Redundant Legal Interests
Land and Conveyancing Law Reform Act 2009
PART 2
Ownership of Land
Ownership and abolition of feudal tenure.
9.— (1) From the commencement of this Part, ownership of land comprises the estates and interests specified in this Part.
(2) In so far as it survives, feudal tenure is abolished.
(3) Subsection (2) does not affect—
(a) the position of the State under—
(i) the State Property Act 1954,
(ii) section 73 of the Act of 1965,
(b) the concept of an estate under section 10,
(c) any fee farm grant made in derogation of the Statute Quia Emptores 1290,
(d) any surviving customary right or franchise.
[SQE 1290]
(4) A fee simple remains freely alienable.
Estates and interests in land.
10.— (1) The concept of an estate in land is retained and, subject to this Act, continues with the interests specified in this Part to denote the nature and extent of land ownership.
(2) Such an estate retains its pre-existing characteristics, but without any tenurial incidents.
(3) All references in any enactment or any instrument (whether made or executed before or after the commencement of this Part) to tenure or estates or interests in land, or to the holder of any such estate or interest, shall be read accordingly.
Restrictions on legal estates and interests.
11.— (1) The only legal estates in land which may be created or disposed of are the freehold and leasehold estates specified by this section.
(2) For the purposes of subsection (1), a “freehold estate” means a fee simple in possession and includes—
(a) a determinable fee,
(b) a fee simple subject to a right of entry or of re-entry,
(c) a fee simple subject only to—
(i) a power of revocation,
(ii) an annuity or other payment of capital or income for the advancement, maintenance or other benefit of any person, or
(iii) a right of residence which is not an exclusive right over the whole land.
(3) For the purposes of subsection (1), a “leasehold estate” means, subject to sections 12 and 14, the estate which arises when a tenancy is created for any period of time or any recurring period and irrespective of whether or not the estate—
(a) takes effect in immediate possession or in future, or
(b) is subject to another legal estate or interest, or
(c) is for a term which is uncertain or liable to termination by notice, re-entry or operation of law or by virtue of a provision for cessor on redemption or for any other reason.
(4) The only legal interests in land which may be created or disposed of are—
(a) an easement,
(b) a freehold covenant,
(c) an incumbrance,
(d) a rent payable under a tenancy,
(e) a possibility of reverter,
(f) a profit à prendre, including a mining right,
(g) a public or customary right,
(h) a rentcharge,
(i) a right of entry or of re-entry attached to a legal estate,
(j) a wayleave or other right to lay cables, pipes, wires or other conduits,
(k) any other legal interest created by any statutory provision.
(5) A legal estate or legal interest under this section has, subject to this Act, the same attributes as the corresponding legal estates and interests existing at the commencement of this Part and may exist concurrently with, or subject to, any other legal estate or interest in the same land.
(6) Subject to this Act, estates and interests other than those referred to in subsections (1) to (4) take effect as equitable interests only, but this does not prevent the creation of the estates and interests referred to in those subsections as equitable interests.
(7) Nothing in this Act affects judicial recognition of equitable interests.
(8) Subject to this Act, a power of attorney, power of appointment or other power to dispose of a legal estate or interest in land operates with the same force and effect as such powers had before the commencement of this Part.
(9) All estates and interests in land, whether legal or equitable, may be disposed of.
Prohibition of fee farm grants.
12.— (1) The creation of a fee farm grant at law or in equity is prohibited.
(2) Any instrument executed after the commencement of this Part purporting to—
(a) create a fee farm grant, or
(b) grant a lease for life or lives renewable for ever or for any period which is perpetually renewable,
vests in the purported grantee or lessee a legal fee simple or, as the case may be, an equitable fee simple and any contract for such a grant entered into after such commencement operates as a contract for such a vesting.
(3) A fee simple which vests under subsection (2) is freed and discharged from any covenant or other provision relating to rent, but all other covenants or provisions continue in force so far as consistent with the nature of a fee simple.
(4) Subsection (2) does not apply to any contract or instrument giving effect to a contract entered into before the commencement of this Part.
(5) Notwithstanding section 11(2), any fee simple held under a fee farm grant existing at law at the commencement of this Part continues as a legal estate and may be disposed of.
(6) Notwithstanding section 11(4), any fee farm rent existing at law at the commencement of this Part continues as a legal interest and may be disposed of.
Abolition of the fee tail.
13.— (1) The creation of a fee tail of any kind at law or in equity is prohibited.
(2) Any instrument executed after the commencement of this Part purporting to create a fee tail in favour of any person vests in that person a legal fee simple or, as the case may be, an equitable fee simple and any contract for such a creation entered into before or after such commencement operates as a contract for such vesting.
(3) Where—
(a) immediately before the commencement of this Part, a person was entitled to a fee tail at law or in equity, or
(b) after such commencement, a person becomes entitled to such a fee tail,
a legal or, as the case may be, an equitable fee simple vests in that person on such commencement or on that person becoming so entitled provided any protectorship has ended.
(4) In subsection (3)“fee tail” includes—
(a) a base fee provided the protectorship has ended,
(b) a base fee created by failure to enrol the disentailing deed,
but does not include the estate of a tenant in tail after possibility of issue extinct.
(5) A fee simple which vests under subsection (2) or subsection (3) is—
(a) not subject to any estates or interests limited by the instrument creating the fee tail to take effect after the termination of the fee tail,
(b) subject to any estates or interests limited to take effect in defeasance of the fee tail which would be valid if limited to take effect in defeasance of a fee simple.
Prohibition of leases for lives.
14.— The grant of a lease for—
(a) a life or lives,
(b) a life or lives combined with a concurrent or reversionary term of any period,
(c) any term coming to an end on the death of a person or persons,
and any contract for such a grant made after the commencement of this Part is void both at law and in equity.
Cases
Bank of Ireland and Others v. Domvile
[1956] IR 44
Dixon J.
DIXON J. :
8 Dec.
The questions to be determined in this case relate to three estates which have been in the Domvile family for many years, and which, for convenience, may be shortly referred to as the Santry estate, the Mayo estate and the Kilternan estate, respectively. The first and third of these, as the names suggest, are situated in the County of Dublin. The greater part of these estates has been sold under the provisions of the Irish Land Acts and in other ways and is now represented by invested capital monies; but some portions of the Santry and Kilternan estates still remain unsold. As to all the estates, questions arise as to the exercise by will of a power of appointment in respect of them. As to the Santry estate, questions arise as to whether the base fee which subsisted therein has been enlarged, either in respect of both the unsold lands and the investments representing the lands sold or in respect of any part of either. As to the Mayo estate, the same question arises as to the possible enlargement of a base fee, but only in respect of investments representing lands sold, since all the lands comprised in this estate had been sold by the relevant date. The Kilternan estate was not at any time held on a base fee.
The question of enlargement may conveniently be dealt with first. For this purpose, the history of the estates goes back to the year 1854, when Sir Compton Domvile was owner in fee of the Mayo and Kilternan estates and was tenant for life of the Santry estate with remainder therein to his eldest then surviving son, Charles Compton William Domvile, in tail. In that year, his second surviving son, William Compton Domvile, married Miss Caroline Meade; and two settlements were entered into. In the same year, Sir Compton made what proved to be his last will. As a result of these three documents, all three estates became settled or resettled in ways that require to be stated in a little detail.
The Kilternan estate was first dealt with, in a settlement dated the 22nd August, 1854, entered into pursuant to marriage articles of the 8th July, 1854, whereby Sir Compton Domvile had agreed to settle both the Kilternan estate and the Mayo estate. The net effect of this settlement was that the Kilternan estate was limited to Sir Compton Domvile for life, with remainder to the second son, William Compton Domvile, for life and, after his death, to his first and other sons successively in tail male, with the reversion to Sir Compton Domvile in fee. This document may conveniently be called the Kilternan settlement.
The Santry estate was settled by a deed of the 24th August, 1854, the way having been paved for this by a disentailing deed executed the previous day by Sir Compton and the eldest son, Charles Compton William. This deed may be called the Santry settlement, although it also dealt with the Kilternan estate in a way that will appear shortly. The net effect of it was to limit the Santry estate to uses which, so far as now material, were successively as follows: Sir Compton Domvile for life; the eldest son, Charles Compton William Domvile, for life; the second son, William Compton Domvile, for life; his first and other sons successively in tail male; the first and other daughters of William Compton Domvile successively in tail male; Anne Helena, wife of Sir Thomas Edward Winnington and eldest daughter of Sir Compton Domvile, for life; Francis Salway Winnington, second son of the said Anne Helena Winnington, for life; his first and other sons successively in tail male; the third and other subsequently born sons of the said Anne Helena Winnington in tail male; Helena Caroline Winnington, eldest daughter of the said Anne Helena Winnington, for life; her first and other sons successively in tail male; Edith Joanna Winnington, second daughter of the said Anne Helena Winnington, for life; her first and other sons successively in tail male; the third and other subsequently born daughters of the said Anne Helena Winnington in tail male; the first and other daughters of William Compton Domvile in tail general; the first and other daughters of Anne Helena Winnington in tail general; and finally, Sir Compton Domvile his heirs and assigns for ever.
In this statement, some uses, which failed to take effect or can no longer take effect, have been omitted.
This deed also settled, on the same uses as the Santry estate, the reversion in fee of the Kilternan estate under the Kilternan settlement. In the event, Sir Compton Meade Domvile, the only son of William Compton Domvile’s marriage with Miss Caroline Meade, became tenant in tail male of the Kilternan estate. As he died without having been married and without having barred the entail, this estate reverted in fee to the settlor (Sir Compton Domvile) under the Kilternan settlement. Consequently, as from the death of Sir Compton Meade Domvile, which occurred in 1935, the Kilternan estate became subject to the uses of the Santry settlement so far as then capable of taking effect. By that time, as will be seen later, the uses of the Santry settlement in favour of the first and other daughters of William Compton Domvile had become operative.
One other provision in the settlement under consideration the Santry settlementrequires to be noted. It is a”shifting clause” which provided that, if the said Francis Salway Winnington or any male issue of the said Anne Helena Winnington, being a tenant in tail male by purchase under any of the limitations therein contained, should succeed to the baronetcy then enjoyed by the said Sir Thomas Edward Winnington, then the estate should go and remain to the uses and upon the trusts to which the same would have stood limited and settled thereunder if the person so succeeding to such baronetcy were dead without issue male.
The third estatethe Mayo estatewas dealt with by Sir Compton Domvile in his last will, dated the 28th August,1854. He thereby devised the Mayo estate to trustees upon trust to convey it to the uses and upon the trusts provided for in the marriage articles of the 8th July, 1854 subject thereto, to the uses and upon the trusts of the Santry settlement. He died in 1857, and a formal settlement of the Mayo estate was executed by the trustees on the 3rd August, 1877. The uses declared by this document were successively as follows:William Compton Domvile for life; his first and every other son successively in tail general; his first and every other daughter successively in tail general; the uses of the Santry settlement relating to the reversion in the Kilternan estate.
As in the case of the Kilternan estate, on the death of Sir Compton Meade Domvile, already referred to, the use in favour of the first and other daughters of William Compton Domvile in tail became operative as to the Mayo estate.
As will appear shortly, the entail of the Kilternan estate and the estates in remainder thereto have been barred and the interest enlarged into a fee simple absolute. As to the Santry and Mayo estates, however, there is still a question as to how far the trusts of the respective settlements are still operative and a possibility that one or other of the subsequent limitations therein may take effect or be capable of taking effect in certain events. It is material, therefore, that these interests should be adequately represented on any consideration of matters likely to affect them. For this purpose, the defendants, Eric Thomas Henry Hanbury-Tracey and Thomas Foley Churchill Winnington, have been made defendants. From the pedigrees which have been exhibited, and which are not disputed, it appears that one or other of these defendants is the person now entitled, in remainder expectant on the failure of issue of the first and other daughters of William Compton Domvile, as tenant in tail male in respect of the Santry estate and as tenant in tail in respect of the Mayo estate. Which of them it is depends on whether the “shifting clause”already quoted from the Santry settlement has operated. All the interests in remainder expectant after such failure of issue have this much in common, that they are contingent on that failure and are therefore equally concerned with the questions involved in the present case, since those questions do not touch on the nature of those interests or any possible conflicts between them but on whether, in the events that have happened, any of such interests are capable of taking effect even in the event of such failure of issue.
Accordingly, I think it would be proper to make a representative order in the present case. As the interests in question may also have been restored or re-created by two documents which have to be considered later, the representation should extend to the interests under those documents. The full representation order would then be to appoint these two defendants to represent the class of re-maindermen entitled under the limitations of the Santry and Mayo settlements respectively after the failure or determination of the respective estates thereby limited to the first and other daughters of William Compton Domvile in tail male and in tail respectively and also the class of re-maindermen entitled under the limitations and trusts contained in the deed of enlargement, dated the 10th December, 1941, and the deed of resettlement, dated the 20th January, 1947, to take effect after the death and failure of male issue of Sir Hugo Compton Domvile Poe-Domvile, for the purpose of the determination of the questions herein.
Some support can, I think, be found for making such an order in the present case in the decisions of Kay J. in In re Foster (1), and of Stirling J. in In re Nash (2).
While the various settlements, which have been summarised above, appear somewhat complex in their provisions, the actual history of the devolution of the three estates is comparatively short and simple, because Charles Compton William Domvile died in July, 1884, without issue, and William Compton Domvile died a few months later. His surviving issue were one son, Sir Compton Meade Domvile, who succeeded to the baronetcy, and one daughter, Mary Adelaide Domvile. The effect of the settlements and documents already referred to was that this son became tenant in tail male in possession of the Kilternan and Santry estates and tenant in tail general in possession of the Mayo estate, with remainder to his sister, Mary Adelaide Domvile, in tail male and in tail general respectively.
The next important date is the year 1886, when a marriage took place between Mary Adelaide Domvile and Colonel Sir William Hutcheson Poe. Prior to her marriage she executed two disentailing deeds, both dated the 12th January, 1886. One of these dealt with her estate in remainder in the Kilternan and Santry estates, the other with her estate in remainder in the Mayo estate. The validity and effect of these documents, as disentailing assurances, came before, and was decided by, Mr. Justice Johnston in 1939. The documents themselves were not before him, having been lost and only since found, but he had, and decided that he had, sufficient evidence of execution and enrolment and of their contents to determine the questions involved. The effect of his decision was that the entail of the interest of Mary Adelaide Domvile and all estates in remainder thereto had been effectually barred as to the Kilternan estate, while only the entail had been barred as to the Santry and Mayo estates. Thus, her interest in remainder expectant on the death of her brother, Sir Compton Meade Domvile, without male issue or without issue, as the case might be, had become, as to the Kilternan estate, a fee simple, but, as to the other two estates, had become only a fee simple defeasible on the failure of her own male issue or issue, respectively, that is, a base fee.
The reason for the distinction between the Kilternan estate and the other estates is that the interests of Sir Compton and his sister arose, as to the Kilternan estate, under different instruments while, in the case of the other two estates, the instrument was the same in each case. Accordingly, as to these two estates, Sir Compton, as tenant in tail in possession, was the protector of the relevant settlement. It was not, however, possible to obtain his consent or concurrence, for the reason that he was, and had on the 15th April, 1885, been so found, a person of unsound mind. The assistance of the Court, which could have authorised the exercise of his powers, was not sought, but, as was pointed out by Mr. Justice Johnston, it is very doubtful if the Court would have intervened in view of the principle laid down by the Court of Appeal in England in In re E.D.S. (1) and to which reference may have to be made later.
It is material, for the purpose of some of the questions to be answered, to set out the uses expressed in the disentailing deeds. In the case of the Kilternan and Santry estates, the grant was to Richard Walter Tweedie (the grantee) and his heirs to have and to hold the premises, subject to the estate in tail male in possession of Sir Compton Meade Domvile and to a term of years not now material, unto the said Richard Walter Tweedie and his heirs freed and discharged from all estates in tail male or in tail of the said Mary Adelaide Domvile to such uses upon such trusts and with under and subject to such powers provisions and limitations as the said Mary Adelaide Domvile by any deed or deeds with or without power of revocation and new appointment or by her last will or any codicil thereto should appoint; and, in default of and until such appointment and so far as any such appointment should not extend, the uses were to be those of the settlement of the 24th August, 1854, that is, the Santry settlement.
In the case of the Mayo estate, the uses were expressed in a similar manner, except that, in default of appointment, the uses were to be those of the settlement of the 3rd August, 1877, that is, the Mayo settlement.
In fact, Mary Adelaide Domvileor, as it will now be convenient to call her, Lady Poedid not survive Sir Compton Meade Domvile. She died on the 28th March, 1929, while he died six years later, on the 22nd April, 1935. The latter is an important date in connection with the question of enlargement, since, as already stated, Sir Compton Meade Domvile died without ever having married and without his estates tail having been enlarged. In consequence, the fee simple in the Kilternan estate and the base fees in the other estates devolved in accordance with the uses expressed in the respective disentailing deeds of the 12th January, 1886. Lady Poe purported to exercise by will the powers of appointment reserved by those deeds and the devolution accordingly depended, and depends, on whether, and how far, the exercise of those powers was effective. These are matters that have to be decided in this suit, although, to some extent, they have already been dealt with by Mr. Justice Johnston in the proceedings already referred to, since part of his decision was to the effect that her will was effectual to pass to the trustees thereof an estate in fee simple in the Kilternan estate and a base fee in the Santry and Mayo estates.
Lady Poe’s will consisted of two testamentary documents both duly executed on the same day, 28th January, 1926, and which were admitted together to probate here as one will by Mr. Justice Hanna. A difficulty of construction, as to which part of this composite will dealt with the estates now in question, was decided by Mr. Justice Johnston in the former proceedings and does not now have to be considered. At the date of her will and at her death, Lady Poe had two children surviving. They were Sir Hugo Compton Domvile Poe and Isabel Mary Poe. The latter is a party to these proceedings as is Sir Hugo by his committee, he having been declared a person of unsound mind by order of the 10th May, 1929, and having been a ward of Court since then. In order to comply with a “name and arms” clause in the Santry settlement of the 24th August, 1854, steps were taken on his behalf in 1936, both in England and here, to authorise him to assume the name of Domvile and to bear the arms of Domvile quartered with those of Poe. His full title is, therefore, Sir Hugo Compton Domvile Poe-Domvile, but it will be convenient to refer to him as Sir Hugo.
For the moment, the effect of Lady Poe’s will, as interpreted by Mr. Justice Johnston need only be shortly stated; it will have to be considered in more detail later. It devised and bequeathed all her real and personal property including property over which she should have a general power of appointment or disposition by will upon trust for conversion into money. After providing for certain payments out of the fund so formed, it directed the trustees to invest the residue of the said monies (called”the Trust Fund”) and the income of the Trust Fund was to be paid to her husband for his life, and, on his death, the trustees were to stand possessed of the capital and future income of the Trust Fund for her son and her daughter in equal shares but subject as next thereinafter provided. There then followed a series of complicated provisions as to the “son’s share” and the “daughter’s share” of the Trust Fund, as to which it is sufficient to say, for the moment, that each took at least a life interest in the appropriate share.
Sir William Hutcheson Poe survived Lady Poe by a few years, dying on the 30th November, 1934, but, as he thus died before the tenant in tail in possession, Sir Compton Meade Domvile, he did not enter into receipt of the income of any of the estates now in question. From and after the death of Sir Compton, on the 22nd April, 1935, that income seems to have been received by Cecil Henry FitzHerbert, the present committee of Sir Hugo. He had been in possession as receiver appointed during the wardship of Sir Compton and was also committee (with Elizabeth Patton) of Sir Hugo as from March, 1935, and sole committee of Sir Hugo as from May, 1935, after the death of Elizabeth Patton in that month. He was also receiver in the matter of Sir Hugo as from the 9th October, 1941. As from the latter date, he applied the income equally as between Sir Hugo and Isabel Mary Poe, while a moiety of the income received between the death of Sir Compton in 1935 and the 9th October, 1941, was accounted for and subsequently paid to Miss Poe. The beneficiaries under the will of Lady Poe have, thus, been in receipt of the income in the proportions provided for in the will and, as between them and Cecil Henry Fitzherbert, he must, in my view, so far as he was in possession, be regarded as merely their agent. The trustees of the will had, of course, and continue to have, legal seisin of the estates.
If the disentailing deeds of 1886 had been executed after the death of Sir Compton Meade Domvile, they would have been effectual not only to bar the entail but also to bar all estates to take effect after or in defeasance of the estate tail; and the question therefore arises whether they have become so effectual, under s. 6 of the Real Property Limitation Act, 1874, after the expiration of 12 years from such death, that is, as from the 22nd April, 1947. As of this latter date, the Mayo estate had all been sold; but the Santry estate consisted partly of invested proceeds of sale and partly of unsold lands; and the effect of the section must be considered in relation to both the investments and the unsold lands.
Sect. 6which replaced s. 23 of the Real Property Limitation Act, 1833, and reduced the period from twenty to twelve yearsreads as follows:
“When a tenant in tail of any land or rent shall have made an assurance thereof which shall not operate to bar the estate or estates to take effect after or in defeasance of his estate tail, and any person shall by virtue of such assurance at the time of the execution thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in receipt of such rent, and the same person or any other person whosoever (other than some person entitled to such possession or receipt in respect of an estate which shall have taken effect after or in defeasance of the estate tail) shall continue or be in such possession or receipt for the period of twelve years next after the commencement of the time at which such assurance, if it had then been executed by such tenant in tail, or the person who would have been entitled to his estate tail if such assurance had not been executed, would, without the consent of any other person, have operated to bar such estate or estates as aforesaid, then, at the expiration of such period of twelve years, such assurance shall be and be deemed to have been effectual as against any person claiming any estate, interest, or right to take effect after or in defeasance of such estate tail.”
This section does not expressly say that the assurance referred to in it must have been one that was effective to bar the entail, e.g., by being duly enrolled under the Fines and Recoveries Act, 1834; but this was decided to have been the meaning of the corresponding s. 23 of the Act of 1833, which was in substantially the same wording. This was decided by Lord Cranworth in Penny v. Allen (1)and by Lord Romilly M.R. in Morgan v. Morgan (2). These cases were also cited in support of the proposition that the section under consideration should, as an enactment of limitation, receive a strict construction; but this proposition was assented to by all the parties.
Lord Cranworth put the matter succinctly thus (at p. 426):”The object of the 23rd section was to give effect to acts of a tenant in tail against re-maindermen and reversioners, and to give effect to assurances, which, although they were effectual to bar the issue, were ineffectual to bar those entitled in remainder.”
There is no doubt now that the disentailing deeds of 1886 were effectual to bar Lady Poe’s own issue; and the questions to be decided, then, are whether they constitute in every other respect assurances of the type contemplated by the section and whether there has been possession of the type contemplated for the requisite period by virtue of such assurances. This paraphrase of the section may be said to involve the assumption that the possession must be, and continue during the twelve years to be, a possession by virtue of the assurance. This may not be strictly accurate, as the reference to “any other person whosoever” would appear to contemplate a successor in title whose possession might not be correctly described as being by virtue of the original assurance; but such successor must, in my view, derive his title from or under some person who entered into possession by virtue of the assurance. Even on the most liberal reading of the section, possession must at some time have been held by virtue of the assurance.
The uses of the disentailing deeds have been already quoted, and, subject to the power of appointment reserved to Lady Poe, were merely the uses of the existing settlements. This power of appointment added nothing to their effect, being merely a recognition of the power of disposition of a limited interest which Lady Poe obtained by the disentailing process itself. They amount, therefore, to no more than disentailing deeds. The nature of such a deed was considered in In re Gaskell and Walters’ Contract (1), by the Court of Appeal in England, and it was there held that a disentailing deed was not an “alienation”within the meaning of s. 8 of the Forfeiture Act, 1870; and, accordingly, it could be executed by a convict. Cozens-Hardy L.J. said (at p. 10):”Alienation implies a transaction by which property is given to another person, but here there is no other person, unless a grantee to uses can be so regarded.” Similarly, in Lord Lilford v. Attorney-General (2), it was held that a disentailing deed executed by a tenant in tail does not destroy the interest he possesses in the estate, but enables him, by the exercise of the power which that interest gives him, to render it perpetual. This, of course, refers to a case where there is no protector or the consent of the protector, if there is one, is obtained; but the principle is the same where the result of the deed is a base fee rather than a fee simple. In reference to the power of disposition thus acquired, Lord Cranworth said(1):”And, therefore, when he executed the disentailing deed . . . and so became the owner in fee simple, he may be treated as having . . . been competent to dispose by will of a continuing interest in the property. . . . He was competent to dispose by will of an interest in the property coming from the predecessor to him and continuing to his devisees.” In the same way, Lady Poe became competent to dispose by will, apart from any power of appointment, of an interest which might come to her under the settlements and might enure for the benefit of her devisees.
