hand-written and typed form) dated 26th August, 1997”, and
(b) a letter to the Testator from Mr. Wallace, and
(c) “a draft copy of the will showing one alteration by the [Testator] to its contents”.
8. Those exhibits disclose the following:
(a) The attendance notes record that, in giving instructions to his solicitor on 26th August, 1997, the Testator identified his children, two of whom, who are not named as executors in his will, Thomas and Angela, were then in Australia. In relation to the Appellant, he informed the solicitor that he was involved in panel-beating and used the Testator’s shed. The Testator described his assets as –
(i) “Farm”, which was described as “zoned for residential”, and
(ii) the house, and
(iii) a credit union account.
The “Farm” and the house were described as being on two separate folios. The instructions given as to the dispositions the Testator intended to make separately itemised the “Farm”, the residence and contents, and the residue. In relation to the “Farm” the instruction given is recorded as follows:
“Farm to Sean, but if any is sold for residential or commercial purposes then it’s to be divided between all children equally. Sean can keep what is not required for residential purposes, all 5 to share in such sale money.”
(b) The letter from the solicitor to the Testator was dated 28th August, 1997. It obviously enclosed a draft will. The Testator was asked to check it carefully and “to drop in” to the solicitor when convenient.
(c) The alteration made by the deceased to the draft will was made to the part of Clause 1 which had been drafted as follows:
“. . . I have been advised that the said land or part thereof will be zoned for residential and/or industrial development.”
The word “will” was crossed out and the word “is” was put in manuscript over it. In fact, as is clear from Clause 1 of the Will in its final form, as quoted above, which was executed just short of a month later, the words “is zoned” were substituted for the words “will be zoned” in the Will.
9. The second factual matter was the zoning status of the farmlands at the date of the Will, at the date of the Testator’s death, and when the proceedings were proceeding through the High Court. In an affidavit sworn on 30th April, 2007 by Geraldine Fahy, Planning Consultant, it was averred that –
(a) the farmlands were zoned agricultural as at 23rd September, 1997, the date on which the Testator executed the Will, and as at 5th March, 2000, the date of the Testator’s death; and
(b) the farmlands were rezoned in 2005 under the Robinstown Local Area Plan, with the result that –
(i) an area measuring 0.229 acres was un-zoned;
(ii) an area measuring 16.850 acres was zoned special district; and
(iii) an area measuring 3.409 acres was zoned for open space.
Ms. Fahy explained that the area zoned “special district” was intended to be “a business and enterprise district” and residential development was not permitted in that area.
The questions posed in the special summons
10. In order to understand the approach adopted in the High Court by McGovern J. (the trial judge) in his judgment delivered on 2nd November, 2007 ([2007] IEHC 367) in identifying the issues and in addressing them, it is helpful to consider the questions in respect of which the Personal Representative seeks answers as outlined in the indorsement of claim in the special summons. There are fifteen questions in all, some of which are linked, which can be summarised as follows:
(a) The first three questions are linked, the first being whether the devise in Clause 1 was conditional upon the lands being zoned for residential and/or industrial development, the second and third questions being based on the assumption that the answer to that question would be in the affirmative.
(b) The fourth question and the fifth question are linked, in that the fourth question is whether the statement in the Will concerning the zoning of the land, in the events which had happened, was correct and the fifth, based on the assumption that it was, asks whether the statement was of no dispositive effect or, alternatively, what (if any) effect it had on the disposition.
(c) The sixth to tenth questions are linked, the sixth question being whether the disposition to the Appellant was subject to a condition that there be an “acquisition of my land for the purposes above”. The succeeding questions addressed both the assumption that the answer would be in the affirmative and also the assumption that the answer would be in the negative.
(d) The eleventh, twelfth and thirteenth questions are linked. The eleventh asks whether the disposition of the farmlands created “a determinable fee simple” to the effect that the farmlands vested in the Appellant “until there is an acquisition of my lands for the purpose mentioned above”. The twelfth question, based on the assumption that the answer to the eleventh would be in the affirmative, asks whether the event by which the fee simple would determine was void. The thirteenth question, which was based on the assumption that the answer to the eleventh question would be in the negative, asks “what nature and extent of interest” did the Appellant acquire in the farmlands. In essence, the answers to the eleventh and twelfth questions were determinative of the outcome of the hearing of the special summons in the High Court.
(e) The fourteenth question is whether the disposition of the farmlands to the Appellant was void for offending the rule against perpetuities.
(f) Finally, the fifteenth question asks whether “[b]y reason of the terms of the bequest, giving rise to failure thereof,” the farmlands form part of the residuary estate of the Testator.