It is in line with this view of the purpose and effect of a disentailing deed that the Irish Court of Appeal, affirming Porter M.R., held in Lynch v. Clarkin (2), that, where the uses declared did not exhaust the fee, the deed was still effective to bar the entail and there was a resulting trust of the fee in favour of the former tenant in tail.
Reference should also be made to Cannon v. Rimington (3), which was a decision on s. 21 of the Limitation Act of 1833. This section purported to bar the right of the re-maindermen where the right of the tenant in tail to make an entry or distress had become barred by lapse of time; and it was held, in that case, that the section did not apply where the tenant in tail had made a feoffment and thus put it out of his power to bring an action or make an entry, time only running against the re-maindermen from his death. There is considerable force in the argument that s. 6 of the Act of 1874, regarded as a re-enactment of s. 23 of the Act of 1833, is complementary to s. 21 of the Act of 1833, and, thus, makes provision, in favour of the feoffee and his successors, for such a feoffment. This possibility was suggested in the argument of counsel for the demandant in Cannon v. Rimington (4) in these words:”The 21st and 22nd sections are pure clauses of limitation: they do not apply to validate invalid conveyances; that is done, in a very guarded manner, by section 23.” Although the general effect of the argument was adopted by the Court, this point was not expressly dealt with. On the foregoing cases and on a consideration of the section as a whole, I have formed the view that a mere disentailing deed was not the type of assurance contemplated by it. If it were so, the section would necessarily apply where a tenant in tail had executed a disentailing deed, without the consent of the protector, and subsequently came into possession and remained in possession for twelve years after the death of the protector, although at any time during the twelve years he could have enlarged the base fee by taking the appropriate steps. It is difficult to conceive of the Legislature intending to provide for such a case, while it is easy to see some force in the claim of a purchaser or grantee from the tenant in tail, who might not be able to obtain or compel an enlargement, to protection. If it be said that, while the section contemplated and provided for the latter case, its terms are wide enough to include the former, this would be to give the section a wide rather than a narrow construction, contrary to the agreed method of approach.
It is difficult to divorce this question from a consideration of the requirement that there should be possession by virtue of the assurance, because this requirement itself suggests that the assurance must be of a kind that confers or is capable of conferring a right to possession, and this does not hold good of a mere disentailing deed. Such a deed does not confer any fresh right to possession on the disentailor or a right to possession on any other person; and, if the disentailor is already in possession, he continues in possession by virtue of the original settlement and not by virtue of the disentailing deed. This is the effect of the decision of Joyce J. in In re Trevanion . Trevanion v.Lennox (1), applied by Peterson J. in In re Fowler . Fowlerv. Fowler (2), and I respectfully adopt the views of these learned judges.
There is, therefore, I think, no doubt that, if Lady Poe had survived Sir Compton Meade Domvile, she would have entered into possession by virtue of the settlements and so continued in possession although she had, by her own act, altered the character of her interest. When she did not survive him, is it possible to say that the trustees of her will or the beneficiaries thereunder entered into possession by virtue of the disentailing deeds of 1886? Those deeds enabled Lady Poe to make an effective disposition of the lands by will, but I find it impossible to take the view that the right to possession of the trustees or of the beneficiaries did not depend, at least primarily if not exclusively, on her will. Even if I were disposed to take the viewwhich I am notthat such possession could be said to be by virtue of the combined effect of those deeds and the will, I do not think this would satisfy the requirement of the section that possession should be “by virtue of such assurance.”This view is not modified by the circumstance that the provisions in the will were clearly intended to be an exercise of the powers of appointment contained in the deeds. In the first place, as already pointed out, the power of testamentary disposition existed independently of its expression or reservation in the deeds. Secondly, I do not think the principle applied in cases like Attorney-General v. Earl of Selborne (1), that the estates created by the execution of a power take effect in the same manner as if created by the deed that raised the power, can be applied to the interpretation of the words used in s. 6 of the Act of 1874. In any event, such estates, as recognised in the statement of the principle, are created by the exercise of the power and, normally, take effect from the time of execution. Similarly, here, the right to possession was created by the will and took effect from the date of operation of the will, the death of Lady Poe.
This view as to the proper construction of s. 6 disposes of the question of enlargement under that section as to both the unsold lands and the invested proceeds of lands sold. If, however, I am wrong as to the application of the section to the unsold lands, I take the view that the section does not apply to the invested proceeds of any lands sold prior to the expiration of the period of twelve years. In other words, the section applies only to land as a corporeal hereditament. This is what the definition section says. Sect. 1 of the Act of 1833which, by virtue of s. 9 of the Act of 1874, is also the definition section for the Act of 1874defines “land” as extending “to manors, messuages, and all other corporeal hereditaments whatsoever, and also to tithes (other than tithes belonging to a spiritual or eleemosynary corporation sole), and also to any share, estate, or interest in them or any of them, whether the same shall be a freehold or chattel interest, and whether freehold or copyhold, or held according to any other tenure.”There follows a definition of “rent” and there is a reference to “rent” in s. 6, but it is conceded that this means something in the nature of a rentcharge and has no application in the present case. Several sections of these Acts can be pointed to which could only apply to land as a corporeal entity sections referring to making an entry or distresswhile no
section was referred to which required “land” to be read in the sense of the proceeds of sale of land or of money directed to be laid out on land. It was, however, contended that the provisions of s. 22, sub-s. 5, of the Settled Land Act, 1882, attracted the provisions of s. 6 of the Act of 1874 so as to make them applicable to capital monies arising under the Settled Land Acts. The sub-section in question provides: “Capital money arising under this Act while remaining uninvested or unapplied, and securities on which an investment of any such capital money is made, shall, for all purposes of disposition, transmission, and devolution, be considered as land, and the same shall be held for and go to the same persons successively, in the same manner and for and on the same estates, interests, and trusts, as the land wherefrom the money arises would, if not disposed of, have been held and have gone under the settlement.”
There might have been considerable cogency in this argument if the sub-section had merely provided that the capital monies should be considered as land for all purposes and the last portion of the sub-section had been omitted. They are, however, only made land for the specified purposes of disposition, transmission, and devolution; and the last portion of the sub-section strongly indicates that the object was to secure that they should continue to be subject to the limitations and trusts of the settlement. The meaning of this sub-section was considered in In re Midleton’s Settlement (1), where Lord Greene M.R. said (at p. 591):”In my view, it is quite a mistake to regard this sub-section as equivalent to or as expressing the same results as would arise on a conversion under the ordinary equitable doctrine of conversion. . . .” It does not say anything of the kind. It is only for certain limited and stated purposes that the proceeds are to “be considered as land” and they are to be “held for and go to the same persons successively, in the same manner and for and on the same estates, interests, and trusts, as the land wherefrom the money arises would, if not disposed of, have been held and have gone under the settlement.” The object clearly is to preserve the beneficial interests and cause them to attach to the capital money in the same way as they attached to the land from which it was derived. The decision of the Court of Appeal in this case was affirmed in the House of Lords (2). So far as that decision was concerned with assessment to estate duty not being a purpose of devolution within the sub-section, it may not be consistent with that of our own Divisional Court in In re Stoughton (1); but nothing in the latter case conflicts with the view of the sub-section which I have quoted and which I adopt.
It was, however, contended that the effect of s. 6, like other limitation enactments dealing with real property, was not merely to bar a right but to confer a title to the land, and that this amounted to a “disposition” within s. 22, sub-s. 5. It is true that expressions can be found in reported cases suggesting a transfer of ownership: such as by Parke B. in Doe d. Jukes v. Sumner (2):”The effect of the Act is to make a parliamentary conveyance of the land to the person in possession after that period of twenty years has elapsed”; and by Jessel M.R. in Dawkins v.Lord Penrhyn (3):”. . . it is a divesting of title or a transfer of title to somebody else.” These expressions were however obiter as to whether there was an actual transfer of title from the dispossessed owner; and the more correct view seems to be that of Holmes L.J. in O’Connor v. Foley (4). He there said:”I prefer to hold that, although there is not a direct transfer to the wrongdoer who has been in possession, yet the title gained by such possession is limited by rights yet remaining unextinguished, and is commensurate with the interest which the rightful owners lost by the operation of the statute, and has the same legal character.” Apart from the doubt I feel whether s. 22, sub-s. 5, applies at all to an involuntary transaction, so far as a “disposition” is concerned, I do not think the type of operation effected by the statutes of limitation is within the contemplated purposes.
Neither of these base fees having then, in my view, been enlarged by the operation of s. 6 of the Real Property Limitation Act of 1874, the question arises whether there was an enlargement by the operation of s. 16 of the Fines and Recoveries (Ireland) Act, 1834. This section may have operated in respect of three deeds executed by Sir Hugo through his committee, two of them being executed in 1941 and one in 1946. These deeds were followed by a deed of resettlement of the 20th January, 1947, as to the validity and effect of which questions also arise. All these deeds dealt only with the Santry estate so that, if there has been an enlargement, it is only as to the Santry estate; and the Mayo estate continues to be held on a base fee.
Sir Compton Meade Domvile having died on the 22nd April, 1935, and Lady Poe being then dead, Sir Hugo would have become, under the Santry settlement, as from that date, tenant in tail male in possession of the Santry estate, and, as such, entitled to enlarge the base fee and bar all interests in remainder or reversion after the estate tail. This is the effect of s. 16 of the Act of 1834, substituting a deed for the old process of suffering a recovery. This section reads:”. . . after the thirty-first day of October one thousand eight hundred and thirty-four, in every case in which an estate tail in any lands shall have been barred and converted into a base fee, either before or on or after that day, the person who if such estate tail had not been barred would have been actual tenant in tail of the same lands shall have full power to dispose of such lands as against all persons whose estates are to take effect after the determination or in defeasance of the base fee into which the estate tail shall have been converted, so as to enlarge the base fee into a fee simple absolute. . . .”There follows then a saving clause as to the rights of the Crown in certain events and as to the rights of all persons in respect of estates prior to the estate tail and of all other persons except those against whom such disposition is by the Act authorised to be made. This clause is not material for present purposes.
It will be observed that the person authorised to make the enlarging disposition is the person who would have been “actual tenant in tail” if the estate tail had not been barred, and, according to s. 1 of the Act, this expression”shall mean exclusively the tenant of an estate tail which shall not have been barred, and such tenant shall be deemed an actual tenant in tail, although the estate tail may have been divested or turned to a right.” It has been held, accordingly, that the corresponding section of the English Act is not confined to cases where the tenant in tail is owner of the base fee into which his estate tail has been converted: Bankes v. Small (1). Sir Hugo, in fact, acquired an interest in the base fee under the will of his mother, Lady Poe; but this circumstance is irrelevant to his having the power conferred by s. 16. His incapacity, however, would have prevented him exercising the power during the relevant period, although it could be exercised on his behalf by the Court of which he was a ward, if that Court thought fit.
The matter did in fact arise and was considered by that Court, in the year 1940, in connection with a proposed acquisition of part of the Santry estate by the Dublin Corporation; and an order was made on the 30th July, 1940, by the President of the High Court in the matter of Sir Hugo Compton Domvile Poe-Domvile, a ward of Court. The curial part of that order read as follows:”It is ordered that the petitioner as committee of the ward be at liberty in the name and on behalf of the ward to execute a deed enlarging the base fee in that part of the Santry estate comprising Santry Court and Demesne and the premises 25, 26 and 27 Chancery Street and numbers 1 to 4 inclusive Greek Street being the premises acquired by the Corporation of Dublin into an estate in fee simple such deed to be conditional on the payment of the net proceeds of the sale of the property comprised in the said deed of enlargement to the trustees for the time being of the settlement of 24th August, 1854, for the purposes of the Settled Land Acts, 1882-1890, and on the execution by the trustees of the will of Dame Mary Adelaide Poe by Miss Isabel Mary Poe and by the petitioner Cecil Henry fitzherbert on behalf of the ward of an indenture resettling the said net proceeds to the satisfaction of the Registrar in such manner that after the death and failure of male issue of the ward the said net proceeds and the investments representing the same shall be applied in the purchase of freeholds of inheritance in Éire , England or Wales to be assured to such uses upon such trusts and subject to such powers and provisions as would have been operative in respect of the said lands and premises after the death and failure of male issue of the ward had such sales not been made and such enlarging deed not been executed.”
Pausing here for a moment, it seems perfectly clear what this order contemplated and was designed to effect. In the first place, for the purpose of carrying out a sale, which was presumably for the ward’s benefit and was apparently, in any event, in the nature of a compulsory acquisition, the committee was authorised to exercise the ward’s power of enlargement on his behalf. This enlargement was, however, only intended to be effective so far as was necessary to carry out the sale. In other words, while an indefeasible title would be conferred on the purchaser, the transaction was neither to affect adversely nor to enlarge the rights or interests which would have subsisted if no sale had taken place. This would involve attaching those rights and interests to the proceeds of sale and, in particular, restoring, so far as it could be done, the base fee. A difficulty was, however, created by the Act itself, which does not contemplate anything in the nature of a provisional or limited enlargement but, rather, that an enlargement should be effective for all purposes. Sect. 18 of the Act does providefor limited dispositions but only in the sense that certain dispositions of a limited character shall not operate as enlargements at all. This difficulty was met by the portion of the order which made the exercise of the power of enlargement conditional on the execution of a deed of resettlement of the nature indicated. The base fee would only have subsisted so long as the ward lived and so long as there might be male issue of the ward; but, so long as it subsisted, it could have been dealt with, and interests could have existed in it, as if it were a fee simple, as, for example, under the provisions of Lady Poe’s will. This is, then, the meaning of the portion of the order that provides that, after the death and failure of male issue of the ward, the limitations of the resettlement are to be those that would have been operative if there had been no sale or enlargement. These would be the estates, interests, or rights, taking effect after or in defeasance of the estate tail which had been converted into a base fee. Pending such death and failure of male issue, the proceeds would presumably be held on the same trusts as the base fee that is, in the present case, the trusts of Lady Poe’s will. The direction to lay out the net proceeds and the investments representing the same, at the appropriate time, in the purchase of freeholds of inheritance would effect a conversion into reality if this were necessary to enable those estates, interests, or rights to take effect. The parties who were to join in the resettlement were all represented on the hearing of the petition and were bound by the order made thereon.
This view of the order of the 30th July, 1940, accords with the practice of a Court exercising the jurisdiction in lunacy, as laid down in the case of In re E.D.S. (1),already referred to. It was there decided by the Court of Appeal in England that a lunatic’s power to bar the entail is a power vested in him for his own benefit and that the Court has jurisdiction in lunacy to authorise the committee to sell the property so as to bar the entail. It was, however, added by the Court that, under ordinary circumstances, the proceeds of sale should be resettled by the Court under its general jurisdiction so as not to prejudice the re-maindermen; and an approved form of order is set out (at p. 630 of the report) which does not differ materially in substance from the order under consideration. The judgments contain the following observations:”It is settled that the Judge in Lunacy ought not, in ordering a sale, to defeat the interests of the re-maindermen”: per Cozens-Hardy M.R., at p. 624; “. . . according to the practice of the Court in Lunacy the consent of the Court to the sale is given only upon the terms that the proceeds are resettled to the same uses as before”: per Buckley L.J., at p. 627; and “. . . it is the settled rule in lunacy to avoid anything that will prejudice the next of kin, heirs, or successors in title of a lunatic”: per Phillimore L.J., at p. 629. The same approach to this question is noted in Vaizey on Settlements at p. 1596, where authority is quoted for the principle that the entail of a lunatic’s property ought not to be barred further than is necessary for the purpose of the particular transaction and that, as between the lunatic and the re-maindermen it is the duty of the Court not to alter the nature of the property or the devolution of the estate after the death of the lunatic.
I can now return to the order of the 30th July, 1940, of which I have cited the portion giving rise to the observations just made. The remaining portion of that order conferred a similar power of enlargement on the committee as to any other portion of the Santry estate for the purpose of enabling dispositions to be made, but subject to an application for approval being made to the Court and subject to a similar condition as to the trusts of the net capital monies received or arising on any such disposition. This last condition was, in fact, even more specific as to these trusts than the earlier portion of the order had been. This second portion of the order reads as follows:
“And it is further ordered that the petitioner as such committee be at liberty in the name and on behalf of the ward to execute a further deed or further deeds of enlargement to the extent and for the purpose of enabling grants to be made of other portions of the Santry estate to purchasers or lessees for such terms of years as such purchasers or lessees should require provided that notice of every intended sale or lease shall be given to the said trustees of the said settlement and that an application for approval of each such sale or lease shall be made in the matter of Sir Hugo Compton Domvile Poe-Domvile a ward of Court and that the net capital monies received or arising on every sale or lease be paid to the trustees or trustee for the time being of the said settlement and invested and during the life of the ward and the lives and life of his male issue (if any) the income arising from all sales and leases of parts of the Santry estate be paid to the trustees or trustee of the said will of Dame Mary Adelaide Poe to be applied in accordance with the trusts and powers therein declared and contained and that after the death and failure of male issue of the ward the monies and investments arising from sales or leases of portions of the Santry estate the subject of other deeds of enlargement shall be applied in the like manner as hereinbefore provided in respect of the net proceeds of the sale of Santry Court and Demesne.”
I think there can be no doubt, from the whole terms of this order which I have quoted, that the President of the High Court was concerned to ensure that any enlargement effected as a result of the order would not prejudice the rights of any persons entitled after the determination or in defeasance of the base fee created by Lady Poe.
A supplemental order was made in the same matter the following year, on the 22nd June, 1941. It was made on the application of the committee and the curial part reads as follows:”It is ordered by the President of the High Court that the committee be at liberty in the name and on behalf of the ward to execute a deed enlarging the base fee in the Santry estate (excepting the portions specifically dealt with in the said order of the 30th July, 1940) for the purpose and to the extent of enabling leases for terms of years of any length in possession or reversion to be granted of portions of the Santry estate all such leases to be approved by the Registrar of Wards of Court and all monies received by way of fine on the granting of any lease to be paid and applied as by the said order directed in respect of net capital monies.”
Pursuant to these orders, three deeds were executed, two of them on the 10th December, 1941, and the third on the 28th October, 1946. Of those executed in 1941, one was expressed to be supplemental to the other and to have been executed after it. The parties to both these deeds were the ward by his committee and the committee of the first part, Isabel Mary Poe of the second part, George Ambrose Congreve Webb and Cecil Henry fitzherbert (the committee) of the third part and Charles Spottiswoode Weir and Richard Nesham Weir (thereinafter together called “the grantees”) of the fourth part. The first deed of the 10th December, 1941, recited the prior history of the title to and dealings with the Santry estate, and from these recitals it appears that the parties of the third part, George Ambrose Congreve Webb and Cecil Henry FitzHerbert, had become the trustees for the purposes of the Settled Land Acts of the Santry settlement, and that the grantees, the parties of the fourth part, had become the trustees of the will of Lady Poe. There was also a recital of the order of the 30th July, 1940, already quoted, and of the fact that the Corporation of Dublin had called for a conveyance of the property. The indenture then witnessed that in pursuance of the said order and for effectuating the purposes thereinbefore mentioned the ward acting by the committee as such committee and the committee as such committee with the approbation of Isabel Mary Poe and of the trustees of the Santry settlement as such trustees thereby respectively granted and confirmed unto the grantees the hereditaments specified in the schedule.
The schedule comprised the plots of ground with the buildings thereon known as nos. 25, 26, 27 Chancery Street and numbers 1 and 4 Greek Street, in the City of Dublin, and also part of the lands of Santry demesne containing 222 acres and 1 perch together with the mansion house known as Santry Court and other buildings erected thereon, in the County of Dublin. For some unexplained reason, this schedule did not include numbers 2 and 3 Greek Street although the order of the 30th July, 1940, as already seen, specifically dealt with nos. 1 to 4, inclusive, Greek Street.
The habendum in this deed was to hold the hereditaments unto the grantees and their heirs discharged from all estates, rights, interests and powers to take effect after the determination of the base fee created by the recited indenture of the 12th January, 1886, to the intent that such base fee might be enlarged into a fee simple absolute to the use of the grantees and their heirs upon trust to sell and convey the said hereditaments to such person, persons or bodies of persons corporate or unincorporate and at such prices and on and subject to such terms and conditions as had been or might be approved by the President of the High Court, including the conditions as to payment and resettlement of the several purchase monies contained in the said order of the 30th July, 1940. There followed a proviso that if the contemplated sale should not be completed within twelve months the deed should become and be wholly void and the grantees should stand seised of and entitled to the hereditaments for the like estate and interest as the same were then vested for under the will of Lady Poe in the grantees as trustees of the said will. This proviso again illustrates the limited intention of the enlargement. In the event, the sale took place within the twelve months and the proviso did not become operative.
The supplemental deed of the same date, having referred to the first deed, recited that other portions of the Santry estate of which Lady Poe had at her death been seised for an estate in base fee were devised under her will to trustees in trust for sale and that it was desirable that the will trustees should be able to grant leases for terms of years without thereby prejudicing the right of succession of the parties entitled under the Santry settlement on the determination of the said base fee. It then referred to the orders of the 30th July, 1940, and the 22nd June, 1941, and went on to witness that in pursuance of the said orders and for effectuating the said purposes the ward acting by the committee and the committee as such with the approbation of Isabel Mary Poe and of the settlement trustees granted and confirmed unto the will trustees (Charles Spottiswoode Weir and Richard Nesham Weir) all messuages lands and premises situate in the City or County of Dublin being part of the Santry estate except the portions thereof specifically dealt with in the order of the 30th July, 1940. As the latter order specifically dealt with nos. 2 and 3 Greek Street, these premises were not captured by this general description and, as will be seen, were dealt with separately in the third deed of enlargement, that of the 28th October, 1946.
The habendum of this second deed of the 10th December, 1941, was expressed to be to hold the premises unto the will trustees and their heirs to the use of the will trustees for the term of 10,000 years from the date of the indenture to the end and intent that the will trustees should and might grant leases and tenancies of any portions of the same for any term or terms of years consistent with the term thereby vested in them in possession or reversion or from year to year or any shorter period at such rent or rents and subject to such covenants agreements and conditions as should be reasonable and proper, such leases and tenancies to be binding upon all persons interested under the settlement, and from and after the determination of the said term and in the meantime subject thereto and to the trusts thereof to the uses upon the trusts and subject to the powers and provisions which in the events which had happened were or would but for the execution of the disentailing assurance of the 12th January, 1886, be subsisting in respect of the hereditaments under or by virtue of the Santry settlement. These uses and trusts were then set out as being to the use of the ward and the heirs male of his body with remainders expressed in the same terms as those in the Santry settlement after the death and failure of male issue of any daughter of William Compton Domvile so far as then capable of taking effect; that is, the remainders were those capable of operating after the determination of the base fee created by Lady Poe.
This deed contained a proviso which is of importance as showing the intention of preserving the subsisting trusts of the base fee and the rights which might arise on its determination. It was to the effect that during the life of the ward or until his discharge from wardship, whichever should be the shorter period, all leases and tenancies should receive the approval of the Registrar and all monies paid in consideration thereof should be paid to the settlement trustees to be invested by them in the purchase of freeholds of inheritance to be conveyed to the uses on the trusts and subject to the powers and provisions which under the settlement were subsisting with respect to the unsold portions of the Santry estate or as near thereto as circumstances would permit and that the income arising from such investment should during the life of the ward be paid to the will trustees, and, in case the ward should leave an heir male or heirs male of the body and pending the execution and enrolment of a further deed enlarging the base fee into a fee simple absolute, continue to be paid to the will trustees and be applied by them in accordance with the trusts of the said will.
Both of these deeds were duly enrolled but, before passing to the third deed of enlargement, a circumstance must be noted and considered in relation to them, which does not apply to the third deed, and which it is contended invalidates them. This is that, while they were executed by all the other parties, they were not executed by Richard Nesham Weir, one of the will trustees. It appears from subsequent documents that Richard Nesham Weir was serving in the British Navy in 1941 and it was certified on the 7th May, 1945, by the Lords Commissioners of the Admiralty that he was presumed by the Admiralty for official purposes to have died on the 22nd May, 1941. This certificate is recited in an appointment of new trustees, dated the 22nd July, 1946, and it is therein also recited that he was, on the 22nd May, 1941, an officer serving in the Royal Navy and was lost at sea on that date when his ship was sunk in action off the island of Crete. No order has been made presuming his death, but this appointment of new trustees and the subsequent documents have been executed on the basis of his death on the 22nd May, 1941, being an established fact. I think it would be legitimate to approach the question of the validity of the two documents of the 10th December, 1941, on the same basis.
In support of the contention that this circumstance, or, alternatively, the uncertainty as to the true position, invalidated these documents, reference was made to the decision in Peacock v. Eastland (1) of Lord Romilly M.R. In that case a disentailing deed granted the estate to “A.”and “B.” and their heirs to the use of them and their heirs in trust for the grantor. The deed was enrolled but not executed by the grantees and they subsequently executed a deed of disclaimer. It was held that the disentailing deed operated as a grant and not by the Statute of Uses and that it was rendered inoperative by the subsequent disclaimer by the trustees. Lord Romilly, in the course of his judgment, said (at p. 20):”The real question seems to me to be this: whether, by grant at common law, any man can confer upon another, against his will and without his consent any estate whatever in any property? Consequently, in my opinion, all the cases which refer to the releasee to uses being a mere conduit-pipe have no application to this case.” This decision, however, was not wholly inconsistent with the deed being voidable rather than void ab initio, because, as Lord Romilly pointed out, the difficulty in the case of Thompson v. Leech (2), of the absence of evidence of the attitude of the grantees, did not arise in the case before him; and he went on to quote an important passage from Lord Tenterden in Townson v.Tickell (3). Portion of this was to the following effect:”Prima facie, every estate, whether given by will or otherwise, is supposed to be beneficial to the party to whom it is so given. Of that, however, he is the best judge; and if it turn out that the party to whom the gift is made does not consider it beneficial, the law will certainly, by some mode or other, allow him to renounce or refuse the gift.”
There is no doubt that, in form, the deeds of the 10th December, 1941, correspond to that in Peacock v. Eastland (1) rather than to that in Nelson v. Agnew (4), where the deed operated by virtue of the Statute of Uses and it was held that assent or execution by the grantees to uses was unnecessary. It would seem, therefore, that the authority of Peacock v. Eastland (1) would extend to the proposition that, if the grantees or one of them had disclaimed the deeds, they would have been void as to the grantees or as to the one disclaiming. It has been said that, in such a case, the avoidance is ab initio, but the position has been more clearly and accurately stated by Byrne J. in Mallott v.Wilson (5). The following passage from his judgment (at p. 501) shows the more limited meaning that should be given to this statement: “. . . I am satisfied now that the true meaning is that, not in regard to all persons and for all purposes is the case to be treated as though the legal estate had never passed, but that as regards the trustee and the person to whom the grant was made, he is, in respect of his liabilities, his burdens, and his rights, in exactly the same position as though no conveyance had ever been made to him.” The learned judge cited Thompson v. Leach (1) already mentioned, and other cases, in support of his view.
In the present case, therefore, if it is to be considered as uncertain whether Richard Nesham Weir was alive on the 10th December, 1941, the deeds are not less valid than they would have been in the case of a grantee who did not execute or expressly assent, but who, at the same time, had not disclaimed; that is, they would have been good until disclaimer. In the case of a disclaimer by one of two joint grantees, I am inclined to think that this does not invalidate the document as to the other grantee or as to its general effect. If, on the other hand, it is to be presumed that Richard Nesham Weir was, already dead on the 10th December, 1941, I do not see why the document should not still be valid as to the other grantee and in its general effect. The principle here involved seems to me to be the same as in the proposition laid down in Norton on Deeds (2nd ed., at p. 437) in these words:”If the limitation be to two, and one cannot take, the other shall take the whole.” On either view of the matter, there was an appointment of new trustees, already referred to, on the 22nd July, 1946, which is not alleged to have been invalid or ineffective. Finally, it is doubtful whether this point is one that can be allowed to be taken by anyone who was a party to the deeds of the 10th December, 1941.
For these reasons, I am of opinion that the deeds in question are not invalid in the way alleged. Accordingly, attention may now be directed to the third deed of enlargement, that of the 28th October, 1946.
This deed dealt only with the property apparently overlooked in the earlier deeds, namely, nos. 2 and 3 Greek Street, Dublin; and, accordingly, it was supplemental to the first deed of the 10th December, 1941. The parties to it were the ward by his committee and the committee of the first part, Isabel Mary Poe of the second part, the Governor and Company of the Bank of Ireland and the Bank of Ireland Nominees Limited and the committee of the third part and Charles Spottiswoode Weir and Forbes Spottiswoode Weir of the fourth part. It appears from the recitals that the parties of the third part had become the trustees of the settlement of the 24th August, 1854 (the Santry settlement), and the parties of the fourth part had become the trustees of Lady Poe’s will. It also similarly appears that the Corporation of Dublin had acquired the premises and called for a conveyance thereof, and that, accordingly, it was necessary that the deed should be executed and enrolled for the purpose of enlarging the base fee in the premises into a fee simple absolute. The indenture then witnessed that, in pursuance of the order of the 30th July, 1940, and for effectuating such enlargement the ward acting by the committee and the committee as such with the approbation of Isabel Mary Poe and of the trustees of the settlement granted and confirmed unto the trustees of the will the premises. These were to be held unto the trustees of the will and their heirs discharged from all estates, rights, interests and powers to take effect after the determination of the base fee created by the indenture of the 12th January, 1886, to the intent that such base fee might be enlarged into a fee simple absolute, to the use of the trustees of the will and their heirs upon trust to convey and dispose of the same to the Corporation at the price at which the same had been acquired and on and subject to such terms and conditions as had been or might be approved by the President of the High Court including the conditions as to payment and resettlement of the purchase money contained in the said order of the 30th July, 1940. This deed was duly enrolled.
There is no ambiguity in this deed, any more than in the principal indenture of the 10th December, 1941 (as to Santry Court and Demesne and the other property therein), as to the intention of enlargement; nor, apart from the point already dealt with as to the earlier indenture, was any good reason suggested for doubting their validity and effectiveness as enlarging assurances. The second deed of the 10th December, 1941, was also expressly intended to effect an enlargement but, as already seen, it adopted a somewhat different form. The reason for the differences, in particular the creation of the term of 10,000 years, probably lies in the purpose of the document, namely, to enable leases to be made from time to time. This probably also explains why this deed included a resettlement, subject to that term of years, of the property and of the proceeds of such leases. This was obviously a more convenient course than having a resettlement, complying with the orders made in lunacy, executed on the occasion of each separate lease. It will be noted that the limitations of the resettlement are such as to carry out what I have suggested was the intention of those orders, that is, not to prejudice, any more than was necessary for the immediate transactions, the rights of persons entitled after the determination or in defeasance of the base fee.
This deed, although made to enable leasing and for that purpose creating the long term of years, was, in the first instance, a grant to the will trustees and their heirs, that is, a grant in fee simple, and it was made by the person who would have been the actual tenant in tail but for the creation of the base fee. It appears to me, therefore, that it also operated as an enlargement by virtue of s. 16 of the Act of 1834. If authority were needed for this conclusion, apart from the case of Bankes v. Small (1), already cited, it can be found in the decision of Sullivan M.R., in somewhat analogous circumstances, in Nelson v. Agnew (2),referred to above. He there held that a disentailing deed need not pursue any particular form of conveyance; any deed which by its legal operation would have conveyed the fee simple, if the grantor had been seised in fee, will, if executed by a tenant in tail in possession, and if duly enrolled, bar the entail.
I am of opinion, accordingly, that these three deeds were effective to, and did, enlarge the base fee into a fee simple absolute in respect of the portions of the Santry estate dealt with in them respectively. This, however, as may have been already gathered, does not mean that it is my view that the parties entitled in remainder after the base fee have necessarily lost thereby any advantage they previously had or that the beneficiaries under the will of Lady Poe have gained in estate thereby. The resettlements effected, in part by the second enlarging deed of the 10th December, 1941, and in part by the deed of resettlement of the 20th January, 1947 (still to be considered), cannot be disregarded, if those resettlements were validly made. The beneficiaries and the trustees of the will of Lady Poe were parties to those resettlements, as were also the trustees of the Santry settlement. It was, of course, of interest and concern to the latter that the trusts of the settlement should be preserved so far as possible. On the other hand, the beneficiaries and trustees of the will had no equity, right, or duty to require more than that their interests should not be prejudiced or diminished. The sales and leases must be presumed to have been for the benefit of the estate of Lady Poe or, at least, since the trustees were a party to the orders authorising them, of no disadvantage to that estate. That estate had no claim to any greater benefit merely because these sales and leases could not be effected without a preliminary enlargement. As regards the ward, Sir Hugo, the orders would not have been made unless they were considered to be for his benefit. His power of enlargement, which he could exercise if he were discharged from wardship, should not of course be prejudiced by any resettlement; and this power, to override the resettlements thus, was preserved. As will have been noted, this power is preserved by the form and terms of the second deed (as to leasing) of the 10th December, 1941; while it will be seen that it is also preserved by the deed of resettlement of the 20th January, 1947, which now requires to be considered. It should first, however, be pointed out that, once an enlargement was effected as I have held it wasby the three deeds which have been considered, the ward, acting through his committee and under the supervisory jurisdiction of the Court, and the will trustees, became, between them, competent to dispose of the whole interest in fee simple in the property involved and, therefore, competent to resettle it. They became, in effect, the settlors in the (leasing) deed of the 10th December, 1941, so far as it was a resettlement, and also in the deed of resettlement of the 20th January, 1947. The beneficiaries under the will of Lady Poe, so far as their interests might not be represented by the will trustees, were also parties to these documents. In addition, if it were necessary, Miss Poe, as will appear later, was competent to represent any possible interest on the basis of on the terms or effect of the appointment of the property contained in her will.
The uses of this second deed of the 10th December, 1941, have already been set out; and the proviso in it, as to the application of income during the life of the ward and of any male heir of the ward, has been referred to. The effect of these provisions is clearly to restore or recreate the base fee subsisting before the execution of the deed of enlargement.
The deed of resettlement of the 20th January, 1947, dealt with the net proceeds of the sale of Santry Court and Demesne and of the premises in Chancery Street and Greek Street, that is all the property dealt with in the first deed of enlargement of 10th December, 1941, and in the deed of enlargement of 28th October, 1946. Amongst other matters, it was recited that the settlement trustees held investments representing £18,345 15s. 2d., portion of such net proceeds, and £890 2s. 0d., cash, representing the balance of the net proceeds. It was also recited that the parties to the deed, the ward acting by his committee, had agreed to execute it in obedience to the order of the 30th July, 1940, and that the Registrar of Wards of Court had approved of it.
The parties to the deed were the trustees of the will of Lady Poe, the ward by his committee and the committee, Isabel Mary Poe, and the trustees of the Santry settlement; and it was witnessed that the parties agreed and declared as set out in the deed. After provisions giving the trustees power to alter investments and directing the investment of the sum held in cash, the deed continued as follows:
“3. The settlement trustees shall during the life of the ward and so long as any male heir of the body of the ward shall be living pay the income arising from the said investments to the said Charles Spottiswoode Weir and Forbes Spottiswoode Weir or other the trustees or trustee for the time being of the first will of Dame Mary Adelaide Poe to be applied as by the said first will directed.”
This provision clearly limits the period during which the trustees of the will and the estate of Lady Poe are entitled to the income to that which would have been the period of enjoyment if there had been no enlargement, namely, the continuance of the base fee. It, and the following provision dealing with the period after the determination of the base fee, together carry out the intention of the order of the 30th July, 1940. This following provision reads thus:
“4. From and after the death and failure of male issue of the ward the settlement trustees shall stand possessed of and entitled to the investments to be held by them as aforesaid upon trust to convert the same into money and to lay out the proceeds of conversion in the purchase of freeholds of inheritance situate or arising in Éire , England or Wales and shall cause the hereditaments so purchased to be assured to such uses upon such trusts and subject to such powers and provisions as would have been subsisting in relation to the hereditaments the subject of the said sales had the same not been sold or in relation to the proceeds thereof had the same been sold under the settlement and no such disentailing deed and deed of enlargement had been executed.”
As these provisions in effect restored or recreated the base fee, it was clearly necessary to preserve the ward’s power of enlargement in respect thereof, since the Court did not purport to make a final decision in the matter on his behalf either way. Accordingly, the last-quoted provision was followed by this proviso:
“Provided always that nothing herein contained shall affect or prejudice the right of the ward if discharged from wardship or any male heir of the body of the ward by a further deed of enlargement duly enrolled to bar all estates rights interests and powers by the settlement limited to take effect after the determination or in defeasance of the estate in tail male thereby limited to Dame Mary Adelaide Poe.”
The deed concluded with a release by Miss Poe of her power of appointment, given to her by the will of Lady Poe, as to the investments and the income arising therefrom after the death and failure of male issue of the ward. This, of course, does not prevent her dealing with her interest therein so long as, and for as long as, the period of the base fee continues.
I think sufficient has been said to indicate my view that this deed not only carries out the intention of the Court but is also a valid and effective resettlement; and it is unnecessary to pursue this topic further.
The last set of questions are concerned with the effect of the provisions in Lady Poe’s will by which she purported to exercise the powers of appointment reserved in the disentailing deeds of 1886. It has already been noted that she included any property over which she had a general power of appointment in the devise and bequest to the trustees of her will upon trust for conversion. The will then provided that, out of the moneys so arising, and out of her ready money, the trustees were to pay her funeral and testamentary expenses and debts and the legacies given by her will or any codicil and all death duties which under or by virtue of any direction or bequest free of duty (sic) was payable out of her general personal estate and to make provision for the payment of any annuities bequeathed by her. Then, after directions as to the investment of the residue of such monies (thereinafter called “the Trust Fund”), the trustees were directed to pay the income of the Trust Fund to her husband during his life. The will then proceeded:”After the death of my said husband my trustees shall stand possessed of the capital and future income of the Trust Fund in trust for my said son and my said daughter in equal shares but subject as next hereinafter provided.” The provisions which follow deal with the respective shares of the son and the daughter but need not be set out for the moment, beyond saying that they do not exhaust all the possible contingencies and leave in each case at least one contingency in which each share is not expressly disposed of. There arises, therefore, the question whether there is an absolute gift to the son ordaughter, as the case may be, in such contingency, or a resulting trust.
The preliminary question thus arises whether, if there were a resulting trust, it would be to the uses limited by the disentailing deeds in default of appointment or so far as an appointment should not extend. I think it is quite clear, and the contrary was not really contended for, that the provisions of Lady Poe’s will were intended to, and did, withdraw the property from the instruments reserving the powers of appointment, whether or not the powers were fully exercised as regards her own estate. It is sufficient to quote the following passage from Farwell on Powers (3rd ed., at p. 274):”It follows that an appointment by will to the appointor’s executors and administrators, followed by directions which either fail or do not exhaust the fund, makes the appointed fund part of the appointor’s assets. If, therefore, the appointment be to executors as executors and if the appointed fund be treated as blended with the appointor’s own property, that will afford ground for presuming that the testator intended to make the fund his own for all purposes.” The case of Brickenden v. Williams (1) is then cited as an instance of a case in which a testatrix had treated everything over which she had any power of testamentary appointment (and which would have included any savings of her separate estate) as one mass, giving it as one mass to her executors as executors, and constituting it one property, to be dealt with as her will directed. The position seems to me to be exactly the same in the case of Lady Poe’s will.
The question then arises whether she fully exercised the powers, or should be held to have intended to do so, as regards her own beneficiaries. This turns on a consideration of the whole of the relevant provisions in the will. The next provision, after those already just quoted, reads:”Provided nevertheless and I hereby declare that the shares of the trust fund hereinbefore given to my said son and daughter and hereinafter respectively called ‘the son’s share’ and ‘the daughter’s share’ shall not vest absolutely in them respectively but shall be retained by my trustees and held by them upon the following trusts respectively.”The trusts which follow deal separately with the son’s share and the daughter’s share. It is not necessary, for present purposes, to do more than summarise them.
As to the son’s share, the trustees were given a discretion as to paying or applying the income for the personal support or benefit of the son, with power to withhold all or any part and to accumulate, with a like discretion as to the accumulations. They were also given power in any year to make up the income of that year, to the figure of £7,000, out of the capital of the son’s share. It was then provided that, if her son should survive her for more than 21 years, any accumulations should then be applied in the same manner as if the son had died a bachelor. If the son were married at her death or should marry thereafter the trustees were directed to make a settlement of the share. If the son should die in her lifetime leaving issue living at her death the trustees were to hold the share for all such issue as being male attained 21 years or being female attained that age or married under that age. If the son should die in her lifetime leaving no issue living at her death his share was to go and accrue by way of addition to the daughter’s share.
It will be seen, from this summary, that the share was not fully dealt with. In particular, no provision was made for the event of Sir Hugo surviving her but dying without ever having been married. The effect of what I have already decided as to the continued existence of a base fee or of limitations of an equivalent nature is, of course that any gift over or resulting trust could not take effect in respect of the property in question, in the event of Sir Hugo dying without issue or without male issue, as the case might be. There is, however, other property as to which the matter is of importance.
In the case of the daughter’s share, the provisions were similar but not identical. It was first directed that the trustees should pay the income of her share to the daughter during her life or spinsterhood. If the daughter should die a spinster, the trustees were to stand possessed of the capital and future income for such person or persons and in such manner as the daughter might by will or codicil appoint. If she were married at the death of Lady Poe or should marry thereafter, the trustees were to make a settlement of the share. If the daughter should die in the lifetime of Lady Poe leaving issue living at the death of Lady Poe the trustees were to hold the daughter’s share in trust for all such issue as being male should attain 21 years or being female should attain that age or marry under that age. If the daughter should die in her lifetime leaving no issue living at her death, the daughter’s share was to go and accrue as an addition to the son’s share.
As in the case of the son’s share, it will be seen that this share was not fully dealt with. In particular, no provision was made for the event of Miss Poe dying unmarried and without having exercised her power of appointment. Again, so far as the property is held on a base fee or equivalent limitations, the interest of Miss Poe can only continue so long as there is issue or male issue, as the case may be, of Sir Hugo.
If the matter were one of first impression, it might seem more in accord with the intentions of the testatrix that effect should be given to these detailed provisions only so far as they extend, and that the donees were not intended to benefit except to the extent and in the manner provided. If that were so, there would be a resulting trust, in favour of the estate of Lady Poe, in the event of any of the contingencies unprovided for occurring. It was contended, however, and not seriously challenged, that the will in question is one to which what is called “the rule in Lassencev. Tierney ” (1) applies. That case, which was a decision of Lord Cottenham, laid down several propositions as to the construction of wills containing provisions on similar lines to those under consideration here; but the portion that is usually quoted as “the rule” is that given first in the headnote. It is to the effect that, if a testator leaves a legacy absolutely as regards his estate, but restricts the mode of the legatee’s enjoyment of it, to secure certain objects for the benefit of the legatee, upon failure of such objects, the absolute gift prevails. The converse of this is stated in the proposition that, if there be no such absolute gift as between the legatee and the estate, and particular modes of enjoyment are prescribed, which fail, the legacy forms part of the testator’s estate. Lord Cottenham added the necessary qualification that, in the case of a will containing such a disposition, the intention of the testator is to be collected from the whole will, and not from words which, standing alone, would constitute an absolute gift. It may also be noted that, in the particular case, the Lord Chancellor held that there was not an absolute gift.
The fundamental question, therefore, is whether, on the construction of the whole of the relevant provisions, an absolute gift was intended. It may be that, in considering this question, some of the reported decisions could be suggested to have paid insufficient attention to the qualification that the inclusion of words which, standing alone, would constitute an absolute gift, is not sufficient to attract the rule; but the cases have gone a considerable distance towards a rather liberal interpretation in this respect. Thus, it has been held that a provision, such as occurs in the present case, that the gift is not to vest absolutely in the donee, does not necessarily exclude the application of the rule: Re Gatti (1); In re Marshall (2). In the latter case, Eve J. distinguished the decision of Astbury J. in In re Payne (3), where there was a similar expression, on the ground of the language of the wills being a little different. In the case before him there was a gift over, which proved to be invalid, while in the case before Astbury J. there was no gift over. Again, it has been held that it is immaterial to the application of the rule whether the restrictions on the mode of enjoyment are for the benefit of the donee or not: Fyfe v. Irwin (4). Other cases referred to, and holding that there was an absolute gift, were Kellett v.Kellett (5) and Handcock v. Watson (6). Apart from Lassencev. Tierney (7) itself and In re Payne (3), already cited, the contrary view was taken, again by Lord Cottenham, in Gompertz v. Gompertz (8).
I confess to some doubt in the present case. The direction to the trustees to stand possessed of the capital and future income of the trust fund for the son and daughter in equal shares would, of course, if it stopped there and stood alone, be an absolute gift; but this direction is immediately qualified by the addition of the words, “but subject as next hereinafter provided.” This qualification renders the direction at least ambiguous as to the nature of the gift. It is, however, of some significance that the subsequent provisions, while quite elaborate as has been seen, did not exhaust all the foreseeable contingencies but left some unprovided for by way of gift over or otherwise. This is a circumstance that was adverted to by Lord Cottenham in Lassence v. Tierney (7) in the view expressed by him that a disposition of the subject-matter of the gift, in every possible event that could arise, would be totally inconsistent with an intention to make an absolute gift (p. 567). The absence of such complete provision might, then, be some indication that all that was intended was to limit the enjoyment of a gift, otherwise absolute, in certain ways in the specified events, and that, in other events, the absolute gift would take effect. Again, in the case of Sir Hugo, although he was not made a ward of Court until three years after the date of Lady Poe’s will, she may have felt there was some special need to restrict the mode of enjoyment in his case. For these reasons, and in view of the trend of the authorities and the absence of serious challenge, I think I should decide that the present is a case in which the will severed the property from the estate of Lady Poe so as to exclude an intestacy and that, in any of the events unprovided for, the property involved goes to the particular donee or his or her estate.
It should be added that the interests concerned with the decision of this question appear to be sufficiently represented in the present proceedings. Sir William Hutcheson Poe survived Lady Poe by a few years but his estate has been fully administered and Miss Poe, who is represented here, is his universal devisee and legatee; while Sir Hugo, the only son of Sir William and Lady Poe, is also, of course, represented.
This view of the effect of Lady Poe’s will may prove to be somewhat academic so far as the Mayo and Santry estates are concerned. This follows from my decision that a base fee still subsists so far as the Mayo estate is concerned and that portions of the Santry estate have been resettled to uses equivalent to preserving the base fee in respect of them. The remainder of the Santry estate the capital monies representing prior sales of portions of the estateare also, of course, held on a base fee. Accordingly, if Sir Hugo dies without having been married, and without any enlargement of these base fees having been made by him or on his behalf, the uses operating after the determination of the base fees must take effect; and his estate will take no interest, under Lady Poe’s will, in either the Mayo or the Santry estate. Similarly, in the case of Miss Poe, the interest of her estate would be dependent on whether the base fees were still subsisting at the date of her death; and that interest would, in any case only be co-extensive with and not greater than a base fee in a moiety of the Mayo and Santry estates.
The questions raised in this matter can be answered in the light of and in accordance with the foregoing observations.
In the Matter of the Estate of J. F. Bomford
Supreme Court of Judicature.
Court of Appeal.
9 May 1904
[1904] 38 I.L.T.R 139
Lord Ashbourne C., FitzGibbon Walker, Holmes L.JJ.
Lord Ashbourne, C.