The judgment of the High Court
11. In his judgment, the trial judge, having explained the factual background and the task facing the High Court, that is to say, answering the questions raised on the special summons, made some general observations in relation to the statutory provisions governing the interpretation of a will and, in particular, the application of s. 90 of the Succession Act 1965 (the Act of 1965), which provides that “extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will”. Having outlined the test for allowing extrinsic evidence to be received in accordance with s. 90, as laid down by this Court in Rowe v. Law [1978] I.R. 55, the trial judge stated (at para. 13):
“I am satisfied that the clause 1 of the bequest contains a lack of clarity and that there is ambiguity contained therein. I am also satisfied that the admission of extrinsic evidence is permissible in this case. There is extrinsic evidence to be found in notes taken by the [T]estator’s solicitor upon taking instructions for the drafting of the will.”
The trial judge also outlined certain general principles which apply to the construction of a will, including the guidelines suggested by Lowry L.C.J. in Heron v. Ulster Bank Limited [1974] N.I. 44 at p. 52, which he quoted and which have frequently been adopted by the courts in this jurisdiction, and have come to be known as “the Lowry Principles”.
12. The trial judge then addressed, under the heading “Construing the ‘conditions’”, the issues raised by the first ten questions posed. He stated (at para. 18) that he had to decide whether the statement in Clause 1 was a declaration of the Testator’s belief (which was erroneous) or whether it constituted a condition attaching to the bequest, and, if it was a condition, he had to decide whether it was a condition precedent or a condition subsequent. He stated (at para. 19) that he took the view that “if it is a condition it must be a condition subsequent”. He also made the point that, if a condition subsequent is found to be void, the beneficiary takes the bequest freed from the condition, so that if the bequest in Clause 1 “is a condition subsequent and is found to be void for uncertainty or incapable of taking effect”, the Appellant would take the bequest free from the condition. In the light of the trial judge’s final conclusions, those statements are obiter.
13. In the summary of his findings, the trial judge reiterated (at para. 27) that, if Clause 1 contains a condition, then it is a condition subsequent. That finding was immaterial because the trial judge went on to state (at para. 28):
“I am satisfied, however, that the bequest to the [Appellant] in clause 1 does not contain a condition. The use of the words ‘allow’ and ‘until’ cause me to take the view that the bequest to the [Appellant] is in the nature of a determinable fee simple. I am satisfied that at common law the Testator cannot, in his will, create a determinable fee simple to the [Appellant] and then provide that, in the event that a determining event occurs, the land is to pass to someone else. A testator cannot create a gift over to third parties after a determinable fee. On that ground, the entire limitation and the entire bequest fails.”
In relation to the penultimate sentence in that quotation, the Appellant, on the appeal, drew this Court’s attention to the comment made on that finding in Pearce and Mee on Land Law 3rd Ed. (Dublin, 2011) (at p. 84). The authors state:
“This decision overlooked the fact that the common law remainder rules did not apply to gifts by will, which are governed by the less rigorous equitable rules, although the fact that there was an ambiguity in the description of the determining event would still have led the gift to fail.”
14. Irrespective of what was stated in para. 28, in fact, the trial judge in the next paragraph (para. 29) stated:
“I am satisfied that the determining event specified in clause 1 of the bequest is void for uncertainty and it follows therefore, that on this basis, the entire limitation and bequest fails.”
That led to the further conclusion (at para. 31) that the farmlands fall into the residuary estate of the Testator.
15. Understandably, having regard to the sequence in which the questions were posed in the special summons, the trial judge considered whether the disposition in Clause 1 was subject to a condition and, if it was, the nature of the condition. However, given the trial judge’s ultimate conclusion that what was created in Clause 1 was “a determinable fee simple”, as has been noted previously, the specific findings in relation to a fee subject to a condition were immaterial to the outcome of his construction of Clause 1.
16. The trial judge’s analysis of Clause 1 and the presence of uncertainty therein followed on from his consideration as to whether the disposition in Clause 1 was subject to a condition and, if so, whether it was a condition precedent or a condition subsequent. He went on (at para. 21 et seq.) to consider the extrinsic evidence which he had found (in para. 13 quoted earlier) was admissible. Having considered the evidence of the instructions given by the Testator to his solicitor, the draft furnished by the solicitor to the Testator and the Testator’s slight amendment of the draft, the trial judge stated (at para. 23):
“All in all the position concerning the land is anything but clear. What does seem to emerge from the instructions and the bequest in the will is that it was the intention of the testator to let his son Sean hold the land if it remained in agricultural use but that if the land or part thereof was rezoned and sold or acquired at a significantly greater value than agricultural land then all his children should share in that windfall and Sean would retain such part of the land (if any) as was not rezoned. That is as much as can be said from looking at the will and the extrinsic evidence to be found in the solicitor’s notes.”