There is no difficulty as to the construction of the grant. The grantor was to pay the quit rent, and the grantee to pay all other charges except the quit rent. When the matter came to be investigated it was found that the grantee had been paying the quit rent and the question as to his liability to pay was raised. There was evidence that for over a century the quit rent had been paid by the grantees. It was contended that all this was done in mistake of their rights, and that for the future the grantor must pay the quit rent. Major Hewson, on the other hand, contends that the non-payment by his predecessors must be traceable to a legal origin, and a lost grant must be presumed. In 1839 a correspondence took place with regard to the liability to pay, and it was suggested that a case should be sent to counsel. We have not got the counsel’s opinion, but, if given, it must have been against the Bomfords, for they continued to pay as before. Mr. Jellett suggests that the Bomfords were thrown off their guard by reason of the subgrant to Tyrrell, and the arrangement under which the Bomfords paid to the grantors only a balance of £3 5s. 6d. But in 1839 the very point was made that the payments were made in error, and it was not persisted in. We must hold that all that happened had a legal origin in a grant which has been lost.
FitzGibbon, L.J.
As I understand the facts, one single quit rent out of three townlands was created in 1703. In 1708 one of these townlands was granted to Bomford, Heaton still having to pay the entire quit rent. In 1710 a similar transaction took place with regard to the second townland. Then, in 1780, we find that the entire of the quit rent that was payable out of these two townlands of Clonfad and Ratlin was paid in full by a Bomford. The only portion of the quit rent of £21 9s. 11¾d. which was not so paid was payable out of Ballyoughter, and was paid by the tenant of Ballyoughter. In 1791 a Bomford paid that also. Therefore we have it that no one except a Bomford paid any quit rent out of Clonfad since 1780. It is impossible to say that in this case the presumption of a lost grant does not rest on evidence. The grant must have been one before 1780. The payment was not challenged till 1839, when a claim was made against the grantors for £180. It was answered by the allegation that the Bomfords knew all about the estate, and would have to explain how the quit rent had been paid by them for so long a time, and the claim was not persisted in.
Walker, L.J.
I concur. Mr. Jellett says that where there are clear words in a deed creating rights, the deed cannot be varied by a presumption of a lost grant. But this must arise in every case of a lost deed. It is said that in 1809 the Bomford Estate was put in settlement. But the matter originated before 1809, and again the issue was raised specifically in 1839, and the claim abandoned.
Holmes, L.J.
We must assume that Heaton and Bomford knew the contents of these deeds, and further, that Heaton was liable to pay the quit rent. Something must have occurred to cause him to cease paying it. I do not know what occurred; but I do know that since 1780 the Bomfords have paid the entire of the quit rent payable out of Clonfad. The only inference is that it had been agreed that the Bomfords should undertake to pay the quit rent; and that this was acted on for at least 120 years. It would be a strong thing to say now that these payments were wrong, and had not a legal origin.
Representation
Theobald Billing v Richard Thomas Welch
Court of Queen’s Bench.
4 May 1871
[1872] 6 I.L.T.R 64
Whiteside C. J., O’Brien J.
A declaration of title by the Landed Estates’ Court has the same validity and conclusive effect as a conveyance by that Court of the fee-simple to a purchaser.
Words supplied in construing a declaration of title by the Landed Estates’ Court, which without them would be unintelligible, having regard to the object and intention of the declaration as apparent from the recitals and context of it.
Action for an additional rent, which the grantee in a fee-farm grant under the Renewable Leasehold Conversion Act, covenanted to pay on alienation. Defence a declaration of the grantee’s title by the Landed Estates’ Court. Demurrer.
The declaration of title recited, that on the 3rd of February, 1862, W. C. Rochfort presented a petition, with his title annexed, to an estate in fee-simple to the lands of Emorelly, Ballylenary, and Ballyna *64 gillory, now called Buckrony, and Sallymount, in the barony of Arklow, and county of Wicklow, and to a fee-farm rent of £62 15s. 4d., payable out of the lands of Rahard, in the same barony, created by an indenture of the 11th October, 1859, subject to two fee-farm rents of £25 11s. 7d. and £9 14s. 11d., created by two indentures, dated respectively the 30th April, 1852, and the 22nd October, 1851, and to the covenants, conditions, clauses, and exceptions in the said indenture contained, and to a fee-farm rent of £224 2s 6d., payable out of the lands of Tullanan, Cloghanbeddy, and Aughanderry, in the barony of Abbeyshrule, and county of Longford, created by an indenture of the 15th October, 1859, subject to a fee-farm rent of £47 5s 8d., created by an indenture of the 24th day of July, 1858, and that by the same petition, the petitioner prayed that his title should be investigated and judicial declaration made by the Court, that he had a good and sufficient title to the said lands and rents, subject to the rents, &c., specified in the schedules to the petition; and having recited the publication of advertisements the declaration proceeded:—“Now I, Mountifort Longfield, one of the Judges, &c., under the authority of the 21st & 22nd Vic., ch. 72, do declare that the said W. C. Rochfort has a good and sufficient title to an estate in fee-simple, in the lands and rents following (enumerating the lands aforesaid, in the county Wicklow), and to a fee-farm rent of £62 15s. 4d. out of the lands of Rahard, in the said county, created by an indenture of the 11th October, 1859, and to all other rents by said indenture created or reserved, and all the estate and interest of the grantor under the said indenture; and to a fee-farm rent of £224 2s. 6d. out of the aforesaid lands, in the county of Longford, created by indenture of the 15th October, 1859, and to all other rents by said indenture created or reserved, and all the estate of the grantor under the said indenture: To Hold the same to the said W. C. Rochfort, his heirs, for ever, &c., subject to the leases specified in the 1st schedule, and to the easements specified in the 2nd schedule hereto and to the mortgage specified in the 3rd schedule hereto, and subject, as to the said premises comprised in the said indenture of the 11th October, 1859, to two fee-farm rents of £25 11s. 7d. and £9 14s. 11d., created by two indentures, dated respectively the 30th April, 1852, and the 22nd October, 1851, and subject as to the premises comprised in the said indenture of the 11th October, 1859, to a fee-farm rent of £47 5s. 8d, created by indenture of the 24th July, 1858, and to the covenants, conditions, clauses, and exceptions in said indenture contained, so far as they relate to the lands herein specified. ”
The pleadings and the deeds referred to in them are fully stated in the judgment of the Court.
J. Andrews (with him C. Andrews. Q. C., and H Law, Q.C.), in support of the demurrer. The chief point raised by the pleadings is the effect of a declaration of title by the Landed Estates’ Court. It cannot be denied that a conveyance by that Court is binding upon all parties (Errington and Rorke, 7 L.C., 617), In re Tottenham’s Estate, I.R. 2 Eq 629), but there is a marked difference between the powers of the Landed Estates’ Court on sales, and its powers on a declaration of title. Declarations of title are made under the 51st section of the Act. The 54th section shows what is meant by leases, incumbrances, and covenants, in the 51st section The 52nd section regulates the practice of the Court. Section 60 is also relevant to this question, and the 34th and 35th rules relate to declarations of title. Those sections show that the Landed Estates’ Court has not powers so extensive in making declarations of title, as upon conveyances on sale, and that it has not any power to alter the rights of reversioners upon such declarations. The Landed Estates’ Court did not profess to apportion or deal at all with these fee-farm rents In re Cassan’s Estate (9 Ir. Jur. N. S. 72). In re Conyers (11 Ir. Ch. R. 334). But assuming a declaration of title to be conclusive upon all parties, the Landed Estates’ Court deeds must be construed in the same way as other documents. Letters, and even words may be supplied in deeds where the sense requires them (Coles v. Hulme, 8 B & C. 56; Lloyd v. Lord Saye and Sele, 10 Mod. 46, s. 1; Brown, P. C. 379; Waugh v. Bassell, 1 Marsh, 214, c. 5, Taunt. 707). Having regard to the recitals contained therein it is clear that “indenture” at the end of the habendum should be read “indentures.”“Subject also” might also be inserted after “indenture of the 24th July, 1858” By so doing the whole deed would be rendered consistent and the rights of the reversioners would be preserved. The whole agreement should, if possible, be supported, “ nam verba debent intelligi cum effectu, ut res magis valeat quam pereat ” (Hall v. Betty, 4 M. & Gr. 410). There is no recital in the declaration of title of any intention to apportion the rent. The deed is to be construed with reference to its object and the whole of its terms (Lampon v. Coke, 5 B & A. 506). [O’Brien, J.—To make the deed intelligible it would be necessary to alter the whole of the operative part; it is in its present state quite unintelligible ] The deed must be construed as a whole, and effect given to all its parts (Eastern Counties Railway v. Marriage, 9 H. L. 32, 44, 62, 64). The recitals clearly maintained the rights of the reversioner, and the covenants contained in the fee-farm conversion deed of 1852 are in effect preserved by the declaration of title Sections 51 and 61 of the Landed Estates’ Court Act show, that on declarations of title the Landed Estates’ Court is to refer to all existing incumbrances, the effect of which is, that all covenants must be regarded as incorporated in the declaration of title; verba illata in esse videntur. Otherwise even the fee-farm rent would be extinguished if not mentioned (De Vesci v. O’Kelly, Ir Rep 2 C. L. 267; S. C. Ir. Rep. 4 C. L. 269; Creagh v. Creagh, 13 Ir. Ch. R. 24, 504). By the Renewable Leasehold Conversion Act, 12 & 13 Vic., c. 105, all covenants, rights, &c, are indefeasibly reserved to the grantor, secs. 7, 9, and 13. The effect of section 7 is stated in Gore v. O’Grady (Ir. R. 1 Eq. 1) A covenant against alienation is a covenant which runs with the land (Williams v. Earle, L. R. 3, Q. B. 739; Greenslade v. Torpscott, 4 Jur. 566.) These sections in the Renewable Leasehold Conversion Act cannot be imphedly repealed by the Landed Estates’ Court Act, nor affected by anything done under it. The declaration must be construed by reference to the order, petition, and other proceedings upon which it was grounded, and those plainly show an intention to preserve the lights of the plaintiff (Marley v. M’Dermott, 8 A & E 138; De Vesci v. O’Kelly; Jenner v. Jenner, L. R. 1 Eq. 361). The Landed Estates’ Court had not jurisdiction to make a declaration of title which would interfere with the plaintiff’s right, and if such a declaration were made it would be ultra vires, and of no force. Counsel also referred to sections 51, 52, 54, 60, and 72 of the Landed Estates Act, and rules 11, 34. 35.
E. Gibson, and O’Hagan, Q.C., contra. Even if there had not been any declaration of title the estate created by the fee-farm conversion was *65 an estate in fee-simple, with all the incidents of such an estate, one of which is an unfettered right of alienation. Covenants against alienation are repugnant to such an estate, and are void. It may be said that this is not a condition against alienation, but merely an agreement by which an additional rent was imposed. But there is no difference between a covenant and a condition prohibiting alienation. Both are equally repugnant to an estate in fee (Sheph Touch, by Preston’s c. 6, p. 139). It may also be said that this is not an absolute, but a qualified restriction upon alienation. A condition prohibiting alienation to an individual is good, a condition prohibiting alienation to any but a very small class is bad (Attwater v. Attwater, 18 Beav 330; Muschamps v. Bluett, Sir J. Bridgeman’s Rep., 132; Doe v. Pearson, 6 East. 173). The estate to which the condition was annexed was an estate tail, which distinguishes that case, and in Mahony v. Tynte 1 Ir. Ch. R., 577, the covenant was qualified It is clear from the Renewable Leasehold Conversion Act that the converted estate is to all intents and purposes a fee-simple, and that the grantor has nothing but a rent-charge. This appears from sections 1 and 7 of the Renewable Leasehold Conversion Act. The reason for the rule of law which permits such conditions in leases, where the landlord remains entitled to the reversion, wholly fails in cases of fee-farm grants, where he has nothing but a rentcharge. In re Quinn, 8 Ir. Ch. 578; Lunham’s Estate, Ir. Rep. 5 Eq. 170. By the Landlord and Tenant Act, 1860, 23 & 24 Vic., c. 154, sec. 10, the assignment was utterly null and void, having been made without the grantor’s consent in writing (Clifford v. Reilly, Ir. R. 4 C. L 218: Butler v. Smith, 16 Ir. C. L. R., 213). The defendant therefore is not legally the assignee, and cannot be sued in that capacity (Chute v. Busteed, 4 Ir. C. L. R., 115, 10 Ir. Jur. N. S. 363. The declaration of title affords a complete answer to the action. This involves two questions—first, whether the Landed Estates’ Court had jurisdiction to sweep away this rent? second, what is the construction of the declaration of title? As to the powers of the Landed Estates’ Court, it is impossible to distinguish this case from Errington v. Rorke, Tottenham’s estate, De Vesci v. O’Reilly, and the other decisions upon conveyances on sales; secs. 51, 61, and 85. In Richfort and Ennis there was a doubtful term that had to be explained. As to the construction of the instrument the 11th general order of the Landed Estates’ Court shows the care that is taken in ascertaining the rights of parties. The declaration of title recites that Rochfort was entitled in fee-simple to the lands; the habendum is quite consistent with the recitals, and as the deed stands there is no ambiguity. The Court, under these circumstances, could not add to, nor alter the deed. If “indenture” be read “indentures” it could not be referred to these lands. Lastly, the covenant extended to total assignment, the defendant is only assignee of a part, and so was not liable for the penal rent (Church v. Brown, 15 Ves. 265).
Andrews, . Q.C., in reply. This clause is not a condition, making the grant void upon alienation, but a covenant that the grantee, or his assigns, should pay an additional ascertained rent in the event of his assigning the whole, or any part There is a great distinction between a covenant and a condition. And even in the cases of estates in fee-simple such a covenant is valid. Sec. 10 of the Renewable Leasehold Conversion Act, 12th & 13th Vic., c. 105, shows that these converted estates are not in all respects similar to estates in pure fee-simple (Wilson v. Carriekfergus and Larne Railway Company, Res. Ca., 26; Mahony v. Tynte, 1 Ir. Ch. R., 577; Doe v. Pearson, 6 East). The present case is distinguishable from the authorities cited on the other side, in all of which the prohibition was absolute. In Paull v. Morse, 8 B. & C. 488, the distinction is clearly shown between conditions and covenants. As to the construction of the declaration of title an 1 its effect, it appears from the petition and order that nothing was before the Court but the grantee’s title; it is the grantee’s estate, therefore, and not the grantor’s, which is bound, and it is plain that the Landed Estates’ Court has not any jurisdiction to do anything but declare the petitioner’s title, leaving the grantor’s rights untouched. There is a great difference between the powers of the Court in conveyances on sale and declarations of title. Leases may be sold, but are excluded from the 51st section. The power of apportioning rents or otherwise affecting the grantor’s title, given in cases of sale, are not given to the Court in cases of declaration of title, secs. 34, 51, 52, 53, 54, 60, and 85. The declaration preserves and effectuates all the covenants, to which either grantor or grantee is entitled to. The word “indenture” in the recital can only be read in the plural, and referred to different grants than in the declaration, describes all the lands, the rents to which they are subject, and the deeds by which those rents were created. “Herein specified” in the habendum must be read with the recital as referring to the several lands before specified, “ redden to singula singulis, ” and referring each rent to the hereditaments subject to it, one indenture will be referred to one part of the lands, the other indenture to the other part. The principle of construction so as to preserve existing rights, and the necessity in this case of preserving the powers for the recovery of any rent as mentioned in the declaration of title require that the covenant in the deed of 30th April, 1852, should be considered as reserved and incorporated on the principle of verba illata (Rochfort v. Ennis, 13 Ir. C. L. R. 357). The Court has power to alter the words of a deed where the sense requires it (Thelusson v. Woodford, 4 Ves. 311, 329; O’Donnell v. Ryan, 4 I. C. L. R., 44)
June 7.—O’Brien, J., now delivered the judgment of the Court—This case was argued last term, before the Lord Chief Justice and myself. The action was brought on a fee-farm grant, dated 30th April, 1852, and executed under the Renewable Leasehold Conversion Act, whereby the Rev Mr Hepenstal granted to Mr Rochfort and his heirs certain lands of Ballynagillogue and Rahard, at the yearly fee farm rent of £25 11s. 7d., which, with receiver’s fees, amounted to £26 3s. 6d. The grant contained covenants by Mr Rochfort, for himself, his heirs, and assigns, that he or they should pay Mr. Hepenstal, his heirs, and assigns, said rent, and also a covenant that Mr. Rochfort, his heirs, or assigns, should not at any time alien, sell, or assign over, his or their interest in said granted premises to any person whatever, other than to his or their child or children, without the licence or consent of Mr. Hepenstal, his heirs, or assigns, first had and obtained in writing, under’ his or their hands or seals, and that in case Mr. Rochfort, his heirs, or assigns, should alien, sell, or assign over his or their estate or interest in said premises other than as aforesaid, that then and immediately after, such alienation sale, or assignment, Mr Rochfort, his heirs, and assigns, should yearly, every year thereafter, pay Mr. Hepenstal, his heirs, and assigns, the full sum of 11d per acre for every acre of said premises, or for so many acres of same as should be alienated, assigned over (over and above said yearly rent of £26 3s. 6d.), same to be paid at the times appointed for the payment thereof; and by said indenture a power was given to Mr. Rochfort, his heirs, and assigns, at all times there *66 after, to let or demise any part of said premises for years or lives, on such terms as they should desire. The count of the summons and plaint then states that plaintiff became entitled to said fee-farm rent, and additional rent, and to the benefit of said covenants, and that while he was so entitled, Mr. Rochfort, by deed, dated 2nd October, 1868, aliened and sold all his estate and interest in all said premises to the defendant, who was not his child, within such covenant as aforesaid; that such alienation and sale was not a letting, or demising, of any part of said premises for years or lives within the meaning of said power; and that by virtue of said assignment, defendant entered into said lands and premises; and that thereupon plaintiff, under said covenant and said fee farm grant, became entitled upon and from the 1st of November, 1868, and thenceforth, to receive from defendant, not only said yearly rent of £26 3s. 6d., but also said additional rent of 11d. per acre, amounting to the yearly sum of £14 6s. 11d.; and that on the 1st November, 1869, the sum of £13 1s. 9d, for one half year of said original rent, and the sum of £14 6s. 11d, for one year of said additional rent, became due by defendant to plaintiff, but were not paid, said two sums amounting together to £27 8s 8d. The second count varies from the first in some respects, to which, for the purposes of the case before us, it is not necessary to refer. To that summons and plaint, the defendant has filed a defence, admitting plaintiff’s right to that £13 1s. 9d. (one half-year of said original rent), and bringing that sum into Court. With respect to plaintiff’s demands for said additional rent of £14 6s. 11d., the defence refers to the original lease, dated 12th January, 1711, which was converted into said fee-farm grant, and also refers to the last renewal thereof, dated 28th October, 1848, which was executed before said fee-farm grant, and avers that the terms granted by said renewal were subsisting at the time of said grant. The defence then states that after the execution of said grant, Mr. Rochfort, by another fee-farm grant, dated 11th October, 1859, granted about seventy-four acres, part of said lands, to Robert Hudson and his heirs, subject to the yearly fee-farm rent of £62 15s. 4d The defence then states that afterwards, under the provisions of the Landed Estates’ Court Act (1858), that Court gave Mr. Rochfort a declaration of title, under their seal, dated 25th April, 1865, declaring that he had a good and sufficient title in fee simple to said lands of Ballynagillogue, which were included in said fee-farm grant of 1852, but not in that of 1859, and also a good and sufficient title to said fee-farm rent of £62 15s. 4d., subject as to said premises comprised in said grant of 1859, only to the payment of said fee-farm rent of £25 11s. 7d. The defence then states the due registry of said declaration, and the performance to all conditions necessary to make said declaration of title conclusive and indefeasible against plaintiff and all other persons, and avers that defendant was not liable to pay said additional rent of 11d. per acre. Plaintiff has demurred to this defence on various grounds, and the questions for our consideration are whether the said declaration of title, relied on in said defence, of itself defeats plaintiff’s claim for said additional rent, supposing same to be otherwise well founded; and if it would not have that effect, then whether, upon all the other documents in the case, the plaintiff is entitled to recover that additional rent
The construction and effect of that declaration of title were much discussed during the argument—whether it purported to exempt the said lands of Ballynagillogue, which were subsequently conveyed by Mr. Rochfort, to defendant and his heirs, by said deed of October, 1868, from the payment of the said additional rent, and whether, if that were the construction of the declaration of title, the Landed Estates’ Court had power to do so. In considering what is the proper construction of the declaration of title, we are at liberty, upon the argument of this demurrer, to refer to the several deeds mentioned in the pleadings, and it will be requisite to do so more in detail than they are stated in the pleadings. The fee-farm grant of 1852, by Mr. Hepenstal to Rochfort, on which this action is brought, includes said lands of Rahard, and also certain portions of the lands of Ballynagillogue, and it appears, by the recitals in the fee-farm grant of 1859, that Mr. Rochfort was then also entitled to other portions of said lands of Ballynagillogue, under another fee-farm grant of 22nd October, 1851, whereby Mrs Grace Keane granted said other portion to Mr. Rochfort and his heirs, subject to the yearly fee-farm rent of £91 4s. 11d. The fee-farm grant of 11th October, 1859, mentioned in the defence to have been executed by Mr. Rochfort to Mr. Hudson at said fee farm rent of £62 15s. 4d., included, as well, the lands of Rahard, which were comprised in the fee-farm grant of April, 1852, as also said portions of Ballynagillogue, which were comprised in the fee-farm grant of Oct., 1851, and therefore was subject as to part of said lands of Rahard, to said fee-farm rent of £25 11s. 7d., and as to said last mentioned lands of Ballynagillogue, to said fee-farm rent of £9 14s. 11d. The difficulty which we felt during the argument in putting a construction upon the declaration of title arose in a great degree from this sub grant in fee-farm, from Rochfort to Hudson, including as well portions of the land in each of said grants to Rochfort, of October, 1851, and April, 1852, and also from the fact of the declaration of title including other lands of Emorelly (which were held by Rochfort in fee simple), and also a fee-farm rent of £224 2s 6d. issuing out of certain lands in the county of Longford, and created by another deed of 15th October, 1859, and which Longford lands had been granted to Rochfort and his heirs, by another fee-farm grant executed to him by the Hon King Harman. If then, in construing this declaration of title, we consider its provisions as applied to the cases before us, the result will be as follows:—The Court declares that Rochfort has a good and sufficient title to an estate in fee-simple in the lands of Ballynagillogue (meaning thereby said parts of said lands comprised in said grant of 30th April, 1852), and to a fee-farm rent of £62 15s. 11d., payable out of said lands of Rahard, created by an indenture of the 11th October, 1859. This is inaccurate, because that fee-farm rent was by such indenture payable under said deed, not only out of Rahard, but also out of said portion of Ballynagillogue, comprised in said deed of 11th October, 1859; but it is evidently only a misrecital, and one that may be rectified by reference to that deed. It then declares Rochfort’s title to said fee-farm rent of £224 2s. 6d., payable out of said Longford lands, and created by said indenture of the 15th October, 1859. The declaration then states that the same several premises are to be held by Rochfort, his heirs, and assigns, for ever, subject to the leases, tenancies, easements, and mortgages, specified in the three several schedules thereto, and then states that the premises comprised in said indenture of the 11th October, 1859, shall be subject to said two fee-farm rents of £25 11s. 7d. and £9 14s. 11d., created by said indenture of 30th April, 1852, and 22nd October, 1861. This is also inaccurate, because that fee-farm rent of £25 11s. 7d. is chargeable, not only on said lands of Rahard, comprised in said deed of April, 1852, but also on said parts of Ballynagillogue, which are comprised in that deed. The declaration then states as to the Longford lands comprised in said deed of 15th October, 1859, that they shall be subject to said fee-farm rent of £47 5s. 8d, created by said indenture of 24th July, 1858; and it then concludes with these words, “and to the covenants, conditions, clauses, and exceptions, in said indenture contained, so far as they relate to the lands herein specified.” There has been also much discussion as to the effect of these concluding words. It is contended by defendant’s counsel that they apply only to the last antecedent—namely, to the Longford lands, which were included in said deeds of 24th July, 1858, and 15th of October, 1859, and that by the effect of the previous terms of the declaration, the lands in question are declared to be subject only to said fee-farm rent of £25 11s. 7d. and receiver’s fees, and are exempted from said additional rent. On the other hand, plaintiff’s counsel contend that that concluding passage should be read as if the words “several indentures” were used in it, instead of the word “indenture,” and that then it would refer to all the lands and deeds thereinbefore mentioned. *67 If this be done, then I think the entire habendum should be read, as if that part which declares the several fee farm rents, to which said several lands were respectively subject, was in a parenthesis, and as if the first part of the habendum, which declared all the lands to be subject to the leases, &c., in the schedules mentioned, governed and should be taken in connexion with that concluding passage, which declares the lands dealt with by it to be subject to the conditions, covenants, &c., therein referred to It appears to me that the words, “the lands herein specified” used in that concluding passage, as denoting the lands intended to be dealt with, show that that passage referred to all the lands specified in the declaration, and not merely to the last antecedent – namely, to those comprised in the deed of July, 1858, which is immediately before mentioned. It would, I think be difficult to contend that this document was to be construed as contended for by defendant’s counsel —all the deeds in question are referred to in it, and the declaration is to be construed as if all the clauses and covenants of those deeds were recited in it. There is nothing in the declaration which would show any intention that the lands of which the title is thereby declared, should be exempted or discharged from any of the liabilities to which they were subjected by said several deeds. If the construction of defendant’s counsel were adopted, the result would be that the lands in said fee farm grant of April, 1852, were exempted from the other provisions contained in it, reserving the mines to the grantor and his heirs, and giving them power to enter and dig for, and carry away, the minerals. To warrant such a construction, the words of the declaration should be clear and unambiguous. There is a difficulty in the grammatical construction of the words, which may, I think, be removed, by the insertion of the words “several indentures” instead of the word indenture, and applying to the construction of this declaration the principle laid down by Mr. Justice Burton in Warburton v. Ivie as to the construction of statutes. I think we may be warranted in departing from the strict grammatical construction, and giving it that construction which I have suggested. With respect to the effect of the declaration of title, if its true construction were that contended for by defendant’s counsel, we do not dissent from, but, on the contrary, concur in the proposition laid down by them, namely—that the declaration of title in fee simple, given by the Landed Estates’ Court under the 51st and subsequent sections of their Act, has the same validity and conclusive effect as a conveyance in fee simple to a purchaser would have, and that if the declaration should be construed as defendant’s counsel contend we would not be at liberty to question the power of the Court, to do what they purported or expressed to do by that declaration. It is unnecessary to cite authorities for these propositions so repeatedly established and acted on, but the case of De Vesci and O’Kelly, Ir. Rep 2 C. L. 267, affirmed by the Exchequer Chamber (I. R 4 C. L. 269), shows that without questioning the power of that Court we are at liberty to construe the conveyance by altering some of its terms, in accordance with the documents recited and incorporated in it.
Defendant’s counsel, however, rely upon two other grounds of a very different character They contend— first, that the covenant as to alienation contained in the fee-farm grant of April, 1852, is void, as being repugnant to the estate granted, and that, therefore, the plaintiff cannot sue on it for the additional rent, which was thereby expressed to be made payable, and we are of opinion that this objection is well founded. The general principle is laid down in Shepherd’s Touchstone, pp. 129 130.
As to exceptions in favour of children Attwater and Attwater, 18 Beav., p. 337, might also be cited.
In re Quin, 8 Ir. Ch. C. 568, L. C. Napier 581, disposes of the distinction between a covenant and a condition. The principle clearly laid down by Lord C. Napier is in accordance with the previous authorities, and we adopt it. It is manifest that a provision not to alien to a particular person, or to a particular class of persons, which would, according to the authorities, be good, is very different from a clause against alienation to any one except the child or children of the grantee.
Let the plaintiff’s demurrer to defendant’s second count be overruled, and let defendant have judgment thereon.
Estate of Robert Lunham, Owner
ex-parte James Costello, one of the Public Officers of the National Bank, Petitioner.
Landed Estates Court.
23 February 1871
[1871] 5 I.L.T.R 46
Flanagan J.
Feb. 11, 23, 1871
A fee-farm grant contained a clause providing that it might be lawful for the grantee, his heirs, &c., to assign, sublet, &c., the demised premises, provided that they should not be divided into more than four lots, without the consent in writing of the grantor.
Held, that this restriction was void and inoperative.This was a motion on behalf of the petitioner, that the objection of Edward Day Stokes to the consolidated final notice to tenants and others might be overruled.
The lands in this matter, which were the lands of Lismore and Lisanthanavalla, in the county of Kerry, were held by the owner under a fee-farm grant of the 22nd February, 1858, made to him by the objectant, and reserving the yearly rent of £327 13s. 10d. during the continuance of the life of the Rev. Barry Denny, mentioned therein, and after his decease, the yearly rent of £400. In this grant was the following clause:—“Provided always, and it is hereby covenanted and agreed upon by and between the said Edward Day Stokes and Robert Lunham, for themselves, and each of them, their and each of their heirs and assigns, that it shall and may be lawful to and for the said Robert Lunham, his heirs and assigns, at any time during this demise, to assign, sublet, or otherwise part with the possession of said demised premises, provided that said demised premises shall not be divided into more than four divisions or lots, unless with the consent in writing of the said Edward Day Stokes, his heirs and assigns, being first had and obtained therefor, it being the true intent and meaning of these presents, and of the parties hereto, that said lands shall not at any time during this demise be held or occupied in more than four lots or divisions without such consent as aforesaid.”
The objection stated the above clause, and that the owner had, as appeared by the notice, sublet portions of the said lands to five different tenants, and that it appeared by the map annexed to the notice that it was now proposed to divide the portion remaining in the owner’s possession into four lots The said Edward Day Stokes objected to this division, and required the map to be amended by delineating the lands in the possession of the owner as a single lot, and objected to their being sold otherwise.
Fitzgibbon, in support of the objection, referred to Madden’s L. E. Court Practice, p. 174, and L. E. Act, s. 72. According to Hargreave, J., that section does not refer to fee-farm rents, and the present case is unaffected by it. If this property were broken up into more than four lots, Mr. Lunham would be liable to an action upon the covenant. The Court cannot do more than Mr. Lunham had power to do. The security for payment of the rent will be diminished if the lands be divided into more than four lots, because, although all the lands will remain liable, the class of tenants upon them will be a different one.
Carton, for the petitioner having carriage. This clause is an informal one, and but for the words at the end of it, would not amount to a clause against aliena *46 tion. To say that the Court and the creditors are bound by it equally with Mr. Lunham, is to assume that the covenant is one running with the land. There may, perhaps, be a personal remedy against Mr. Lunham.
Feb. 23.—Flanagan, J.—A somewhat singular question has been raised upon the settlement of the rental. The lands are held under a fee farm grant of the 22nd of February, 1858, made by Edward Day Stokes to Robert Lunham. The National Bank, having the carriage of the proceedings, have divided them into four lots, and Mr. Stokes, the grantor in the deed of 1858, has filed an objection to the mode in which the rental is settled, relying on the terms of a clause in the fee-farm grant. [His Lordship stated the clause.] Although the rental purports to divide the lands only into four lots, it is conceded that, if approved of, the effect will be a breach of this clause.
On the part of the National Bank it is said that this is an illegal covenant or condition, because an absolute estate in fee simple has been granted to Robert Lunham, and a clause of this kind is repugnant to an estate in fee-simple. The date of this instrument is observable. It is not executed under the Renewable Leasehold Conversion Act; its date is subsequent to the passing of that Act, and prior to the passing of the Landlord and Tenant Act, 1860. It must be considered irrespectively of the provisions in either of these Acts. I entertain no doubt as to the legal operation of this instrument it is not a lease: it does not create the relation of landlord and tenant. The reservation in it is strictly a re-grant of £400 a year issuing out of these premises. Part of the argument of counsel was applied to the form of the covenant, to which I do not attach much importance. In re Quill was argued upon the construction of the Renewable Leasehold Conversion Act. I do not think that the authority of that case applies to the present one—1st, because it came under that statute, and 2ndly, because the prohibition in it was absolute and not qualified.
I am of opinion that this qualification is absolutely void and inoperative. It is not necessary fully to discuss the question, what conditions may legally be imposed, and what not, where an estate in fee-simple is granted. [His Lordship referred to Sheppard’s Touchstone 129, and Co. Litt. 223a.] The result of the authorities is this, that a condition that the grantee shall not alienate to a particular person is good. In Attwater v. Attwater, 18 Jur. 50, Sir John Romilly held that a clause restraining the sale of an estate in fee-simple was void and inoperative, and said that he would not sanction the imposition of any new conditions. I see no distinction in principle between that case and the present one. If it be a good condition that the grantee shall not, in alienating the lands, make more than four divisions of them, it is good that he shall not make more than two, or that he shall not alienate them except in one lot. If such a condition—prohibiting alienation except in one lot—were valid, the larger estates could never be disposed of. I have no hesitation in rejecting this condition, because repugnant to the power of free alienation, which every grant in fee-simple implies. I will give no costs.
Gaussen and French v. Ellis and Others.
[1930] IR 145
KENNEDY C.J. :The judgment of the Court will be read by Murnaghan J.
15 May 1929
MURNAGHAN J. :
These appeals raise difficult questions of construction depending upon the will of Sir William M’Mahon, a former Master of the Rolls, who died on 16th January, 1837; the M’Mahon Estates Act, 1861 (24 & 25 Vict. Cap. III)a private Acta disentailing deed, dated 28th August, 1861, and deeds of re-settlement of the same date. The questionswhich relate to the title to certain lands in the County of Clare, and to a fund which was accumulated by directions contained in the will of Sir William M’Mahonhave arisen upon the death, in 1926, of Sir Lionel M’Mahon, a grandson of Sir William M’Mahon.
The property possessed by Sir William M’Mahon was large, and produced an income of £5,000 a year. Sir William had five sons and three daughters. He made provision for his younger children by way of annuities or legacies, but he was dissatisfied with the conduct of his eldest son, Beresford M’Mahon. He states his general intention of providing for his eldest son and securing for the child or issue of his eldest son a devolution of his general landed or other property, but he states that he was desirous, after making a certain provision out of the income of his property for his eldest son, of dividing the surplus income during the life of his eldest son among his other children. It is not material to restate all the directions contained in the will applicable to the income of the property during the life of testator’s son, Sir Beresford M’Mahon; but, after the year 1844, when a sum sufficient to pay all the pecuniary legacies had been realised, under the directions given by the will, £1,000 per annum was paid to Sir Beresford M’Mahon, £1,200 per annum was accumulated for a purpose directed by the will, and the balance was divided equally between Sir Beresford M’Mahon and testator’s other children, not including William M’Mahon, who had been deprived of this benefit by a codicil.
The sum of £1,200 per annum, above referred to, was directed to be applied by a clause in the will as follows:”I direct that the balance of the annual surplus fund shall be ascertained each year by my trustees during the lifetime of my son, Beresford, and that there shall be first deducted the sum of £1,200, and that the same shall be invested in Government Stock, and the dividends thereof from time to time reinvested in like stock, to accumulate as a fund during the lifetime of the said Beresford to purchase any eligible property which may offer for sale in the County of Tyrone, and I direct that such property when purchased, and the said fund in the meantime, shall go and pass pursuant to the limitations and in the same course as the rest of my property is limited to pass under this, my will, from the death of the said Beresford.” In fact, Sir Beresford M’Mahon lived until 1873, and, as time passed, the accumulation directed by the will was regarded as onerous to all parties.
After the death of Beresford M’Mahon, the testator directed that the rents, issues, and profits, dividends, interest, and income, of all his property, real and personal and mixed, subject as in the will mentioned, should be paid over by his trustees to the first and every other son of his son Beresford, and the respective heirs male of their bodies, according to priority of birth. In default of issue male of his son Beresford, the testator gave a life estate to his third son, Robert, with remainder to Robert’s first and other sons successively in tail male, with remainder over to his fourth son, Augustus, for life, with remainder to Augustus’s first and other sons successively in tail male, with remainder over to his fifth son, Charles, for life, with remainder to Charles’s first and other sons successively in tail male. Next followed limitations for testator’s daughters and their issue in the words following:”And in default of such issue, remainder in paying over the aforesaid income of the said trust estates and funds to my daughters for their natural lives, respectively, as tenants in common, and as their respective separate estates, free from the control or debts of any husband which they may, respectively, marry, remainder to my said trustees and their heirs during the lives of my said daughters to preserve contingent remainders from being defeated or destroyed, remainder in paying over the aforesaid income of the said trust estates and funds, to the first and every other son of my said daughters successively and their heirs male according to priority of birth as tenants in common, and, in default of such issue, remainder in paying over the aforesaid income of the said trust estates and funds to my right heirs for ever.”
Sir Beresford M’Mahon had five sons, the eldest of whom, William S. M’Mahon, was born on 9th November, 1839, and died in 1905. Sir Beresford M’Mahon had a limited income, whilst a large fund was accumulating by the yearly payments of £1,200, of which, together with the settled property, William S. M’Mahon was tenant in tail. In 1845 an application was made to the Master of the Rolls to allow maintenance out of the fund directed to be accumulated, but this application, which was reported as Shaw v. M’Mahon (1), was refused, on the ground that the property under the will would go over to the second or future sons, in the event of the minor dying under age, and that their contingent interest could not be affected. The parties had to abide by the situation thus created, but when in 1860 William S. M’Mahon came of age steps were at once taken to arrive at a solution, but it was considered necessary to apply for a private Act of Parliament.
Mr. Walker has argued that William S. M’Mahon could have disentailed the accumulated fund, and that he would thus have been thenceforward entitled to receive the accumulated moneys as well as the future annual sums directed to be accumulated, as there was in fact no protector of the fund so directed to be accumulated, and he refers to Fordham v. Fordham (2), which has been subsequently followed in In re Harvey; Harvey v. Harvey (3).
This was not, however, the view of the parties who concurred in applying for the private Act of Parliament. It is recited that William S. M’Mahon had subject to the trust for accumulation during the lifetime of Sir Beresford M’Mahon absolute power without the assent of any other person to dispose of the accumulated fund and all accumulations thereof; it also recited that under the will no provision for the maintenance and advancement of William S. M’Mahon could be made out of the income of the Tyrone and Clare estates during the lifetime of Sir Beresford M’Mahon, and that it would be advantageous to the children of Sir Beresford M’Mahon that the accumulated fund should be applied for their benefit; and it further recited that the fund could not be so applied without the authority of Parliament. After various proceedings in Court and inquiries it had been arranged that the estates should be resettled, and that all parties should concur in petitioning Parliament for authority to put an end to further accumulations. The necessary deeds were prepared, and the provisions of the Act were all made conditional on these deeds being perfected. Clause 1 of the Act directed the annual sum of £1,200, together with the dividends on the fund already accumulated (less by a sum of £5,000, which was to be paid to William S. M’Mahon) to be paid to William S. M’Mahon during the life of Sir Beresford M’Mahon. Clauses 2, 3, and 4 made provision in case William S. M’Mahon should die in the lifetime of Sir Beresford M’Mahon, for the issue of William S. M’Mahon, or in case William S. M’Mahon should die without issue, for the other children of Sir Beresford M’Mahon, and for provision by way of jointure for any widow of William S. M’Mahon. Clause 6 enacts:”Nothing herein contained shall alter or annul all or any of the limitations, uses, trusts, purposes declared by the said will or to which the said estates or fund are at the time of the passing of this Act respectively limited or subjected save so far as may be necessary to give effect to this Act or any order or orders to be made in pursuance of this Act.”
The matter in issue in the first appeal is the construction of the resettlement which the parties contemplated, and which was entered into after the Act passed into law. At the time the resettlement was entered into in 1861 William S. M’Mahon had four younger brothers. Three of these brothers subsequently predeceased him without leaving issue, and the fourth, Sir Lionel M’Mahon, who succeeded to the estates on Sir William S. M’Mahon’s death in 1905, died, as previously stated, in 1926, having had issue, one child, who died in infancy. The question in the case arises upon the limitations of the resettlement in default of issue of Lionel M’Mahon, the fifth son of Sir Beresford M’Mahon. The scheme of the resettlement was to limit in order of seniority life estates to the children of Sir Beresford M’Mahon with remainders to their first and other sons in tail male, with remainder to the third and fourth sons of Sir William M’Mahon, with remainder to their first and other sons successively in tail male. The estates were then limited to the daughters of the several children of Sir Beresford M’Mahon for life, with remainders in tail to the daughters ‘children, with cross-remainders a series of limitations which were outside the scope of the original settlement. Then followed limitations in favour of after-born children of Sir Beresford M’Mahon in tail, with remainder to the daughters of Robert M’Mahon, third son of Sir William M’Mahon, with cross-remainders between them; remainder to the daughters of Charles M’Mahon, another son of Sir William M’Mahon, with cross-remainders. In fact, none of the limitations already referred to subsequent to the limitation to Lionel M’Mahon, son of William S. M’Mahon, took effect on the death of Sir Lionel M’Mahon in 1926, and the property in such event stood limited “to such uses, upon such trusts, and to and for such intents and purposes, and subject to such powers and provisions, as are in, and by, the said will of the said Sir William M’Mahon, Baronet, declared and contained of, and concerning, the said estates and other estates thereby devised, and of the income thereof, in remainder after the estates by the said will limited to the sons of the said Sir William M’Mahon and their first and other sons successively in tail, and to such uses, and upon such trusts and for such purposes, as are, by the said will, declared of and concerning the said estates in favour of the daughters of the said testator, and their first and other sons in remainder in default of issue of the said Charles M’Mahon, the youngest son of the said testator.” This limitation, in the events which have happened, gives rise to the question which the settlor can scarcely be contemplated as having even considered. In the events which have happened the issue in tail male of two of the three daughters of Sir William M’Mahon has failed, and the question now arises whether cross-remainders in favour of the issue male of the third daughter can be implied.
It is a settled rule of construction that, in the case of a will, cross-remainders can be implied to effectuate the intention of a testator where a gift is given to daughters for life with remainder to the issue male of such daughters, followed by a gift over in default of such issue. In the interpretation of wills the guiding principle is to ascertain from the will itself the intention of the testator; and, if the intention is ascertained, the Court will see that it is given effect to. At an early period the implication of cross-remainders in a will was limited by somewhat technical rules; and, while cross-remainders were often implied on the failure of one out of two stirpes, the rule was originally thought not to apply in the case of gifts to three or more stirpes. That this limitation of the doctrine was erroneous is settled by the decision of the House of Lords in Atkinson v. Holtby (1), and see the cases collected in Tudor’s Leading Cases on Real Property, 4th edit., pp. 410-11. It is equally well settled that, where estates of inheritance are limited by deed, the appropriate legal terms to create the estates must be inserted in the deed if estates are to arise. The case of Doe, d., Clift v. Birkhead (2) states the position with the utmost clearness. Pollock C.B., says in his judgment, at p. 124: “Let us suppose, in order to put the case as strongly as possible in favour of cross-remainders, that the deed conveying the land should contain a clause expressly stating the intent of the parties to be that, in case A. or B. should die without heirs of the body, his moiety should go over to the other, by way of cross-remainder in tail. Then, supposing these to be the very words used, there could be no doubt as to what the parties intended, but it is certain that, in the event of A. or B. dying without issue, the intention could not be carried into effect for want of the words ‘heirs of the body,’ connected with the gift over by way of cross-remainder, and as this cannot be done by any words except the words ‘heirs of the body,’ however clearly the language may show the intention of the parties, so, a fortiori, the object cannot be effected by any inference of intention, however clearly it may arise from the context.”
These principles of law are too well settled to be controverted; but it is argued that, in the present case, there are grounds for dealing with the limitations intended to be created outside the rules applicable to the legal limitations of estates by deed. One ground of distinction is that the limitations in question are not contained in the deed of resettlement itself, but are limited by reference to another instrument, viz., the will of Sir William M’Mahon, and it is argued that the Court in such a case should interpret the estates as given by the will, and, having done so, treat the deed as executory so as to enable the appropriate legal terms to be framed in order to limit the estates ascertained by the Court to have been given by the will. In one aspect this appears to be a rather subtle attempt to depart from the rule as to the limitation of legal estates in a deed, for, if the very words of the will had been copied into the resettlement, and if the settlor had added a declaration that he intended the creation of cross-remainders between the daughters and their heirs male, the authorities above cited make it clear that no such intention could be given effect to. On the other hand, the salient fact is that the estates intended to be limited are not limited in the deed of resettlement, and it is not a proper canon of construction, as has been pointed out in Trew v. Perpetual Trustee Company (1) to construe a deed, which embodies the terms of another document, as if the ipsissima verba of the document referred to were incorporated in the deed. An illustration of the class of difficulty which arises in such cases is afforded by Pugh v. Drew (2). Although the case is not satisfactorily reported, the main facts emerge from the report. By a deed leaseholds were limited upon trusts, including trusts for certain persons absolutely. By a subsequent deed freeholds were limited upon the same trusts as those declared by the former deed concerning the leaseholds, or as near thereto as the difference of the estates of the trustees would admit. Did the rules of law give the persons who took the leaseholds absolutely merely a life estate in the freehold in the absence of words of limitation, or was the referential nature of the trust executory, so that the Court could give them what was obviously intended, namely, a fee-simple? James V.C. held that the gift was an executory declaration of trust, which could be dealt with so as to give effect to the intention, a view which met with the approval of Warrington L.J. in In re Bostock’s Settlement; Norrish v. Bostock (3).
In the present case, the settlor, after the execution of the disentailing deed, had power to dispose of and limit the entire estates subject to the life estate of Sir Beresford M’Mahonfor we read Clause 6 of the M’Mahon Estate Act as in no way controlling the disentailing deed, which would have its statutory effect under the Acts dealing with a disentailing assurance. Having limited certain estates, he paused in carving out the limitations, and he took the short cut of referring to another instrument, and declaring that the subsequent limitations were to be those given by the document to which he referred. We find it impossible to draw a distinction between a referential declaration of trust and limitations of the estate, for, in its essence, a reference to the estates given by another instrument must be an executory declaration of trusts. The nature of the instrument referred to, the estates with which it deals, the rules of construction applicable to it, must all be considered before the Court can attempt to frame the limitations which are to arise from the reference to this instrument.
In our opinion, the principle involved in Pugh v. Drew (1)applies, and it follows that cross-remainders should be implied between the three daughters of Sir William M’Mahon and their issue male under the limitations imported into the settlement by the reference in the resettlement to the will of Sir William M’Mahon.
An elaborate argument has been addressed to the Court based upon numerous decisions in this country, and at variance with the decision of the Court of Appeal in England in In re Bostock’s Settlement (2), in support of the position that a settlement of equitable estates does not require words of limitation where the intention to give an absolute estate in fee-simple is clear. In the view which we have taken as to the principles applicable to limitations derived from reference to an existing document this question does not arise. It is a point of very considerable importance, but it arises more properly in an actual settlement of equitable estates.
On this branch of the appeal we are of opinion that the decision of Mr. Justice Johnston was correct, and should be affirmed.