17. Immediately following those observations, the trial judge went on to state that it seemed to him that a great deal of uncertainty remained, pointing to the fact that it was not clear what was the zoning of the farmlands as understood by the Testator. In any event, it was clear at the time of the judgment, on the basis of the evidence in the form of Ms. Fahy’s affidavit which was before the High Court, that the farmlands were not zoned as understood by the Testator or as “advised” to the Testator and, although part of the land had been rezoned since his death, it had not been zoned for residential or industrial development. Apart from that uncertainty, the trial judge addressed the problem created by the use of the word “acquisition” of the farmlands for residential and/or industrial development, pointing to the fact that it is unclear whether what was envisaged was the lands being compulsorily acquired for those purposes or whether the Testator intended that, as he believed the farmlands were zoned for those purposes, the farmlands should be sold and the proceeds divided among the children. The trial judge then elaborated on the problem created by the words of the Will as follows (at para. 24):
“The problem is that the will does not say that and appears to ‘allow’ Sean to remain on the land and enjoy the profits of same until they are acquired. When would they be acquired? Could the other children of the deceased compel the executors to sell the land? I take the view that if clause 1 of the bequest contains a condition, that the condition is vague and uncertain.”
18. It was at that stage that the trial judge went on to consider the possibility that the estate intended to be created in Clause 1 was a determinable fee. In that context he stated that, if the determining events are void for uncertainty or otherwise, the entire limitation fails. He did not re-address the issue of uncertainty but, in my view, it is reasonable to conclude that, when he made the finding (at para. 29 quoted earlier) that the determining event specified in Clause 1 is void for uncertainty, he was doing so by reference to the various matters he had addressed earlier in the context of whether, if the disposition created a conditional fee, the condition was void for uncertainty.
19. Finally, before summarising his findings, the trial judge stated (at para. 26) that, while the authorities suggest that one should look at the will as a whole, in this case the Will as a whole does not offer much assistance in construing Clause 1.
Grounds of appeal
20. The notice of appeal filed by the solicitors then on record for the Appellant on 12th December, 2007 set out nine grounds on which it was alleged that the trial judge had erred in law and in fact. It was submitted on behalf of the Residuary Legatee that two of the grounds were not advanced in the High Court and should be struck out, that is to say, ground (1), in which it is contended that the trial judge had failed to vindicate the property rights of the Testator and his children pursuant to Article 40.3.2 and Article 43.1.2 of the Constitution, and ground (9), in which it is contended that the trial judge’s construction of the Will was incompatible with s. 117 of the Act of 1965 and repugnant to the Appellant’s constitutional rights pursuant to Article 40 and 43 of the Constitution. The Appellant, who is a qualified and practising lawyer and who appeared in person on the hearing of the appeal, did not in fact pursue those grounds and, accordingly, it is unnecessary to consider them. The remaining grounds are that the trial judge erred –
(i) in holding that Clause 1 of the Will did not contain a condition;
(ii) in holding that Clause 1 created a determinable fee;
(iii) in holding that Clause 1 “was made” while the Testator acted under a mistake of fact;
(iv) in holding that the bequest in Clause 1 was void and thus denying the Appellant of any share of his late father’s estate;
(v) in failing to give words drafted by the solicitor their legal and technical meaning;
(vi) in admitting illegible hand-written unendorsed attendance notes that contained factual errors as extrinsic evidence; and
(vii) in not adopting the “armchair” principle, thereby failing to interpret the Will as a whole to give effect to the Testator’s intentions.
21. In his submissions on the appeal, the Appellant invokes certain provisions of the Land and Conveyancing Law Reform Act 2009 (the Act of 2009), in particular –
(a) s. 16, which abolished certain common law rules, for example, the rules known as “the common law contingent remainder rules”,
(b) s. 17 which defines the scope of s. 16, and which, the Appellant submits, citing Wylie on The Land and Conveyancing Law Reform Act 2009: Annotation and Commentary (Dublin, 2009), introduced an element of retrospectivity, and
(c) s. 18 which deals with trusts of land.
In this context, the Appellant does not allude to the observations of Pearce and Mee quoted earlier (at para. 13). The Act of 2009 came into force on 1st December, 2009, that is to say, over two years after the decision of the High Court against which the Appellant appeals. The position of the Personal Representative, which is endorsed by the Residuary Legatee, is that, as the trial judge did not find the disposition in Clause 1 void for offending any of the rules relating to future interests which were abolished by the Act of 2009, the Appellant’s reliance on the Act of 2009 is not understood and it is misconceived. Further, it is submitted that the law applied by the trial judge was not altered by the Act of 2009. I am satisfied that the reliance by the Appellant on provisions of the Act of 2009 is misconceived and that the provisions of the Act of 2009 invoked by the Appellant do not bear on any of the issues which this Court has to determine on the appeal, to which I now turn.