As regards the accumulated fund it was, in our opinion, under the will of Sir William M’Mahon, money, which, in equity, was deemed to be real estate. The private Act treats it as subject to the provisions of the Fines and Recoveries Act (4 & 5 Wm. 4, c. 92), and by the execution of the deeds referred to in the private Act, which were afterwards perfected, it was disentailed. Having regard to the resettlement of the accumulated fund it never became necessary to determine its character as real or personal estate until the year 1926. But the issue arose in that year whether it was in equity real estate, and thus subject to the cross-remainders implied between the daughters of Sir William M’Mahon and their heirs male of the body, or whether, as personal estate, it vested in thirds absolutely in the eldest sons of the respective daughters of Sir William M’Mahon. Sect. 63 of the Fines and Recoveries Act provides that the dispositions necessary to effect the disentailment shall be an assignment registered as prescribed, and that “money so circumstanced as aforesaid” shall, as to the person in whose favour or for whose benefit the disposition is to be made, be treated as personal estate. The Court of Appeal in England has decided in In re Dickson’s Settled, Estates (1), decided upon the corresponding sect. 71 of the English Act (3 & 4 Wm. 4, c. 74), that the effect of this provision is not to turn the money into personal estate for all purposes, but that, as a mere matter of conveyance or assignment, it was the object of the section that the money dealt with should pass as personal estate. In our opinion, this is the true view, and if the moneys are to lose their character of real estate in equity it must be the result of some act by a person competent to make the alteration. By the indenture of 28th August, 1861, the securities were transferred to the trustees, their executors, administrators, and assigns, but there was also included a declaration on the part of William Samuel M’Mahon that the stocks, funds, securities, or trust moneys thereby assigned should from thenceforth be, and be deemed to be, of the nature and quality of personal estate to and for all intents and purposes whatsoever, any rule of equity to the contrary notwithstanding. By an indenture of the same date trusts were declared of the same funds in the manner usual in the settlement of personal estate in favour of successive sons of Sir Beresford M’Mahon and their children, and on failure of such trusts for younger children of Sir William M’Mahon for life with remainder to their children, and on failure of such trusts “upon such trusts and to and for such intents and purposes and subject to such powers and provisions as are in and by the said will of the said Sir William M’Mahon, Bart., declared and contained of and concerning the real and personal estate thereby devised and bequeathed and of the income thereof in favour of the daughters of the said Sir William M’Mahon and their first and other sons in remainder, and in default of issue of the said Charles M’Mahon.” Up to the limitation just mentioned the fund was dealt with as a settlement of personalty; in the deed of resettlement there is a power to vary investments, and there is no suggestion that the moneys are ever to be invested in landsthe fund was to become absolutely vested in any child of a tenant for life on attaining twenty-one. It is impossible to reconcile these limitations with any idea that the accumulated fund was to be treated as real estate, or to follow the limitations under which the real estates were settled. The private Act of Parliament authorised the withdrawal of £5,000 from the capital of the fund, and it seems to us by the epitome of the deed of resettlement of the accumulated fund to recognise this fund as a fund of personalty. We can see no reason why the express declaration of the settlor, that the fund was to be treated as personalty, should not be given effect to, a position which is clearly recognised in the various deeds and the private Act of Parliament.
The question, therefore, narrows down to this point: Accepting the position that the accumulated fund was settled as a fund of personalty, and so remained during the period down to the death of Sir Lionel M’Mahon, in 1926, does the ultimate gift of the fund to the daughters of Sir William M’Mahon and their first and other sons in remainder by virtue of the reference to the gift of real and personal estate devised and bequeathed by the will of Sir William M’Mahon in favour of his daughters and their first and other sons in remainder effect a reconversion? We cannot see how this gift can in any way reconvert the accumulated fund into realty under any doctrine of equity. The only effect is to allow the first son of a daughter to take an absolute interest in his share of the fund if he takes an estate tail in the realty devised by the will.
We have considered very carefully the elaborate arguments which have been brought forward, as well as the numerous authorities cited by counsel, and we are indebted to counsel for a very exhaustive examination of the authorities and criticism of the points involved. The considerations which we have dealt with have, however, satisfied us that no reconversion of the accumulated fund has taken place, and that, accordingly, no question of implication of cross-remainder therefore arises.
In our opinion, on this appeal, the judgment of Mr. Justice Johnston is correct, and should be affirmed.
In re Fallon
[1956] IR 288
Budd J.
Michael Fallon having recited in his will that he was possessed of certain freehold and leasehold property bequeathed half the net rents to his wife for life and the other half to be equally divided between his brother, Thomas Fallon, and his nephew, Michael Fallon. The will then proceeds:”And I also will and bequeath that after my beloved wife’s death said property to become the absolute property of the said Thomas Fallon and Michael Fallon for their lives conjointly share and share alike without power to either of them to dispose divide or sell any part thereof and after their death to become the conjoint property of their elder surviving sons respectively share and share alike and to continue on to each successive generation to the elder surviving sons and direct male heirs of the said Thomas Fallon and Michael Fallon’s descendants without power of disposition to the said Esther Fallon, Thomas Fallon and Michael Fallon.”The residue of his estate he gave to his wife, Esther Fallon. She in turn bequeathed her residuary estate in trust for two sisters and three brothers named in her will share and share alike with a proviso that should any of her sisters or brothers pre-decease her, his or her share was to be divided between his or her children equally. By a codicil to her will she made certain bequests not material here but otherwise confirmed her will. The defendant, John Talbot, has been appointed to represent the class of persons who would, in the events that have happened, take under the residuary bequest in Esther Fallon’s will.
The plaintiff and the first-named defendant are the eldest sons of Thomas Fallon and Michael Fallon respectively surviving at the date of their respective parents’ deaths. Since I am not prepared to construe the will as conferring an estate in fee simple on the plaintiff and first-named defendant, the principal point of construction which I have to determine is as to whether or not the clause I have quoted should be construed as operating to create an estate in tail male in the freehold property thereby devised. If so, since the plaintiff and first-named defendants have executed disentailing deeds, the property would now be held by them in fee simple. If not, it is agreed that the remainder interest in the property passes under the residuary bequest after the deaths of the plaintiff and first-named defendant.
It is contended by Mr. Conolly that I should construe the devise as one to the eldest surviving sons of Thomas Fallon and Michael Fallon and their respective male heirs and applying the rule in Shelley’s Case (1) the words used dealing with the descent of the estate are to be treated as words of limitation and not of purchase, thus creating an estate in tail male. Mr. Conolly referred me to Lord Davey’s opinion as stated in Van Grutten v. Foxwell (2) that the rule in Shelley’s Case (1) was a rule of law and not a mere rule of construction. The rule he states in these words (at p. 684):
“that wherever an estate for life is given to the ancestor or propositus, and a subsequent gift is made to take effect after his death, in such terms as to embrace, according to the ordinary principles of construction, the whole series of his heirs, or heirs of his body or heirs male of his body, or whole inheritable issue taking in a course of succession, the law requires that the heirs or heirs male of the body, or issue shall take by descent, and will not permit them to take by purchase, notwithstanding any expression of intention to the contrary. Wherever, therefore, the Court comes to the conclusion that the gift over includes the whole line of heirs, general or special, the rule at once applies, and an estate of inheritance is executed in the ancestor or tenant for life, even though the testator has expressly declared that the ancestor shall take for life and no longer, or has endeavoured to graft upon the words of gift to the heirs, or heirs of the body, additions, conditions, or limitations which are repugnant to an estate of inheritance, and such as the law cannot give effect to.”
A glance at the devise is sufficient to make it clear that there are great difficulties in interpreting the words used in the fashion suggested and a question would curtail seem to arise as to whether the testator has so worded the devise that it comes within the rule at all. Indeed, in the latter part of the very paragraph referred to by Mr. Conolly of Lord Davey’s judgment in Von Grutten v. Foxwell (2) he points out that the premises for an application of the rule may not be found in the words used by the testator in these words:”The rule, I repeat, is not one of construction. and, indeed, usually overrides and defeats the expressed intention of the testator; but the question always remains, whether the language of the gift after the life estate properly construed is such as to embrace the whole line of heirs or heirs of the body or issue, and that question must be determined apart from the rule, according to the ordinary principles of construction, including those which I have already referred to.
The testator may conceivably shew by the context that he has used the words ‘heirs,’ or ‘heirs of the body,’ or ‘issue’ in some limited or restricted sense of his own which is not the legal meaning of the wordse.g., he may have used the words in the sense of children, or as designating some individual person who would be heir of the body at the time of the death of the tenant for life, or at some other particular time. If the Court is judicially satisfied that the words are so used, I conceive that the premises for the application of the rule in Shelley’s Case (1) are wanting, and the rule is foreign to the case.”
I notice in particular that Lord Davey points out that the testator may have used the words, “heirs” or “heirs of the body,” as designating some individual who would be the heir of the body at the time of the death of the tenant for life and it will be seen that something very analogous to this example is present in Michael Fallon’s will.
Admitting that a question of construction arose first. Mr. Gogarty agreed that I must first find what devise or purported devise the testator had made or sought to make to take effect after the death of Thomas Fallon and Michael Fallon. It was, he contended, such a gift as to include the whole heritable issue of each respectively of the elder surviving sons of Thomas Fallon and Michael Fallon to take in succession so that an estate in tail male was created. Certainly some of the words used are suggestive of an intention to continue the estate granted to the two elder surviving sons as an estate of inheritance, as in that portion of the purported limitations referring to “direct male heirs.”Taken by itself that supports the suggestion that the creation of an estate in tail male was intended. But these words do not stand alone. They are preceded immediately by the words, “and to continue on to each successive generation to the elder surviving sons,” and followed by the words,”of the said Thomas Fallon and Michael Fallon’s descendants.”I may straightway point out that the elder surviving sons of Thomas Fallon and Michael Fallon’s descendants might not be the direct male heirs of Thomas Fallon or Michael Fallon’s elder surviving sons at all. Indeed, an assumption that the limitation is to the elder surviving sons and direct male heirs of Thomas Fallon and Michael Fallon’s eldest surviving sons may well be unjustified since it is the descendants of surviving elder sons and direct male heirs of Thomas Fallon and Michael Fallon that are referred to. In any event, it is these words, “the elder surviving sons . . . of the said Thomas Fallon and Michael Fallon’s descendants,” that create the major difficulty in accepting the proposition that an estate in tail male was created by the testator. They are, taken by themselves, not apt words to create an estate in tail and if they are to be given their natural meaning indicate an attempt by the testator to create some species of estate of inheritance unknown to the law and one which would offend the rule against perpetuities. Faced with the difficulties created by the use of these words, it has been submitted to me, quite rightly, that in a matter of construction I should look to the will as a whole, and that, if I find that there is indicated a general intention to create an estate of inheritance in the family, I should so mould the estate expressed to be given into that species of estate nearest to a fee that can take effect, here an estate in tail male, and thus effectuate the testator’s real intentions. That a certain amount of moulding is required is frankly conceded and certain cases were cited to me to show that this was a proper course to adopt. To some of those relied on, I shall refer.
The Vice-Chancellor in Studdert v. Von Steiglitz (1) (at p. 573) said:
“In a case like the present, if the Court considers that a general intention to continue the estate as an inheritance in the testator’s family sufficiently appears, it will mould estates expressed to be given in fee, which cannot take effect consistently with the rules of law, into the species of estate next approaching a fee that can take effect; and, as the only estate of inheritance beside a fee is an estate tail, it will construe a devise which purports to give successive estates in fee simple into successive estates in tail.” These general observations are undoubtedly helpful to Mr. Gogarty’s contentions, but there are further more particular observations in the Vice-Chancellor’s judgment which must also be considered and which I shall refer to later.
The case of Crumpe v. Crumpe (2) was relied on as indicating how far the Court should go in giving effect to the intention of the testator to create an estate in tail male though not expressly given in the words creating the devise. The testator devised his estate to trustees to pay the rents to his nephew, Silverius Moriarty, but should his nephew encumber the lands at any time he revoked the gift of the rents from his nephew and his heirs male. FitzGibbon L.J. took the view that the Court was entitled to use this revocation clause as a “gloss” upon the preceding gift. “I think,” he says (at p. 371), “that the whole passage must be read continuously as one entire disposition, and so reading it, the words at its conclusion indicate that ‘his heirs male’ were included in the limitation to Silverius Moriarty. There is, as I have shown, nothing necessarily inconsistent with this limitation in what has gone before, and therefore I find, on the whole passage, a sufficient indication of the intention that ‘Silverius Moriarty and his heirs male’ should be the devisees; or, in other words, that he should take an estate in tail male.” That is merely an instance of reading back something into a devise from that which appears later in the will and thus effectuating the testator’s intention as shown by implication. That is something I would be quite ready to do, but let me point out that FitzGibbon L.J. points out that there is nothing necessarily inconsistent with the limitation to “his heirs male” in what has gone before, an indication as I read it, that if there was such an inconsistency, he would not necessarily have construed the limitation as he did, and there certainly is somethingprima facie inconsistent with the creation of an estate tail in the will of Michael Fallon.
The Vice-Chancellor again in Macnamara v. Dillon (1)found that a devise of property to John Barry in trust for his eldest son, Arthur Dillon, to hold as tenant for life, with remainder to his heirs, notwithstanding the addition of the words, “Arthur to be considered as strict tenant for life to all the above stated property,” resulted in Arthur taking an estate tail. But it would seem that the limitation over was capable of including the whole line of heirs and it would appear clear that before an estate tail can be held to have been created words must be found to be used which are capable of including the whole line of heirs without there being found other words inconsistent with such a limitation. At a later stage of the Vice-Chancellor’s judgment in Studdertv. Von Steiglitz (2) that I have already referred to, after analysing a number of cases he finally states his view as to the true principle of construction applicable to the will which he is construing in words which are apt to quote in this connection. “I consider it to be,” he says (at p. 581),”that where there is a devise to several in succession, in words sufficient to pass the fee or the whole interest of the testator in freeholds, the Court will, in order to give effect to the general intent, construe the gift as of successive estates in tail.” That principle of construction is, I conceive, equally applicable to the will of Michael Fallon.
I proceed then to the question of construction. Granted there are words indicating that the testator had in mind creating a series of successive estates confined to the family and confined, according to portion of the language used, to direct male heirs, the testator has not stopped there and I must look to the will as a whole. After the gift to the elder surviving sons of Thomas and Michael Fallon, the devise is to “the elder surviving sons and direct male heirs of Thomas Fallon and Michael Fallon’s descendants.” Now the testator has used that very phrase, “the elder surviving sons,” earlier in his will to designate the persons who are to take the suggested estate in tail male. I see nothing to indicate that he has used the words in a different sense on the second occasion. According to the ordinary rule of construction the phrase, “the elder surviving sons,” in the first clause means the eldest sons of Thomas Fallon and Michael Fallon respectively who are living or surviving at the date of the death of each life tenant. Likewise, “the elder surviving son” in the second clause must, I conceive, mean the eldest son surviving at the date of the death of the immediate predecessor in title in each generation, unless I am to give a different meaning to the phrase when secondly used, for which there would seem to be no valid reason. On this construction if a direct male heir were to die in his father’s lifetime his younger brother surviving at the date of the father’s death would take, notwithstanding that such direct male heir should leave a son him surviving. That is to say, the direct male heir would be ousted. Indeed, the issue of the eldest son might be ousted in each generation. That all comes to this, that “the elder surviving son” is not necessarily the direct male heir and there is a hopeless inconsistency in the two clauses. If a fee tail is to be created, it must be the direct male heir who takes. Harking back to what Lord Davey said, words have been used very akin to designating some individual person who would be the heir of the body at the time of the death of the tenant for life.Prima facie, then, as a matter of construction these words will not support a fee tail, and the next question is whether they can be disregarded. I say disregarded, because I think that nothing less will do if an estate in tail male is to be supported. I am not, I feel, at liberty to say that the expression, “the elder surviving son,” should be construed as meaning the next male heir when the same phrase is used in the same clause with a different meaning. I feel rather that, since the phrase, “elder surviving sons,” must be given the meaning I have indicated, the expression, “direct male heirs,” has to be qualified accordinglythat is, unless the former words can in some way be disregarded.
It was suggested at one stage that these words were mere surplusage. I cannot so regard them. If an estate tail were clearly created to begin with and then later in the will some additional words inconsistent therewith were superadded, I might conceivably reject them. But here the words, “elder surviving sons,” immediately precedes the words, “direct male heirs,” and is part of the suggested limitation of the estate tail. I cannot disregard words forming an integral part of the purported limitation. I have only to point out that if they were to be cut out when secondly used, there would seem to be no reason not to apply the suggestion to the same words when first used, which would make nonsense of the whole clause. Accordingly, I am driven to the conclusion that as a matter of construction apt words have not been used to create an estate tail or such as to embrace the whole line of heirs and accordingly I do not arrive at the stage of applying the rule in Shelley’s Case . What I have said determines the main issue, but I should mention that Mr. Egan pointed out that the limitation was not to the elder surviving sons of Thomas Fallon and Michael Fallon’s elder surviving sons, but to the descendants of the elder surviving sons of Thomas Fallon and Michael Fallon who might not be their heirs at all which may be another flaw in the suggested creation of an estate tail. If a fee tail is not created, the attempted devise in remainder after the life estates created in the plaintiff and first-named defendant as persons designated fails as offending against the rule against perpetuities, and the property will on the cesser of the respective life estates fall into residue and pass accordingly.
Montgomery v Montgomery
House of Lords.
15 December 1879
[1880] 14 I.L.T.R 1
the Lord Chancellor (Cairns), Lords O’Hagan, Blackburn
Nov. 7, 10, 11, 12; Dec. 15, 1879
The Lord Chancellor.
My Lords, the Bill in the suit out of which the present appeal arises was filed in the Court of Chancery in Ireland in 1876. It prayed that a disentailing deed dated the 24th of April, 1876, so far as it purported to testify the consent of the late Thomas Montgomery to the conveyance thereby made, might be declared null and void, on the ground that at the time of executing this disentailing deed Thomas Montgomery was incapable, from mental and bodily weakness, of understanding the same, and from giving his consent, as protector of the settlement, to the barring of the estate tail then vested in the late John Ferguson Montgomery.
The Vice-Chancellor of Ireland made a decree in accordance with the prayer of the Bill with costs; but the Court of Appeal in Ireland, consisting of the Lord Chancellor, the Lord Chief Justice, the Lord Chief Baron, and Lord Justice Deasy, reversed this decree and dismissed the Bill, but without costs.
The late Thomas Montgomery was, under the will of his father, Hugh Montgomery, who died so long ago as the year 1822, entitled in 1876, to one moiety of an estate called the Annemount estate for his life, with remainder to his nephew, John Ferguson Montgomery, in tail male. In this moiety, therefore, Thomas Montgomery was the protector of the settlement. The other moiety of the Annemount estate belonged to John Ferguson Montgomery as tenant in tail male in possession.
There was further in the will of Hugh Montgomery a shifting clause which, as matters stood in 1876, would, on the death of Thomas Montgomery, if the entail of Annemount was not barred, have carried away Annemount to an elder brother of Thomas Montgomery and his family, called in the proceedings the Benvarden family. On the other hand, John Ferguson Montgomery had it in his power to defeat this shifting clause and to retain Annemount in his branch of the family, by barring the entail in the moiety of which he was tenant in tail in possession, and by barring the entail in the other moiety with the consent of Thomas Montgomery, the protector of the settlement.
On the 22nd of April, 1876, Thomas Montgomery was seized by a severe illness from which he never recovered, and he died on the 5th of May following. He was at the time in his 80th year. The illness was diarrhœa, and acting on a man advanced in years, and already somewhat enfeebled in body, it had an extremely weakening effect, causing his mind occasionally to wander. The deed in question was executed by him on the 24th of April. In order to execute it he had to be propped up in bed; and that he was in a state of great feebleness is apparent even from an inspection of the signature. He had not ordered the deed to be prepared. It was brought to him ready for execution, and it was explained to him by the respondent, his nephew, Thomas Montgomery the younger, the brother of John Ferguson Montgomery, and by Mr. Wellwood, the manager of Mr. Wallace, who was the solicitor of the late Thomas Montgomery the elder, but who was also the solicitor of John Ferguson Montgomery, and of Thomas Montgomery the younger.
My Lords, I am not surprised, looking to the facts which I have mentioned, and as to which there is no controversy, that this deed has been challenged by those members of the family who are interested in setting it aside. The Court of Appeal in Ireland were of opinion that the circumstances attending the execution of the deed required the fullest investigation, and for this reason, while they supported the deed they relieved the plaintiff from paying the defendant’s costs in the suit. After a very careful consideration of the evidence, I am satisfied that the Court of Appeal, both in supporting the deed and in disposing as they did of the costs of the suit, came to a right conclusion.
I do not propose to go in any detail through the evidence which has been brought so fully under your Lordships’ consideration, but merely to state the conclusions which I draw from it.
I think it quite clear that for some years before his death, and particularly in the years 1874 and 1875, Thomas Montgomery had prominently before his mind the position of his nephew, John Ferguson Montgomery, in reference to the Annemount estate; that he understood perfectly that in one half of it he himself was the protector of the settlement, that is, that John Ferguson Montgomery could bar the entail with his consent, and could not bar it without his consent; and that the effect of giving his consent would be to keep the property in John Ferguson Montgomery and his branch of the family, that is to say, the Ballydrain branch, whereas the effect of withholding his consent would be to pass the property to the Benvarden branch. I think it clear also that, although on friendly and even affectionate terms with the Benvarden branch of his family, and although he provided benefits for them, or some of them, under his own will, he had no wish or desire that the Annemount property should go to them, but on the contrary, that his wish was that it should be secured for his nephew, John Ferguson Montgomery, as the head of the Ballydrain branch of the family. I think it clear that the only consideration which prevented Thomas Montgomery taking some immediate step to join his nephew, John Ferguson Montgomery, in cutting off the entail was that his nephew, John Ferguson Montgomery, had become addicted to horse-racing, and he was afraid that if the property were placed immediately and without control in his power he might, if he found himself involved in embarrassments, mortgage or encumber it. I think it established that on all these subjects he had repeated conversations with Mr. Wallace, his confidental solicitor, and that Mr. Wallace knew perfectly well the feelings of Thomas Montgomery in reference to his nephew and the property, and knew, in particular, that Thomas Montgomery would be quite ready to join his nephew, John Ferguson Montgomery, in cutting off the entail, if only he could be satisfied that the engagements of John Ferguson Montgomery on the turf would not lead to the wasting of his property.
In this position of matters a very singular coincidence occurred. On the 8th of April, 1876, John Ferguson Montgomery was thrown from his horse at the Maze races, near Belfast, from which accident paralysis of the spine ensued. He was conveyed to the Ulster Club at Belfast, where he lingered till the 30th of April, when he died. On the 19th of April an eminent London surgeon who had gone over to Belfast to see him, pronounced that his recovery was altogether hopeless. Thomas Montgomery was aware of the condition of his nephew.
Then, as I have already said, on the 22nd of April Thomas Montgomery was seized with the illness of which he died. That this would be the result of the illness appeared pretty certain, both from its severity and from his advanced age. The position of matters was, therefore, extremely critical. If anything was to be done to prevent the half of the Annemount property going away from John Ferguson Montgomery and his brothers it must be done before Thomas Montgomery died. On the other hand, the reason, and apparantly the only reason, which had deterred Thomas Montgomery from joining in a deed to effect this object, the fear of what his nephew’s racing propensities might lead to, no longer existed, for his nephew was on his death-bed.
The residence of Thomas Montgomery was at Birchhill, near Antrim, about 10 miles from Belfast. John Ferguson Montgomery was, as I have already said, at Belfast, and there also was the place of business of the respondent, Thomas Montgomery the younger, and of Mr. Wallace, the solicitor. On the 23rd of April, John Ferguson Montgomery executed at Belfast a disentailing deed of the moiety of Annemount, of which he was tenant in tail in possession, and on the same day made his will, leaving the whole of his property to the respondent, Thomas Montgomery the younger, subject to certain legacies and charges.
On the morning of the 24th of April, when the news of *2 the serious illness of Thomas Montgomery reached Belfast, it was made known to the respondent, and to Mr. Wellwood, as the manager of the business of Mr. Wallace, and through them, or one of them, to John Ferguson Montgomery. It was evident that no time was to be lost, and a deed was prepared at the request of John Ferguson Montgomery, barring the entail in the other moiety of the Annemount property, which is the deed in question. The deed was executed in Belfast by John Ferguson Montgomery, and was taken to the residence of Thomas Montgomery at Birchhill by Mr. Wellwood and the respondent. Much comment was made at the bar on what was termed the irregularity and impropriety of taking a deed already prepared. There is no doubt that, under ordinary circumstances, it would have been usual and proper to have consulted Thomas Montgomery beforehand, and to have ascertained that he was prepared, at that time and in that form, to give his consent as protector of the settlement. But the circumstances were, as I have already said, entirely exceptional and peculiar. If anything was to be done it had to be done at once. It was not a question of the disposal of Thomas Montgomery’s own property. It was a question whether he would give his consent to John Ferguson Montgomery disposing of his estate tail, and for this consent John Ferguson Montgomery was quite entitled at any time to ask. If the consent was given, it must, according to the exigency of the statute, be given not later than the day on which John Ferguson Montgomery executed the deed. Bearing, therefore, in mind the the knowledge which Mr. Wallace had acquired as to the inclination and intentions of his client, Thomas Montgomery; bearing in mind that the only obstacle to Thomas Montgomery’s consent to the barring of the entail appeared to be removed by the fatal illness of his nephew, John Ferguson Montgomery, and bearing in mind the necessity for immediate action, I cannot say that Mr. Wallace and his manager, Mr. Wellwood, were not justified in taking to Thomas Montgomery a deed prepared for his execution, provided always that he was capable at the time of understanding it, and had a sufficient explanation of its nature given to him.
These, therefore, appear to me to be the two questions which remain: Was Thomas Montgomery capable of understanding the deed? and, was its nature and effect properly explained to him?
With regard to the explanation of the deed, this depends upon the evidence of the respondent and of Mr. Wellwood. They saw the deceased, Thomas Montgomery, separately. Their evidence, which I will presently refer to, is clear and distinct, and it is not in any way shaken or qualified by their cross-examination. As to the respondent, Thomas Montgomery, he is no doubt the person benefited by supporting the deed, and he would, in the same proportion, be the person to lose if it was set aside. His evidence is to be examined with care and jealously; but where he states matters of fact which must either be true or as to which he must be committing perjury, I am not prepared to set aside his testimony merely on the score of interest. With regard to Mr. Wellwood, it is true that as a legal adviser he is responsible for what was done, and may be supposed to have a bias towards maintaining the propriety of what was done. But, on the other hand, it is to be remembered that he and his principal, Mr. Wallace, were the confidential and trusted legal advisers of the deceased, Thomas Montgomery, and it is not to be supposed that either of them would, without any apparent object, have allowed their client to execute a document under circumstances which did not, at all events in their judgment, make it appear that he should do so.
The statement of the respondent with regard to the explanation which he gave of the deed on his arrival at Birchhill on the 24th of April is this:—“I sat down beside the bed, and after a little while I said to him, ‘You remember that at Mr. Alick’s death half of the property which he got from his father went to my brother John, and the other half to you for your life; and it appears that if you wish your half to go to my brother John and his heirs, at your death, it will be necessary for you to join John in executing a disentailing deed. If you don’t execute this deed your half of the property will go to the Benvardens at your death.’ He said, ‘Did I not sign that deed already?’ I replied, ‘No.’ He said, ‘I thought I had signed it.’ I replied, ‘No, you never signed it yet, but if you wish your half of the property to go to my brother John and his heirs, it will be necessary for yon to sign it now.’ I then said, ‘Do you wish your half of the property to go to my brother John and his heirs?’ He replied, ‘Yes.’ I then said, ‘Well, this deed has to be signed by both John and you. John has already signed it, and Wellwood has brought it out and has it here, and if you wish I will now send him in, and he’ll answer any questions or give you any explanation you may require about it.’ He said, ‘Very well.’ I then left the room, and went down stairs to the drawing-room and brought up Mr. Wellwood.”
After Mr. Wellwood came into the room the respondent left the room. The evidence of Mr. Wellwood as to what then took place is as follows:—“I heard nothing said before defendant [that is the respondent] and the doctor left the room. They left the room, and then Mr. Tom and I were alone. I said to him then, ‘I have brought down a disentailing deed for you to sign, Captain John having already signed it. It has for its object the sending of your moiety of the Annemount estate to Captain John. I am sure you are aware that he is very ill?’ He said be was. He then replied, ‘I thought I executed such a deed as this before?’ I said ‘You did not. Perhaps it’s the will that’s running in your mind by which you gave Birchhill and all your other property to your nephew Tom.’ He then appeared to recollect himself. He then said I was quite right. He then added, ‘I would have executed such a deed long since, but I was afraid Captain John would raise money on it.’ I said he was not likely ever to raise money on any property now: that he had made his will by which he devised all his property to his brother Tom, and that in point of fact his execution of the deed would send the Annemount estate to defendant immediately upon the Captain’s death. He said that was his wish, that he wanted to give Tom all the property he could, and he at once consented and said he would sign the deed. During this I was sitting alongside his bed. The next thing I did was to read the deed. I read it every word distinctly to him. During the reading, when I came to the granting part, just after the words granted and confirmed, he stopped me and asked me would he (Mr. Tom himself) not have the property until his death. I said it should not disturb his rights at all, as he would perceive when I went further on. I read on through the parcels and down to theh abendum, and, when I came to that part of the deed which made it subject to the life estate of Mr. Tom, I read that portion slowly and with emphasis. He appeared to nod his head as if that he was satisfied. When I finished reading, I went to the door and saw [respondent] on the lobby, and told him to send in the doctor and Mr. Thompson to witness the deed. They came. When Mr. Thompson came into the room he said, ‘Mr. Tom, I don’t know anything about this deed. Do you understand it?’ Mr. Tom said yes, Mr. Wellwood had both read and explained it to him. That was as soon as Mr. Thompson came into the room.”
In my opinion this evidence, if it is to be believed, and I see no reason why it should not, establishes that a sufficient explanation of the deed was given to the deceased, and from the remarks which the deceased made, it also goes a considerable way to show that he was capable of understanding, and understood the nature of the deed.
With regard to the general evidence of the capacity of the deceased, Thomas Montgomery, to understand the meaning of his concurrence in the disentailing deed, I put aside any minute examination of the evidence as to his *3 mental or physical condition prior to the 22nd of April, because it appears to me beyond controversy that, although, perhaps, somewhat enfeebled by age and infirmity, he was, at all events up to that time, perfectly competent to transact all the affairs of life connected with his property, and was in the habit of transacting them with intelligence. I think it probable also that the just conclusion from the evidence is, that during the after part of Saturday, the 22nd, and during all Sunday, the 23rd, while the diarrhœa continued unchecked, his enfeeblement was so great that his mind wandered, and that he was not during that interval in a condition to transact any business. The question is as to his state of mind on the afternoon of the 24th, when he executed the deed. In addition to the evidence I have already mentioned of the respondent and of Mr. Wellwood, I attach much weight to the evidence of Mr. Thompson. He was a neighbour of the deceased, and a brother magistrate. He had known him all his life (the deceased, in fact, bad been Mr. Thompson’s trustee or guardian), and he, Mr. Thompson, and his wife were at this time constant, indeed almost daily, visitors at Birchhill, by reason of the illness of a sister of the deceased. Mr. Thompson was acquainted with the habits of the deceased, with his appearance, with his manner of speaking and acting, and would be able from these circumstances to form a judgment as to his state of mind which a comparative stranger could not do. Mr. Thompson was an attesting witness to the deed, and his evidence on this subject is distinct and unhesitating. He is asked, “When you saw him sign that deed, what is your belief as to his mental competency?” And he replies, “I am perfectly confident that he understood all about it, and if I had not been perfectly confident, I should not have been a party in allowing him, my own friend, to do anything that I did not think he fully understood. He was a man you could not get to do anything he did not like to do. He would not sign anything readily until he perfectly understood it. I have remarked that we had considerable transactions about my affairs. I have no personal interest in this matter whatever.”
The only evidence bearing in a different direction to which I need advert is that of Dr. Spearing, the medical man in attendance upon the deceased at the time of his death, and who had been in the habit of attending him for about two years previously. Dr. Spearing is produced as a witness for the appellants against the deed, and I understand his evidence is intended to represent that, in the opinion of Dr. Spearing, the deceased was not capable of understanding the meaning of the deed in question, although I do not observe that he distinctly says so. And he draws distinctions as to what is a “long deed,” as to “what is a matter of serious business,” as to “what the deceased understood before,” and as to “what he had given instructions for before”—all of which are expressions which leave considerable latitude for what may be termed opinion evidence, and also for forming a different opinion at different times.
It is further to be observed that Dr. Spearing stands in a very peculiar and difficult position. He was the medical adviser of the deceased, and it was for him, of all persons present, to have expressed an opinion at the time, if he entertained it, adverse to the capacity of the deceased to execute a deed. Moreover, he admits that he was consulted as to whether the deceased could execute the deed, and he replied at once, to use his own words, “Fortunately for you, for this purpose he seems to have a lucid interval. How long it will last I cannot say. I could not answer for him in half an hour.” After this he assisted in the arrangements necessary to enable the deceased, who was in bed, to execute the deed, and he became an attesting witness to the deed.
To this I must add that, when Dr. Spearing’s evidence comes to be tested by cross-examination, his memory appears to be extremely defective as regards most of the minute occurrences connected with the execution of the deed—occurrences which require to be accurately ascertained and detailed in order to spread before the Court a full and accurate picture of what took place, and thus enable the Court to correct mere opinions by facts. He does not remember whether anything was said to him about his signing the deed; he supposes they asked him, but he does not recollect. During the time of the execution he is asked did deceased say anything at all? He replies, “He did, but nothing material. I do not know anything that he said.”“Did the old man make any observation?”“He may have done so, but I don’t remember.” There are a number of other instances of the same kind in which Dr. Spearing either says he does not remember what took place, or will not undertake to contradict the statement of what took place given by other witnesses.
The conclusion which I draw from Dr. Spearing’s evidence is, not that Dr. Spearing wishes either to conceal or misrepresent anything which occurred, but that, as he more than once says in his evidence, he did not at the time attach any importance to the deed or to its execution. It did not at the time strike him that the deceased was incompetent to execute the deed; but subsequently, when he found the execution of the deed had become the foundation of a family quarrel, and that a property of some value was effected by it, he began to have misgivings which he did not feel at the time, and so gradually reasoned himself into the opinion that because, as he thinks, the deed was a long one, and difficult to understand, and because the deceased had not given instructions for it to be prepared beforehand, therefore his capacity was not sufficient for an intelligent assent to the deed.
My Lords, I agree with the Court of Appeal in Ireland in thinking that the appellant has failed in impeaching this deed. I think the Court of Appeal were right in holding that the circumstances were so peculiar as to require investigation, and in exempting the appellant from the payment of costs in the court below. I see no reason, however, why the ordinary rule as to costs in this House should not be followed, and I will therefore move your lordships that the appeal should be dismissed with costs.
Lord O’Hagan.
My Lords, the questions in this case are succinctly put by the two issues as to which, with the acquiescence of all the parties to the suit, the vivâ voce evidence was taken:—“1. Whether, at the time of the execution of the deed of the 24th April, 1876, Thomas Montgomery was incapable from mental or bodily weakness of understanding the same. 2. Whether the said Thomas Montgomery knew and approved of the contents thereof.” The substance of the plaintiff’s contention is presented in the 20th and 24th paragraphs of the Bill, which are in these terms:—“20. The plaintiffs believe and charge that the said Thomas Montgomery, who was then in the 80th year of his age and who died a few days afterwards, had become so impaired in his faculties from mental and bodily weakness that, at the time of executing the said deed, he was quite incapable of understanding the effect of what he was asked to do or of giving a valid legal consent to the deed to which his signature was procured.”“24. The plaintiffs believe and charge that the idea of the disentailing deed originated entirely with Mr. Wallace, and was suggested by him for the first time after the accident to the said John Ferguson Montgomery, and that the deed was prepared by him as solicitor of the said John Ferguson Montgomery, and that the said Thomas Montgomery never heard of it until this said deed already engrossed was presented to him for signature.”
The controversy is purely as to facts and inferences reasonably to be deducted from them; and your lordships are required to decide between the conflicting views adopted, as to those facts and inferences, by the learned Vice-Chancellor and the Court of Appeal in Ireland.
A point as to the jurisdiction of a Court of Equity to deal with such a case was raised by the Lord Chief *4 Justice. His learned colleagues did not concur with him, and I am not prepared to do so. But it is not necessary to pronounce any decision on the validity of the objection. It was not raised by the defendant in his pleadings, or in the argument in the Courts below, or in this House. On the contrary, he formally waived it by accepting the issues, and, whatever we may think of the desirableness of a jury trial for the purpose of obtaining satisfactory replies to such questions, we are bound, as we are competent, to answer them for ourselves.
After the narrative of the Lord Chancellor, I do not trouble your lordships by going into a history of the transactions which issued in the deed impeached by the plaintiff. It is in your recollection, and may be briefly summarised by the statement that that deed was executed by Thomas Montgomery and John Ferguson Montgomery, disentailing the lands of Annemount and barring the plaintiff’s right to them, under a shifting clause in the will of Hugh Montgomery, of the 13th of June, 1819, which had come into operation on the death of his two sons without issue, and under which, but for the deed, the plaintiff would have been entitled to a moiety of those lands.
Unquestionably, the circumstances under which the execution of the deed took place were peculiar, and calculated to induce suspicion and compel inquiry. Thomas Montgomery, the protector of the settlement, was 80 years of age, and although it seems conceded that, before his last illness, and until the 22nd of April, 1876, he was quite capable of making a valid transfer of property, his memory had, more or less, been failing for a considerable time. On the 22nd, he was attacked by the illness which terminated his life. He grew worse, and on the 24th, the day on which the deed was executed, his weakness was great. At certain periods of that day his mind was wandering, and his medical adviser thought it necessary to inform his friends of his dangerous state. Thereupon, the defendant was advised of the necessity of a disentailing deed, executed by his uncle as protector of the settlement, to prevent the Annemount property from going over to the Benvarden branch of the Montgomery family. The deed was prepared accordingly, without any communication to the old man or express authority from him, and was brought to him when he lay upon his death-bed. A very little time, it may not have been more than half an hour, was occupied in reading and explaining the instrument. His want of recollection was indicated by a statement that he thought he had signed such a paper before; and, after the execution, on the evening of it, a witness, whose faithworthiness no one has impeached, was asked by him to tell, “what all the business was about, as he did not understand it.”
These were circumstances, my Lords, suggesting doubt and warranting investigation—the physical and mental condition of the man, the want of instructions for the preparation of the deed, the rapidity with which the signature to it was obtained, and the evidence of subsequent forgetfulness as to its nature and effect. I agree with the Lord Chancellor of Ireland, that, “if there had not been inquiry, the transaction must always have been suspected.”
Nevertheless, after fully considering the arguments at your lordship’s bar, and the able judgments of the courts below, I have come to the conclusion that, in the special circumstances with which we have to deal, the appeal should be dismissed. And I have formed that opinion with a full sense of the danger of maintaining a deathbed disposition of property, made without deliberate and clear directions as to the framing of the instrument by which it is effected.
If the deed in question here had involved the complicated considerations of a family arrangement, or even, in the absence of these, if it had been hastily executed, without previous reflection on the purpose which it was designed to accomplish, I should have had difficulty in saying that the evidence of the protector’s competency would have been sufficient to give it validity.
But it is plain that the degree of mental capacity required for the effectual execution of such an instrument must vary according to the nature of it. It may involve a simple affirmative or negative in a matter easy of comprehension, or an exertion of thought and memory taxing largely the intellectual faculties; and it may have to do with an object with which the mind has been long familiar, or with a proposal made for the first time, and requiring laborious effort to ascertain its nature and the consequences of its adoption. In each of these varying cases the question must be, whether the power is equal to the exigency? It need not be the same in all of them, and if the understanding is clear enough and the will strong enough to reach an intelligent and independent decision, that decision should be legally confirmed, although, under other conditions, there might be a want of competency to make it binding. If the deed be really the deed of the man who affixes his signature—affirming his own true intention—and not the result of suggestion or pressure from without, we should err in condemning it, as gravely as we should err in upholding it if it were not his deed but the deed of another, which he had been got improperly to sign.
Now, applying these considerations, I observe, in the first place, that the act done by the protector was of a simple nature—however serious its results—and easily understood. He was not settling his estates. He was not making a distribution of his assets. His position was responsible as his proceeding was important: but he had only to determine, as between two branches of his family, to which of them the property should devolve.
Then, was he dealing with a matter thrust upon his attention for the first time, or long the subject of his consideration, and with reference to which he had had the opportunity of forming a judgment, before he was overtaken by his fatal illness? I cannot doubt, if Mr. Wallace is to be believed, that he had repeatedly, and at various distances of time, discussed the subject, and, more or less, indicated the intention which was effected by the deed. Mr. Wallace tells us that, in 1868, when be took instructions for Thomas Montgomery’s will, he explained fully the position of the Annemount property, and the necessity of barring the entail, if it was not to go to the Benvarden branch. Alexander Montgomery was then alive and had an interest in Annemount, and would not join for that purpose; but Thomas said that he was prepared to do anything for his nephew in the way of securing the property to him. He spoke of his father’s will as a “strange” one, and showed no disinclination to defeat its provisions. In 1874, when Alexander was in a delicate state of health, he showed that he was thinking of the matter, by asking Mr. Wallace if the moiety of the estate could be barred by a will? He was told it could not. Again, in 1874, after Alexander’s death, Mr. Wallace informed him that he was now in a position to secure the moiety, and that, for that purpose, he and John should join together in a deed. John had then gone upon the turf, and was mortgaging or had mortgaged his property, and Thomas referred disapprovingly to the life he was leading, but still expressed much affection for him.
On that occasion Mr. Wallace referred to what had passed in 1868, and so recalled his client’s recollection to the specific information then clearly given as to the effect of barring the entail. In September, 1874, they again conversed upon the subject. Thomas Montgomery inquired as to the barring of the entail, so far as the moiety was concerned, by his nephew, and proved his knowledge of the effect of it by saying that he thought it had been done already for the purpose of raising money on a mortgage. And finally, in October, 1874, at a meeting between Thomas and John Montgomery and others, Thomas and John, in the presence of Mr. Wallace, talked of the moiety of Annemount, and of their power of securing it. Thomas was pleased that John had not exercised his power with reference to the moiety, referred to his extravagance, and said “he would let it stand over.” *5
Now, it is quite true, as the Vice-Chancellor has observed, that in these interviews Thomas Montgomery does not appear expressly to have declared his intention of barring the entail; but Mr. Wallace’s account of them seems to me clearly to establish that his mind was continuously, and for a length of time, directed to the matter, and that he was fully informed as to the authority he possessed, the legal mode of enforcing it, and the effects which the enforcement of it would produce.
Mr. Wallace needs no corroboration; but I may note that whilst Mr. M’Neill, with an uncertainty which makes his testimony of little value, says he thinks he heard Thomas Montgomery say, “I will do all I can for my nephew Thomas,” the defendant more positively speaks of a conversation with him in 1874, after he had discussed his legal rights and relations with Mr. Wallace: “Some time,” he says, “after my uncle Alexander’s death, June, 1874, my uncle Tom spoke to me about Captain John. It was during that summer. I can’t fix the time. It was at Birchhill. He said he heard that people had been talking about John, and saying that his uncles were going to cut him off on account of the life he was leading, ‘But,’ he said, ‘they needn’t say that, because he’ll have the whole of Mr. Alick’s property and mine, that we got from your grandfather, at my death.’”
Mr. Thompson, an intimate of Thomas Montgomery and a witness beyond impeachment, states a conversation with him, thus: “After Alexander’s death one day in the drawing-room we were talking about lending my money, and he said that John wanted to borrow £15,000 of Victoria’s money. I said ‘It is a pity that John is in that state, but it is better that he should borrow that money than go to strangers.’ I then said ‘that will take a good slice out of John’s income.’ He said, ‘John is better off now than he was, for he has got one half of Alexander’s property and will get the other half at my death.’ That was soon after Alexander’s death.”
And Mr. Wellwood deposes that, before he signed the deed, and after it had been read to him, Thomas Montgomery said: “I would have executed such a deed long since, but I was afraid Captain John would raise money on it.”
Not exaggerating the importance of these statements, but taking them in connexion with the various conversations which Mr. Wallace details, it appears to me reasonable to say that, long before the 24th of April 1876, Thomas Montgomery, when in possession of all his faculties, had well ascertained the nature of his powers as protector; had had it in contemplation to use them for the benefit of his nephew, and would, probably, have so used them, but for the risk of supplying to him the means of further indulgence in his wastefulness.
That risk was gone, and Thomas Montgomery knew it was gone, when John Ferguson Montgomery lay on his death-bed and executed his will and deed for the benefit of his brother; and if the protector had been induced to validate them before the 24th of April, and had done so on the perusal of the instrument which Mr. Wellwood prepared, neither the want of express instructions for it nor anything else would have enabled anyone to call the act in question. It is conceded on all hands that, at least until the 22nd of April, 1876, his competency was beyond dispute.
Then, my lords, having regard to the two considerations to which I have adverted, the simplicity of the arrangement, which merely preferred one person to another, and the antecedent knowledge which prepared and qualified the protector to enter upon it, I do not find, in the condition and conduct of Thomas Montgomery on the 24th of April sufficient reason for holding him incapable of giving it effect. “It would be impossible,” in the words of the Vice-Chancellor, “to contend that up to the 22nd April, 1876, he was not capable of disposing of property, either by will or deed.” Was he so on the 24th?
If the evidence of Mr. Wellwood is reliable, I think we must answer in the affirmative. That evidence has been assailed, and the learned Vice-Chancellor has expressed his distrust of it; but not because of anything apparent on the vivâ voce examination, of which we cannot perfectly judge from the papers before us. His lordship has not spoken of the witness’s demeanour as suggesting doubt of his veracity or his accuracy; and I do not feel justified by his conduct, throughout the transaction, in withholding full credence from his statements. He has a confidential and responsible position in the office of Mr. Wallace; he was not impeached by the cross-examining counsel; and no shadow of imputation is cast upon him save for the part he took in the preparation and execution of the deed. But if, representing the solicitor of Thomas Montgomery, he had learned from Mr. Wallace all that has been disclosed to us as to the communications made to and by his client, and found that the necessity of action was great, and that delay in effectuating a purpose already formed might defeat it altogether, I do not see that he was guilty of such impropriety in hastening to carry out what, on that supposition, he must have believed to be the deliberate wish of the protector, as ought to discredit his testimony in the least degree. The position was difficult; the exigency was pressing; and, in the course adopted by Mr. Wellwood, I discover nothing which should make us doubt his perfect honesty, or impute to him a bias inducing misrepresentation or improper colouring of facts. If not, as I have said, his evidence seems to me decisive.
After preparing the deed and getting it executed by John Ferguson, he came out to Birchhill with the defendant Thomas, who, after a conversation with Dr. Spearing, to which I shall immediately advert, went into his uncle’s appartment and shortly explained the object of his coming and the necessity for the execution of a disentailing deed, telling him, according to the truth:— “If you don’t execute this your half will go to the Benvardens at your death.” The object of the execution could not have been more tersely and unmistakably communicated. The old man asked, “Did I not sign that deed already?” The defendant answered “No,” and Thomas Montgomery said, “I thought I had signed it.”
I remark, in passing, that this part of the conversation, which has been relied upon, for the plaintiff, to show the weakness of the protector’s capacity, seems to me open to an observation on the other side, as indicating an antecedent familiarity with the purpose of the instrument, and an approval of it, such as the evidence of Mr. Wallace might have led us to expect.
Mr. Wellwood was then introduced; and told Thomas Montgomery that he had brought a disentailing deed for execution, with the object of sending the moiety of the Annemount estate to Captain John, who had already signed it. Mr. Montgomery said he was aware of the illness of John, and “thought he had executed such a deed before.” Mr. Wellwood said that he had not done so, but that, perhaps, his will, in which he had given Birchhill and his other property to his nephew Thomas, was running in his head. Mr. Montgomery replied, as I have stated already, that he would have executed such a deed long since but that he was afraid Captain John would raise money upon it. Mr. Wellwood told him that John, who was dying, was not likely to raise money, and that he had made his will, leaving his property to his brother Thomas, the defendant, with the effect, on the execution of the deed, of sending Annemount to Thomas immediately on the death of John. Mr. Montgomery said, as he had said before, that he wished to give all he could to Thomas. Wellwood swears he read every word of the deed distinctly, and Mr. Montgomery proved he understood it by interrupting the reading—after the words “granted and confirmed”—and asking would he not himself have the property until his death? And he expressed his satisfaction when he found, in a further passage, that the conveyance was made, subject to his life interest. Surely, if that statement be true, it goes far to defeat the contention of the plaintiff.