Issues 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. Similarly, a number of other matters raised in the submissions which are irrelevant to the Court’s task, which is the proper construction of Clause 1 of the Will, will now be considered.
Other matters raised
47. It would appear to be the case that, when he made the Will, the Testator’s understanding as to the zoning status of the farmlands at that time was both unclear, as the reference to “the said land or part thereof” in Clause 1 indicates, and erroneous, the source of which it is not possible to identify. Even if the farmlands had been zoned “for residential and/or industrial development” on 5th March, 2000, the uncertainty as to when the determining event was intended to occur, having regard to the words used in Clause 1 of the Will, would still subsist. Notwithstanding that it is submitted on behalf of the Personal Representative on the appeal that it was open to the trial judge to decide that the devise of the farmlands in Clause 1 of the Will was predicated on a mistaken belief of the Testator that the lands were zoned in a particular way and that, as a result, the entire bequest should fall, I find it unnecessary to determine that issue, having decided to follow the route taken by the trial judge and deal with the issues identified earlier (at para. 22).
48. The Appellant’s contention that the appeal should be allowed on the ground that the trial judge failed to interpret the Will as a whole so as to give effect to the Testator’s intentions does not stand up to scrutiny. Apart from Clause 1, the only provisions of the Will which manifest an intention on the part of the Testator to dispose of his assets are Clause 2 and Clause 3. Clause 2 relates solely to the Testator’s residence and Clause 3 relates solely to his residuary estate. There is nothing in either Clause 2 or Clause 3 which gives any indication as to the Testator’s intention in relation to the disposition of the farmlands. Accordingly, each of those clauses is immaterial to the proper construction of Clause 1.
49. Two matters were also adverted to at the hearing of the appeal to which this Court can attach no significance whatsoever in ascertaining the proper construction of Clause 1.
50. The first is an averment which was contained in the replying affidavit sworn by the Residuary Legatee on 10th July, 2006, in which he averred that should the Court find that –
“. . . the bequest of [the farmlands] forms part of the residue of the [Testator’s] estate, I say that I am prepared to execute a Disclaimer in respect of the residuary clause and I say that then, accordingly, that part of the residue will be divided between the deceased’s children equally, which I believe was the intention of the deceased.”
In his written submissions, the Appellant suggested that that averment was “perhaps inappropriate”, which proposition was rejected on behalf of the Residuary Legatee. The Court’s task is to construe the Will, and, in particular, Clause 1, in accordance with well established principles. The professed intention of the Residuary Legatee, dependent on one outcome of the construction of the Will, irrespective of how well motivated, is wholly immaterial to the performance by the Court of its function and has had no bearing on the conclusions I have reached as to the proper construction of Clause 1.
51. The other matter disclosed to this Court at the hearing, which is of no materiality to the issues this Court has to decide, is the fact that since the hearing in the High Court, Westmeath County Council has made a compulsory purchase order to compulsorily acquire part of the farmlands comprising 0.693 hectares for the purpose of a link road, the compulsory purchase order having been confirmed by An Bord Pleanála on 10th December, 2008 and the Personal Representative having in 2013 entered into an agreement with Westmeath County Council in relation to the compensation to be payable. That development has had no bearing on the conclusions I have reached as to the proper construction of Clause 1. As has been emphasised earlier (at para. 23), the Will must be construed as at the date of the death of the Testator, that is to say, 5th March, 2000.
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.
Jameson v. McGovern.
[1934] IR 170 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.
Crawford v Ruttledge
[1970] 7 JIC 2301,
KENNY J.
the first argument was that Mrs Dannell did not take of absolute estate under the will of Miss Cooper because, it was said, the words “her hires, administrators or assigns” were not words of limitation and sc, Annie Dannell as the heir of her mother was entitled to the property. In my opinion they were words of limitation despite the “or assigns” and did not confer any interest on the daughter(see Grafftey v, Humpage) (1888) 1 Beavan 45 and Jarman an Wills 8th edition pp, 1610/1611).
The next contention was that the effect of the testatrix’s will was that Miss Cooper took and absolute estate and not a life estate which a power of appointment by will andReid v. Carleton (1905) 1 I.R. 147 was cited to support this. In that case a testator gave to his wife during her life all his cash and land and directed that she was to receive all the interest and profit from them to be paid to her during her life by his executors. The will then provided that after the death of his wife the executors were to sell part of the property to pay money legacies and that any balance of the property and assets remaining after the payment of these bequests was to be disposed of according to the wishes of his wife. Mr Justice Barton held that the wife took the property absolutely subject to the legacies payable after her death. I think that the words of the will in that case gave the wife power to dispose of the property either during her lifetime or by will and that it was a case where a life estate and an absolute interest subject to the payment of legacies were created in favour of the same person (see Nowlan v. Walsh (1851) 4 De G. & Sm. 584). It was this power of the widow dispose of the property during her lifetime which distinguishes Reid v Carleton (1905)1 I.R. 147 form In re Burkitt Hancook vStuddert (1915) 1 I.R 205 and Reigh v Kearney 1986 I.R. 138. In Burkitts Case (1915) 1 I.R. 205 a testator gave to his sister the sum of £2000 for her life and at her death to be disposed of as she so wished. She died without making any disposition of is and O’Connor M.R. held that the took a life estate only with a power of appointment. He said that absolute ownership is inconsistent with a life estate and that prime facie when a testator gives property for life in express terms, he means that the legatee should have a life estate only and that the enlargement of a limited interest into absolute ownership requires coercive language in some other part of the will. This language was in the will in Reid v Carleton (1905) 1. I.R.147.