Mr. Thompson and Dr. Spearing then came in, and the former said to Mr. Montgomery, “I suppose you know *6 what this deed is about, for I do not;” to which he replied, “Yes, Mr. Wellwood has read it to me.”
My lords, the period of time to which our attention should be particularly directed is, that which elapsed between the arrival of the defendant and Mr. Wellwood and the affixing of the signature. It was short, but if, throughout it, Thomas Montgomery had faculties of will and judgment enabling him to understand the act he was asked to do and to determine, with full freedom as to the doing of it, the deed should be sustained, although, before and after, his mind may have been wandering and his power of volition imperfect. We ought to cousider his previous and subsequent condition, in so far as it may assist us to ascertain what it was during that critical period; but if we are satisfied that he had then capacity, mental and moral, to perform such an act, it was his act and we are bound to give effect to it.
As I have said, if Mr. Wellwood’s testimony is to be accepted it seems to me to conclude the controversy. But it is supported strongly by other evidence in the case. I would not rely much upon mere expressions of opinion as to Thomas Montgomery’s state, on the one side or the other; and if we had only the view of the Rev. John Holmes, who postponed the administration of the Communion and states a strong impression that he could not understand a legal document, or of Mr. Samuel Thompson, who thinks that he had abundant capacity for the purpose, we might set the one against the other and find it difficult to place much reliance upon either. There is something impressive in the indignant feeling with which Mr. Thompson answers the question—“When you saw him sign that deed what is your belief as to his mental competency?” He replies—“I am perfectly confident that he understood all about it, and if I had not been perfectly confident I should not have been a party in allowing him, my own friend, to do anything that I did not think he fully understood.” He had been the intimate associate—the old familiar friend—of the dying man, and the emotion displayed in those words was natural and honourable to him. Still, I do not think that his judgment alone, under the circumstances, would be conclusive in favour of the defendant.
But the conduct of Dr. Spearing and his admitted words are, in my mind, of much greater importance. He was the trusted medical adviser of Mr. Montgomery. He had been in hourly intercourse with him from the beginning of his illness. He had necessarily observed the physical and mental decadence to which that illness led; and yet, when the defendant came with Mr. Wellwood and told him there was a deed to be executed, and properly said—“I want to know if he is in a fit state to be asked to do so?” Dr. Spearing answered “O yes, he’s quite clear now.” And when Wellwood proceeded to have the deed executed, Dr. Spearing was asked to be an attesting witness, and not only became so, without hesitation, but assisted in the arrangements for the solemn act. He propped up the patient, got his spectacles and helped him to adjust them, put the pen in his hand, and held it when Wellwood pointed to the place of signature; and, whilst the preparations were in progress, said “of his own accord,” according to Mr. Thompson’s statement, “He’s perfectly clear.” And in the evening, many hours after the deed was executed, he observed to the defendant—“It was well you got him to sign that deed at the time you did, for he would not be fit to do it now.” With respect to the last observation, Dr. Spearing contradicts the statement of the defendant, but as to the others, and as to his conduct in the matter, I shall content myself by citing one passage from his own evidence: “The defendant, T. Montgomery, called me out of the room into the lobby and asked me could his uncle sign that deed? I said, if he understood what it was about before, he could sign it. ‘Fortunately for you,’ I said, ‘for this purpose he seems to have a lucid interval. How long it will last I cannot say. I could not answer for him in half an hour.’”
When Dr. Spearing became an attesting witness to the deed he pledged his belief, in the most emphatic manner, as to the fullest competency of the man whom he helped to sign it. He was for years the friend and physician of the family. He was invited to make an attestation of the most serious kind, which involved important consequences, and which he was in no way bound to make, and ought not to have made, if he had the slightest doubt as to the propriety of the transaction he voluntarily affirmed. We must give him credit for knowledge of his duty and honest purpose to perform it, and assume that, at the time of the execution of the instrument, he believed his patient competent to execute it validly.
There seems to have been a suggestion in the course of the case of some sort of impropriety, in the request to Dr. Spearing to become a witness when his attestation was superfluous, as the deed was suficiently attested without his signature; but, it may surely be more reasonably said that that request, made to such a person under such circumstances, implied full confidence, in those who made it, that they were doing no wrong, and a thorough assurance as to the capacity of Mr. Montgomery. If it had been otherwise, would those who made such a request have ventured to make it of the family physician?
Dr. Spearing’s evidence has been relied on as the mainstay of the plaintiff’s case; but it seems to me, in connexion with his attestation, rather to sustain the case of the defendant. He explains his statements and his conduct by saying, that he thought Thomas Montgomery might sign the deed, “if he understood what it was about before.” I have endeavoured to show your lordships good ground for believing that he did so understand its subject and purpose, and that his previous understanding should give effect to that which otherwise might not be sustainable. I see no reason for thinking that Dr. Spearing has wilfully misrepresented the facts. He seems to me to have regarded them from a wrong standpoint—to have judged of them partially, and reached a conclusion which, when they are fully investigated, his own words and acts completely falsify. He formed his opinion as to Mr. Montgomery’s incapacity, without reference to, or seeming knowledge of, the communications which had passed between Mr. Wallace and his client—explaining clearly the subject matter of the deed and its operation—and the indications of previous intention which had been given by Mr. Montgomery. For this reason, even on his own view, that opinion cannot be of value, whilst, on the other hand, his admissions as to the existence of a “lucid interval” for a time long enough to complete the explanation and execution of the deed, and as to the “clearness” of his patient at the moment of the signature, are very persuasive in favour of the defendant.
They go far to neutralise the testimony of the Rev. Mr. Holmes, and the more important testimony of Mrs. Smyly, on which the plaintiff’s counsel strongly and properly relied. I have already observed on that of Mr. Holmes. It points to occurrences previous and subsequent to the execution. And Mrs. Smyly did not arrive at Birchhill until—we do not know how long—after the deed had been signed. If, as I believe, there was a lucid interval in which the mind of Mr. Montgomery was clear—of which Mr. Holmes and Mrs. Smyly confessedly knew nothing—and during which Mr. Montgomery, weak as he was and wandering as he was at other times, had sufficient capacity of judgment and decision to do an act which he had contemplated and considered, and carry out an intention which he had expressed, in the fulness of his strength—it seems to me impossible, upon the evidence of those witnesses, or any other evidence before us, to invalidate a deed signed by him whilst he was “clear” in such a “lucid interval.”
On the whole, after giving my best attention to the case in all its details—as stated in the pleadings and as presented at the Bar—I am of opinion that the judgment of the Court of Appeal should be affirmed and the appeal dismissed with costs. *7
Lord Blackburn.
My Lords,—This is an appeal against a judgment of the Court of Appeal in Ireland by which the Judges of that Court unanimously reversed the decision of the Vice-Chancellor. It is not necessary to state the provisions of the will under which the estate of Annemont was settled, as these must be fresh in the recollection of your lordships.
It appears that Thomas Montgomery, as protector of the settlement, gave his consent to a disposition by John Ferguson Montgomery, his nephew, the tenant in tail, converting the estate tail into an estate in fee. He did this on the 24th April, 1876, by executing the deed by which the tenant in tail had on the same day made the disposition, which is one of the ways by which, under the 3 & 4 W. 4, c. 74, s. 42, the protector can give his consent. His right to give, or to refuse to give such consent was absolute and uncontrollable. He was in his 80th year, and had recently shown some symptoms of failure of memory; but the Vice-Chancellor and all the Judges of the Court of Appeal agree that up to and on the morning of Saturday the 22nd April he was perfectly competent to understand and transact any business. And I believe all the noble and learned lords who heard the argument agree in thinking that this was the fact. On that morning he was attacked by the illness of which he died on the 5th of May. It commenced by diarrhœa, which produced extreme weakness of body, and I think it is established that this weakness of body produced wandering of mind, so that on Sunday the 23rd April he was not in a state to do anything. But on that evening the diarrhœa was checked, and on Monday the 24th April he was, though still in a state of extreme bodily weakness, somewhat better. It was in the afternoon of that day that he executed the deed, and the question in the cause is whether he was then of such a capacity as to be able to understand, and did understand, what he was doing. I do not think any precise definition can be given as to what is sufficient capacity. It must in my opinion depend greatly upon what the nature of the thing was which the person executing the deed was called upon to consider. In the present case that was “Shall I exercise the power which the law gives me to consent to the disentailing this property, which will alter the mode in which my late father 57 years ago had provided that, in the event of my dying without children, the property should go?” If the matter was brought to his mind then for the first time it would have required a very considerable and prolonged effort of mind to apprehend all the circumstances, and I should come to the conclusion on the evidence in this case that he was not of capacity to make that effort of mind. I think the attempt to do so would probably in his weak state have killed him, and would almost certainly have brought on wandering of mind. But if he had, when in full possession of his faculties, considered and understood the subject and made up his mind as to what it would be proper to do, it would require but a comparatively slight effort of mind to recall to his recollection in his weak state what he had previously known, and to understand that what he was now going to do was what he had, when in full possession of his faculties, meant to do. The case, therefore, involves two questions, both of fact, on the evidence:—1st, what had the old man understood and made up his mind to when in possession of his usual faculties? 2nd, was his capacity when he executed the deed such that he could recall and apply what he had previously known and apply it to the existing circumstances?
I have already said that I think these questions of fact only. It might have been enough to say that, after hearing and considering the arguments of counsel at the Bar, and reading and considering all the judgments below, I came to the same conclusion as the Judges of Appeal. I have, however, for the satisfaction of the parties and out of respect to the Vice-Chancellor, from whose opinion I dissent, thought it better to state the principal reasons which lead me to this conclusion, which are as follow:—
The most important evidence on the first of these questions is that of Mr. Wallace, who had for many years been his confidential solicitor. It leaves no doubt on my mind that Thomas Montgomery, the protector, had at various times between 1868 and 1875 repeatedly discussed the question with him in such a way as to show he perfectly understood his father’s will, and the power which he had to consent or to refuse to consent to a disentailing deed, and the consequences of his so doing. And there is evidence of Mr. Samuel Thompson, that some time after the 8th April, 1876, when the accident to his nephew John Ferguson happened, the protector Thomas said “I wonder if John has cut off the entail,” which seems to me to show that he then remembered the effect of his father’s will so far at least as regarded John’s power to disentail that moiety of Annemont of which he was tenant in tail, and so to go some way towards showing that he had not forgotten his own power to consent or refuse to consent to disentail the rest.
Mr. Wallace also gives evidence that in 1868, when Alexander, then protector of the settlement of both moieties of Annemont, was still alive, Thomas the protector told him that Alexander had refused to disturb his father’s will, that he thought it a strange will, and that he would, if he had the power, secure Annemont to John Ferguson. If this had been all it would have been open to the remark that it was a loose expression, when he had no power to act, and that Mr. Wallace might have an inaccurate recollection of what was said, and, what I think would be a more weighty observation, that Thomas might, in the eight years which elapsed, have forgotten it or changed his mind. But this was not all. John Ferguson unfortunately took to racing, an expensive pursuit, and in 1873 he found it necessary to raise about £15,000. He made no secret of this, and applied to his uncles, three of whom were still alive, who agreed to advance the money on mortgage from family funds. Before this could be completed Alexander the uncle, who was to have advanced part of the money, died in June, 1874, and consequently a fresh arrangement had to be made, and the money was advanced on the 30th of October, 1874, by John, Thomas, and a sister who lived with Thomas, Miss Victoria Montgomery.
During the time when this arrangement was pending, and after it, Mr. Wallace was preparing Thomas’ will, and naturally would have to discuss with him all about his property, and about the advance to John Ferguson, and the cause which rendered such an advance necessary.
The first important conversation was in 1874, before Alexander’s death, but when he was ill. Thomas Montgomery then asked if he could by will bar the entail of the moiety of Annemount and secure it to John Ferguson. This looks as if at that time he had it in his mind that, if he could by a revocable instrument (not to come into operation till his death, and then only if he survived Alexander and saw no cause to revoke it) give his consent to the disentailing, he would, or at least might, do so. He was told, of course, that he could not do so. On the 24th June, 1874, after Alexander’s death, Thomas, the protector, came to Mr. Wallace’s office and had a long conference. Mr. Wallace says that he reminded him that, Alexander now being dead, he, Thomas, had power to consent to disentail the moiety of Annemount, and reminded him of what had passed in 1868. It was so clearly, if not absolutely, the duty of Mr. Wallace as Thomas’ confidential attorney, at least natural, that he should remind him of this, that I cannot doubt he did so. The account which Mr. Wallace gives of what took place then and in September, 1874, and more especially on the 30th October, 1874, when the family, including John Ferguson, met at his office for the purpose of executing the mortgages under which the £15,000 was raised, is such as to show that Thomas did not say he would give his *8 consent, which he now knew would be irrevocable, but left the impression on Mr. Wallace’s mind, which probably Thomas wished to impress on John Ferguson’s mind, that he would have done so but for the life his nephew was leading; and that if John Ferguson went on soberly he would probably do so. In 1875, the last time when Mr. Wallace spoke to him on the subject, he said he would let the thing lie over for the present. It was not a prudent thing for a man 79 years of age to postpone indefinitely, the making of a determination as to what he would do, but it is not at all an improbable thing for a man to do. He certainly left on Mr. Wallace’s mind the impression that he was favourably inclined to give the estate to John Ferguson, and there is the evidence of Mr. Thompson, and of the defendant, as to what Thomas said to them in 1874, which to some extent, though not much, tends to show that he was right in that impression.
This is not so clearly made out to my mind as that Thomas thoroughly understood the will and his powers under it, but I should believe it if it stood on this evidence alone.
But the strongest piece of evidence on this is that of Mr. Wellwood. He says that when he was explaining the deed to Thomas, just before he executed it, Thomas asked if he had not executed such a consent before. He told him no, that probably he was thinking of the will he executed in 1874. Thomas said he was right. “I would have executed such a deed long since but I was afraid Captain John would raise money on it.” This, if believed, shows not only that Thomas really had the intention which Mr. Wallace thought he had, but that he did, just before executing the deed, recollect that such had been his intention. The Vice-Chancellor did not believe this; and it was strongly argued that, as the Vice-Chancellor saw the witness and heard his oral evidence, his opinion ought to be followed rather than that formed by the judges of the Court of Appeal or your lordships, who can only read the evidence. I quite agree that wherever the reasons for forming an opinion as to the effect of evidence depend upon matters which in whole or in part cannot be put on paper, the opinion of the judge who heard the cause ought to have great weight, and ought not to be overruled without much consideration. But in the present case the Vice-Chancellor’s reasons for discrediting Wellwood’s evidence do not depend on anything of this kind. He appears to have taken a strong view that there was something wrong in preparing a disentailing deed and taking it to the protector of the settlement for his consent without any instructions from him, and that he ought, therefore, not only to look on the evidence of Thomas, the defendant, and of Wellwood with caution, but he finally winds up by saying, that he “cannot safely rely upon his uncorroborated evidence.” This is a matter on which the Judges of Appeal and your lordships have as good means of forming a judgment as the judge before whom the evidence was given.
In the mouth of April, 1876, things happened which no one would have anticipated.
On the 8th April, 1876, John Ferguson was thrown from his horse and received an injury to his spine. Eminent surgeons who attended to him gave a decided opinion that he would not recover, and could not live more than three weeks, and they proved right to a day, for he died on the 30th April.
Mr. Wallace saw John Ferguson, and received his instructions to prepare his will, by which he left all his property to his brother Thomas, the defendant, subject to a charge of £15 000 to his younger brother, George, and also to prepare a deed disentailing the moiety of Annemount of which he was tenant in tail in possession. Mr. Wallace had these instruments prepared and left them with Mr. Wellwood, his managing clerk, with directions to see them executed by John Ferguson at any time when he was in a fit state to do so, and having done so he went to attend his business elsewhere, leaving Mr. Wellwood in charge of his office at Belfast.
This will and deed were executed by John Ferguson on the 23rd April, and no one has ever suggested that this was not all correct.
Thomas, the uncle, was at this time in his 80th year; his memory had, as is common with old men, somewhat failed, but he was perfectly capable of executing any deed; and no one, I think, would have then anticipated that he would not continue in this state till after the death of John Ferguson, in which case Thomas, the defendant, would become tenant in tail of the half of Annemount, and would have been able, with the consent of Thomas, the uncle, who was protector of the settlement, to bar the entail, and then would have been the time for him to determine whether he would give or withhold his consent; and this quite sufficiently accounts for Mr. Wallace not having, as legal adviser of John Fergusson and confidential solicitor of Thomas, the protector, then suggested any disentailing deed of the other moiety. But though it was so probable that Thomas, the uncle, would survive John Ferguson long enough to be able to exercise a leisurely judgment on the state of affairs after John Ferguson’s death things turned out otherwise.
As already stated Thomas, the protector, was taken ill on the Saturday, April 22nd, and on the Monday, April 24th, Mr. Thompson, who had seen the doctor that morning, came into Belfast to transact some business at Mr. Wallace’s office. He found Mr. Wellwood there in charge of Mr. Wallace’s office, and told him of Thomas, the protector’s illness. Thomas, the defendant, on the same morning, received a telegram sent him by directions of the doctor, and Wellwood saw the defendant. The defendant had not up to this time known anything about the shifting clause; he had believed that on Thomas the protector’s death the estate of Annemount would come to John Ferguson, if then alive, and if John Ferguson were dead without issue, to him, Thomas. Wellwood knew that this was not the case. Mr. Wellwood was left in charge of Mr. Wallace’s office, and could not consult Mr. Wallace as to what should be done, if at all, at once. It seems to me that what Mr. Wellwood ought to do then very much depended on what, from his previous communications with Mr. Wallace, he thought was Mr. Wallace’s knowledge and duty. If he believed that Thomas, the protector, had told Mr. Wallace that he meant to consent to the disentailing deed, but would not do an irrevocable act yet, he would have been under a mistake, but he would have believed in a state of things which made it his positive duty, as representing the attorney of the protector, to go without delay to the protector with a deed prepared so that he might carry out his intention if he still continued to entertain it and was still competent to do so. If, as is more probable, he had understood from Mr. Wallace what that gentleman now tells us as a witness, there would he no such duty to the protector as I have said, but there would not, as far as I can see, be anything wrong, or even anything from which a delicate-minded gentleman would shrink, in taking the steps which Thomas the defendant and Mr. Wellwood took, to enable the protector to do what they must have supposed he would have done before if the fact had then been as it now was, that John Ferguson not only would not but could not gamble the property away. If, indeed, they had thought that Thomas had, like Alexander, resolved not to disturb his father’s will, and that going with that deed they were going to get by importunity a dying man in a weak state to reverse a decision to which he had come when in health, I think that they would have been doing what a scrupulous man would not do, and though I do not think their evidence should be rejected, it should be received as the evidence of those who did not scruple to do a questionable act and, therefore, might not scruple to colour their evidence. But I can see no ground for *9 casting such an imputation on them. It was open to plaintiff’s council to cross-examine Mr. Wellwood as to what it was that Mr. Wallace had told him, and to cross-examine the defendant as to what Mr. Wellwood had told him as to Thomas the protector’s previous determination, as that would have gone to their credit. They, I think judiciously, refrained from doing so. It was not open to the plaintiffs to ask such questions.
I think that the defendant and Mr. Wellwood went to Birchhill with a wish to find Thomas, the protector, in such a state of mind as to be able to give an intelligent consent to the disentailing deed, and that they would have been sorry if they had found him not so, and so far their evidence as to the state of his mind is that of biassed witnesses; but, I see nothing to justify the conclusion that either would state in evidence any positive fact which they did not believe to be true. When they arrived at Birchhill the defendant asked Dr. Spearing whether his uncle was in a state to understand and execute a deed, and was told he was. Dr. Spearing says, that he qualified this by saying, “if he understood what it was before;” but this is not the evidence of the other witnesses, and, from the cross-examination, I think not only that he did not say so but that he had not in his mind then the distinction, which I think a very just one, between capacity to recall and act upon a judgment formed when in good health, and capacity to form a judgment now for the first time. Then Mr. Thompson went in and saw the old man, and told him he had been at Belfast and seen his nephew John, and that he had seen John sign a deed, and that young Tom and Wellwood had come down for him to sign it too. There was no great opportunity for Mr. Thompson to form an opinion as to the state of his mind, but as far as it went, he thought him competent. Then the defendant came in and was left alone with the old man. He stayed only a few minutes, and, according to his account, said no more than was necessary to bring to his uncle’s mind what the effect of his consent to the disentailing deed would be. The old man asked, Did not I sign that deed already? He said, No. The old man said, I thought I had signed it. The witness said No, and again repeated in substance what the effect of his consent was, and that Mr. Wellwood would explain it. He said, Very well, and then the defendant left the room and sent Wellwood in, and did not return till after the deed was executed. If this was all that passed—and there was no time for much more to pass—there was nothing like importunity or undue influence. Then Wellwood came in, according to his evidence, and the old man again said, “I thought I executed such a deed as this before,” and the witness suggested that probably he was thinking of the will which he executed in 1874. I may remark, though the witness did not, that at the time when he executed that will he had been discussing the propriety of consenting to disentail this property. The old man said he was right, and said, “I would have executed such a deed long since, but I was afraid Captain John would raise money on it.” I have already commented on the importance of this statement, if believed. The witness said he was not likely to raise money now, and that he had made his will, by which he had left all his property to Tom, and that, in fact, his execution of the deed would send the estate at once to the defendant on the Captain’s death. This statement, if it was made to the old man, was quite accurate. The old man said that was his wish, and that he would sign the deed. Then he read the deed to the old man. Hesays, when he came to the words, “Doth hereby grant and confirm unto the said William Nevin Wallace, and his heirs, all, &c.,” the old man stopped him, and asked would he not have the property until his death. The witness says he said “It would not disturb his rights at all, as he would perceive when I went further on. When I came to the words ‘to hold to the said Nevin Wallace and his heirs, subject and without prejudice to the estate for life of the said Thomas Montgomery,’ I read that portion slowly and with emphasis. He appeared to nod his head as if satisfied.” This, if believed, is strong to show that he was intelligently following the deed.
I have already said that I see no reason to think that Mr. Wellwood is capable of downright wilful perjury, and if this did not happen I think he must be guilty of it. Then Mr. Thompson and the doctor, Spearing, were called in. Mr. Thompson, very properly as it seems to me, said, “Well, Mr. Tom, I suppose you know what this deed is about, for I do not.” The old man answered, “Yes, Mr. Wellwood has read it to me.” The Vice-Chancellor seems to think that Mr. Thompson should not have been so easily satified that the old man did understand the deed. I do not think that in general it would be right for an attesting witness to ask questions about the nature of a deed, which was evidently a family affair, and though Mr. Thompson was an intimate friend, I am not surprised that he shrank from what might have been deemed an intrusive question. It is a pity, as things have turned out, that he did not ask a further question, for if the old man had said what, if the defendant’s case is true, he probably would have said, “It is my consent to disentailing Annemount,” this litigation would probably not have taken place. But he was satisfied. Then the old man was helped to sit up in bed and sign the deed, which he did, though extremely weak, and Mr. Thompson, Doctor Spearing, and Mr. Wellwood attested his execution of it. Doctor Spearing, by attesting the deed, did in the strongest way possible express his opinion that the old man was then quite capable of executing a deed of some sort. Afterwards, and after the old man’s death, when he heard that the deed in question was a disentailing deed, he expressed his opinion that the old man was not competent to execute such a deed as that. I am sorry, if it is the case, that anyone should resent this. Dr. Spearing was quite right in stating this, if he thought it the fact, though it exposed him to remarks. I have already expressed my own opinion that the old man was probably not capable of making such a mental effort to understand the deed as would have been required by Dr. Spearing or anyone else who did not previously know anything about it. From the evidence I am convinced that he had, when in health, thoroughly understood his position, and come to the conclusion that he would consent to the disentailing deed if he became satisfied that his nephew would not spend the property on the turf, but would not irrevocably execute such consent till he was so satisfied; and consequently I think that the only effort of mind which was required was to recall that he had come to that conclusion when strong, and that his nephew now being on his death bed there was no danger of his spending it.
I am satisfied that he had capacity enough to understand, and did in fact understand, this, and, consequently, I think that the judgment of the Court of Appeal should be affirmed.