In this case, however, the power of appointment is by will only and so, if Miss Cooper had died intestate, the property would be part of the assets of the testatrix. The gift for life with a power of appointment by will only is therefore inconsistent with an absolute interest to Miss Cooper.
Miss Cooper survived the two persons to whom she had appointed the property. On had death did her next of kin become entitled to it or was in assets of the testatrix? S. 98 of the Succession Act1965provides that a general devise of land is to be construed to include any land which the testator may have power to appoint in any manner be may think proper and is to operate as an execution of such power: The decided cases establish that a person with a general power of appointment by will my validly appoint the property included in the power to his executors as such and in this way can make the property part of his assets. When the appointee under general power of appointment (whether the exercise is by a residuary clause or otherwise) dies before the appointor, it seems to me on principle and common sense that the appointment fails and that the property is an asset of the person who created the power. This was the view of the Vice Chancellor, Sir John Wickens, in re Davies’ Trusts (1871) I.R 13Eq 163: “But in general where the appointment is for a purpose which fails, it would seem on principle that there should be no appointment at all.” This view has, however not been adopted and there are many cases which contain most unconvincing explanation of what Sir John Wickens meant but did not say (see the judgment of Lord Justice Romer inre Marten (1902) 1 Ch. 314 and that of Mr. Justice Luxmoore inre Vander By1 ( 1931 Ch. 216.) the rule applied which seems to me to have neither principle nor Logic in support it, is conveniently stated at p. 266 of the 3rd edition of Farwell on Powers: “In case of wills exercising a general power of appointment in is a question intention whether the denee of the power meant by the exercise of it to take the appointed property out of the instrument creating the power for all purposes or only for the limited purpose of giving effect to the particular disposition expressed”. In a later passage the author wrote “If there be an appointment to A who died before the testator, no inference can be drawn from the mere appointment by itself of an intention to make the property the testator’s own for all purposes. But there may be other indicia such as treating the appointed fund and the testator’s own property as one mass and charging the entirety with debts and expenses and appointing executors which will enable the Court so to hold” This rule which was accepted by the Vice chancellor in re De Lusi’s Trusts (1879) 3 L.R. Ir. 232, was applied by all the members of the Court of Appeal in England inre Marten (1902) 1 Ch. 314 and has been applied in the many cases referred to in Farwell’s text book (see re Ickeringill 17Ch. D. 151, Willough by Osborne v Holyoake 22 Ch. D. 288). It is stated to be the law in Jarman on Wills, 8th edition and in the various editions of Halsbury’s Laws of England.
There is such a weight of authority extending over 90 years for the rule that I think I should apply it though I do so with considerable reluctance. Miss Copper treated the property over which she had a power of appointment and her own assets as one. There is nothing to indicate that she was drawing any distinction between them. Therefore her next-of-kin and not those of the testatrix are entitled to the purchase money
Butler v Butler and Others
[2006] IEHC 104
: MR. JUSTICE T.C. SMYTHA. The Construction of a Will.
The Supreme Court in the case of Curtin -v- O’Mahony [1991] 2 I.R. 566 stated that the task of a court in constructing a will was to give effect to the intention of the testator or “to place oneself in the armchair of the testator.” The Court in Curtin’s case prevented a substantial partial intestacy by rectifying a poorly drafted will. The testator in that case had provided that if he sold his dwelling house (which was bequeathed to a niece) during his lifetime he would divide his estate in a certain percentage (which when added up amounted to 100.5%). He did not sell his house. He had a substantial residue. Because the bequest of the residue was contingent on the sale of his house, on the face of things there would be an intestacy in relation to the residue and Lardner J. so held in the High Court. The Supreme Court held that this could not have been the intention of the meticulous testator and so rectified the will to give effect to the residuary clause.
While such a situation does not arise here, in this case the intention of the testator is said be to unclear as to who the donee of the power was to be, but the object of the testator’s bounty is clear, i.e. the children of Thomas Butler Senior (the Plaintiff and the Defendants). If the Court was in a position to identify the donee of the power, whichever person it chooses, there would be no failure or partial intestacy in respect of the estate of Timothy Butler Senior. In my judgment, the intention of the testator is clear and can be given effect to, even if the donee of the power cannot be identified with certainty.
In his submissions for the Defendants Mr. Spierin referred to the case of Howell -v- Howell [1992] 1 IR 290 in which Ms. Justice Carroll approved the guidelines of Lowry C.J. in Heron -v- Ulster Bank [1974] NI 44 wherein he sets out at page 52 of the judgement guidelines to assist in the construction of a will.
This approach was also applied by Macken J. in the Bank of Ireland -v- Gaynor & Others (Unreported High Court 29th June 1999).
B The Guidelines adumbrated by Lowry L.C.J. were as follows:-
2 “1. Read the immediately relevant portion of the will as a piece of English and decide if possible what it means.
2. Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
3. If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
4. One may at this stage have resort to rules of construction, where applicable, and aids such as the presumption of early vesting and the presumption against intestacy and in favour of equality.
5. Then see whether any rule of law prevents a particular interpretation from being adopted.
6. Finally, and I suggest not until the disputed passage has been exhaustively studied, one may get help from the opinions of other Courts and Judges on similar words, various binding precedents, since it has been well said that “no will has a twin brother” (per Warner J. in the matter of King 200 N.Y. 189, 192 [1910]), but more often as example (sometimes of the highest authority) of how judicial minds nurtured in the same discipline have interpreted words in similar contexts.”
Guideline 1:-
This requires the Court to have regard to the immediately relevant portion of the will. In the case of Howell -v- Howell, the Court concentrated on the very specific part of the will that had given rise to the difficulty. In the Howell case, the clause being construed was:
“I devise and bequeath my farm of land in the townlands of Drumpeak, Corinshigo, together with the furniture and machinery thereon, to my brother Joseph. I give, devise and bequeath all my stock and any other assets that I may have to my brother Richard.”
The Court considered that the immediately relevant portion of the will was the words “any other assets I may have.”
It was submitted by Mr. Spierin in the instant case, therefore, that the immediately relevant portion of the will of the Deceased is not the entirety of the clause quoted in the Special Summons but is that portion which actually confers the special power, i.e.:-
“…to such children of my said son Thomas as he shall, by Deed Or Will, appoint and in default of appointment to all of the children of the said Thomas Butler as tenants in common in equal shares.”
It was submitted that there is no ambiguity in the immediate relevant portion. If one considers same as a piece of English, it is clear, and it was submitted by Mr. Spierin that the power was conferred on Thomas Butler, Senior.
On the other hand, I have had the benefit of the evidence tendered on behalf of the Plaintiff by Prof. Nicholas Daly of UCD, who deals with the matter on the basis of the information given to him on the face of the affidavit as a piece of English. I will return to this matter in due course, suffice it to say that the factual context under which the Deceased made his will does not appear to have been transmitted to Prof. Daly, who actually simply was asked to carry out an exercise and quite specifically addressed his mind to it. Accordingly, the position about Thomas Butler Senior and his family and Martin Butler Senior and his family do not appear to have been any part of the consideration of the Professor.
Accordingly, if the Court considers that the immediately relevant portion of the will of Timothy Butler Senior is the entirety of the clause set out in the summons that it is not possible to ascertain the intention of the testator as to identify the donee of the power by considering the entire clause as a piece of English, but by their repeated use of the pronoun “he”, the testator could have been referring to either of his sons.
Guideline 2:-
This suggests that the Court have regard to other material parts of the will only if there is an inability to find meaning of the will in the immediately relevant part of the will in order to make “harmonious sense” of the whole. It was submitted by the Defendants that there is no disharmony in identifying Thomas Butler Senior as the donee of the power. This was vigorously challenged by the Plaintiff. It was submitted that it would be most harmonious if the parent of the objects of the power should exercise the power because, as was referred to in another case under the Succession Act by Kearns J. In re ABC Deceased XC & Others -v- R.T. & Others, [2003] 2 IR 250): “Parents must be presumed to know their children better than anyone else.”
Counsel for the Plaintiff took issue with reference to this authority as being applicable in a particular legal context only. However, it seems to me as a matter of ordinary common sense that the person best placed to know their own children is generally the parent of that child rather than their uncle. Equally so, though it did not happen, immediately after the Deceased died Thomas Butler Senior could have by deed made an appointment. Unfortunately, his untimely death did not bring that about and there may also have been differences between himself and his brother and matters were left in abeyance.
If one then has regard to Guideline 3 and to the scheme of the will as a whole, to decide what the testator was trying to do, it seems to me that he was ultimately trying to benefit the children of Thomas Butler Senior. A Court in seeking to resolve the apparent ambiguity, if such exists, in favour of Thomas Butler, being the person with the power, it seems to me that the parent of the objects of the power would be the person best placed to decide how the power was to be exercised. It fits in with what the testator in my judgement was trying to do and the testator would not have anticipated the untimely death of his son, Thomas Butler Senior.
The submission that the donee of the power was to be Martin Butler Senior because, in the events that have happened, the purported exercise by Martin Butler Senior in favour of the Plaintiff has brought about a position where the nephew closest to Martin Butler Senior would be the person most likely to have been appointed by him and would look after Martin Butler Senior’s widow. This is, however, to proceed on the basis of the argument post hoc ergo propter hoc. The Deceased was a farmer, not a clairvoyant, and it is a matter of pure conjecture that matters have emerged as they have.
In my judgement, the determination that Thomas Butler was the intended donee of the power accords with what the entire family believe to be the case as did their solicitor over a long period of time. I think it unnecessary to retrace here what I have said earlier about the general factual background of affairs between the death of the Deceased and the intimation in June 2002 of the understanding of the Plaintiff. In my judgement, the construction which identifies Thomas as the donee of the power does no violence to the intention of the testator. Further, it accords with Guideline 4, which refers to the application of the presumption of equality and against intestacy. I cannot with any certainty say that the Deceased intended to confer the power on Martin Butler Senior and there is nothing in the immediately relevant portion of his will or in the scheme as a whole that would tend to resolve the suggested ambiguity in his favour. I would hold that the objects of the power have taken equally. By severing the portion of the clause which contains the alleged ambiguity and bracketing the expression ” (such of the children of my said son, Thomas Butler, as he shall, by Deed Or Will appoint, and in default of appointment to) all of my children of my said son Thomas Butler as tenants in common in equal shares” the same result ensues the Court is rendering the bequest operative and in accordance with settled law (as expressed in the Succession Act 1965) in giving effect to the intention of the testator in accordance with Curtin -v- O’Mahony earlier referred to.
C. Uncertainty In Powers of Appointment
In my judgement, there is no uncertainty as to who had the Power of Appointment, it was Thomas Butler Senior; but even if there was an uncertainty, I would approach the matter in this way. There are some passages in the textbooks and indeed in some of the older case law which are of assistance in this regard. I have been referred to certain passages in both Delaney Equity and the Law of Trusts in Ireland, 3rd ed., at pages 85 to 88, and also Farwell on Powers, 3rd ed. (1916) at page 132 et al.
In the case of Earl of Bandon -v- Moreland [1910] 1 IR 220, the position was that a power was granted under a settlement to “A. and his heirs and assigns” to “select” part of the settled lands which were thereupon conveyed to “A., and his heirs or assigns” forever, or as he or they shall direct. “It was held that, as A. was a person ascertained within the period, he might validly exercise the power and that, though the power was bad so far as given to his “heirs or assigns” since they were donees not necessarily ascertainable within the period, the invalid portion was severable. The words “heirs or assigns” could not, in the context in which they were used have effect as words of limitation, since a power was not a hereditament. The words “heirs and assigns” is dealt with specifically in the report at page 288 in the judgment of Pimm J.. In my judgment, in the will of the Deceased, after the words “I give, devise and bequeath same to my son Martin Butler for and during the term of his natural life”, the words “and after his death” are superfluous and tautologous because at the end of his natural life, death was the inevitable and it was quite unnecessary to conjunct “and after his death to”, and accordingly in my judgment, the immediately relevant clause is that identified by Mr. Spierin.
D. The Power of Appointment purported to be exercised by Martin Butler Senior
Martin Butler Senior, by his will, appears to have attempted to exercise the Power of Appointment in favour of the Plaintiff. If he honestly believed he had a power by deed or will to so appoint, it is strange that the difficulties in 1980 arose at all, on the basis that he could have carried out his wishes at that time without any question of waiting for a will and avoided, on that version of affairs, the apparently unnecessary joinder in the deed of 1980 of the Defendants in this case. The position in this case is that the Deceased, the grandfather, left to Thomas Butler Senior to deal with matters as he saw fit as between his own children rather than confer on the childless brother, Martin Senior, the entitlement to distribute amongst the siblings that have appeared before me. The purported exercise, though questioned by Mr. Spierin, had as its answer, if it were a valid exercise, the reply from Ms. Stack, that it accorded with what was laid out in Williams 6th ed. 1987 at page 414 (which sets out the essentials for the exercise of a special power by will) viz:
“To exercise a special power, there must be either (1) a reference to the power or (2) a reference to the property the subject of the power or (3) an intention otherwise expressed in the will to exercise the power.”
Now while undoubtedly there is an error in the information given to the solicitor, Mr. Lawlor, because the property was not subject to a trust, that, in my view, is a serious error, but in the circumstances of this case, it is nihil ad rem because I am satisfied that the donee of the power was Thomas Butler Senior.
That determination effectively should resolve the matters in issue between the parties.
E. ESTOPPEL:
However, there remains outstanding the question of estoppel, and I embark upon a determination of this with reluctance and merely for completion. I accept the submissions of the Plaintiff that essentially that it has nothing to do with the construction of the will. However, if I were wrong in either my approach to the application of the guidelines, then it might fall to be determined. Accordingly it would leave a situation in which the exercise by the power or purported exercise by Martin Butler Senior would be ultra vires and, accordingly, it is necessary to proceed to consider estoppel. Mindful that it is a family dispute I do not want to say any more than is necessary and I err on the side of charity. The evidence of the parties is in conflict on the point as to the entitlement of Thomas Butler Senior to appoint, the case of the Defendants was that it was always the belief of the Plaintiff and the Defendants that the Power of Appointment had been conferred on their father, Thomas Butler Senior. It was only after the death of Michael Butler Senior when the Plaintiff had, as he perceived, I presume, the benefit of the purported exercise in his favour that he contended that his uncle, Martin Butler Senior, had the Power of Appointment. This might have been viewed by the Defendants as disingenuous or opportunistic or otherwise. I am content to merely follow the findings of fact I have made in the judgment without attaching such expressions (however justified) to his position.
The Defendants, amongst themselves, throughout the entire period until they receive the correspondence in mid 2002, understood that the Plaintiff was ad idem with them and that their father was the donee of the power. It is perhaps nihil ad rem and perhaps merely looking with the benefit of hindsight that they would have acted differently if the Plaintiff had said to them, or to his solicitor, Ms. Kelly, that he believed that his uncle, Martin Butler, at all times was the donee of the power. They conferred benefit both in the document of 1980 and 1992 to which I have referred and he was content to accept the benefits. If he did know, he refrained from conveying to them frankly what his understanding and agreement was. However, notwithstanding that Ms. Kelly did say that she did not deal with all and every last detail of all the transactions of the family over the period in which she was dealing with them, she did act as the family solicitor over a long period. She had no axe to grind. She was a professional person, independent, and her understanding from dealing with the family and each of its members (and she dealt with them, including the Plaintiff as an individual client) was that at all times the parties understood that Thomas Butler Senior was the donee of the power. Now the fact that the finance house expressed the doubt in 1980 (and that the Defendants signed the document) that is the only doubt that was ever conveyed to the Defendants or to the solicitor who was dealing with the matter. Whatever views the building society or lending institution had are nihil ad rem. They were laid to rest by everyone joining in the deed. It seems to me that except from family loyalty and filial disposition towards their mother in 1992 that the Defendants in these proceedings, who had specific assets conferred to them by the will of their mother, had no reason to relinquish that certainty and throw the entire lot into a mixed fund with the Plaintiff in the absence of a belief that as they were sharing equally with him, so also he would with them in their grandfather’s estate. The property comprised in the mother’s estate has been let and the Plaintiff has always been paid and has accepted his share of the rent, again another indicator. These do not, however, go to the determination of the construction of the will but rather to the conduct of the parties. It seems to me, accordingly, that the Defendants acted to their detriment in the certain belief that their brother, the Plaintiff, accepted that the property comprised in the estate of their grandfather would pass equally to all of them. They conferred the benefit on their brother from the estate of their mother, to which he was not entitled and they did so in the belief that the brother accepted, as represented to them, that the estate of Timothy Butler, Deceased, would pass to all of them equally. The ingredients of an estoppel are present. I do, however, accept that the certainty of fact does create a difficulty but if that difficulty of certainty of fact arises, it arises from either the Plaintiff in bad faith not disclosing what he says in one of his affidavits he believes and believed throughout that Martin Butler Senior was the donee or that he did not so believe and was quite happy to go along with them, so long as benefit was available to him, but when it appeared that the scales had tilted in his favour by the purported exercise by his uncle, he was prepared to stand and take advantage of that position. It seems to me that (1) there was a belief fostered and encouraged by the Plaintiff, which belief is independently confirmed by Ms. Kelly.
(2) There were detrimental acts on the part of his siblings in relation to the estate of their mother predicated on the basis that the estate of Timothy Butler would pass equally and, indeed, in the case of the 1980 document. Whatever benefit in 1980 Thomas received by way of a right-of-way and Martin receiving the site with good title, the two other siblings had nothing whatsoever to gain by appending their name or agreeing to the arrangement. They had no benefit in any shape whatsoever.
Furthermore there was an acceptance also by the Plaintiff of the benefit of the estate from his mother and this is a continued acceptance in the form of rental income, albeit directed through the solicitors, and I can understand that, given the fact that matters became disputatious as between the Plaintiff and the Defendants.
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.’