Alexander v Godley

• Jurisdiction: Ireland
• Judgment Date: 30 January 1857
• Date: 30 January 1857
• Court: Queen's Bench Division (Ireland)

Queen's Bench

ALEXANDER

and

GODLEY.

Cole v. ScottENR 1 Hall & Twells, 477.

Herbert v. Jameson 6 Law Rea., N. S. 92.

Standish v. Murphy 2 Ir. Cj, Rep, 264.

Lifford's caseENR 11 Co. Rep. 46 b.

Herlakenden;s caseENR 4 Coke, 62 a.

Galway v. Baker 7 Cl. & F. 379.

Smith v. SurmanENR 9 B. & C. 561.

Lord Dudley v. Lord WardENR Amb. 113.

Stukeley v. ButlerENR Hob. 173.

Weigall v. BromeENR 6 Sim. 99.

Wilson v. Eden 18 Q. B. 474.

Lee v. RisdenENR 7 Taunt. 188.

Mackintosh v. TrotterENR 3 M. & W. 184.

Rodwell v. PhillipsENR 9 m. & W. 505.

Fisher v. Dixon 12 Cl. & F. 312.

Shuldam v. Smith 6 Dow., P. C. 22.

Hyedon's caseUNK 3 Rep. 7.

Herlakenden's caseUNK 4 Rep. 63 b.

Liford's caseUNK 11 Rep. 50 a.

COMMON LAW REPORTS. 445 H. T. 1857. Queen's Bench ALEXANDER v. GODLEY. Jan. 22, 30. Tars was a special case stated for the opinion of this Court. It A, by his will, dated the 21st stated that the Earl of Mountcashell, by lease, bearing date the of November 1832, reciting 2nd of March 1816, demised to Earl O'Neill the lands of Claggan, that he was seised in fee- simple of cer- for the lives of the said Earl O'Neill, his brother, afterwards tain estates, Viscount O'Neill, and Henry O'Hara and the survivor of them, and also of the reversion in or for the term of thirty-one years, whichever should longest fee in certain continue, subject to the rent and covenants therein. settled estates, and that he That after the execution of said lease, Earl O'Neill planted was desirous of settling and a large number of trees on said lands, and duly registered same, disposing of his unsettled in pursuance of the statutes in that behalf. and other estates, de That Earl O'Neill, being so seised of said lands, and of other vised to trus tees all the extensive estates, and being indebted in divers sums, part of which lands of which hewas seised is still unpaid, on mortgage and judgments affecting the said in fee-simple, freehold estates, of which he died seised, and indebted in divers and also his reversion in simple contract debts, which were all paid during the lifetime of - fee of his set tled estates, Viscount O'Neill, duly made his will, dated the 21st of November and all his estate and in- 1832 ; whereby, after reciting that he was seised in fee-simple of terest in said estates respec the lordships and territories of the Largess and Braid, and manors tively, upon certain trusts of Cashell and Buckna, and that by the will of his father, John therein named; and by a Viscount O'Neill, dated the 12th of March 1796, the said Viscount codicil, re- citin tat he devised to trustees therein named, their heirs and assigns, the had purchased certain free- lordshipo, territories, manors, &c., of 1VIontarnedy and Feevagh, holds, and had converted leaseholds into freeholds, he specifically devised the same, and such as he should thereafter purchase, upon the same trusts. At the time of making this will and codicil, he was seised under a lease of an estate for lives.-Held, that that leasehold interest did not pass to the trustees under the will and codicil, but deÂÂscended upon the heir-at-law of the testator. A, in his lifetime, planted timber trees on said leasehold estate, and duly reÂÂgistered the same, and died without having felled the timber, and was succeeded by B, his heir-at-law, the surviving life in the lease. After the death of B, and within twelve months after his decease, his personal representatives rut the timber, Held, that at Common Law, the timber was part of the inheritance until severed; out that when severed, it became a mere chattel ; and that under the Timber Acts, the tenant not having felled said trees during the existence of the lease, they reÂÂmained part of the inheritance, and descended with the land. 446 COMMON LAW REPORTS. and the manors of Edenduffcarcick and Mallaghgawa, to the use of the said Earl (testator) for his life, remainder to his first and other sons in tail male, remainder to testator's brother for life, remainder to his first and other sons in tail male, remainder to testator's daughters in tail, remainder to the daughters of testator's brother in tail, remainder to Mary Anne O'Neill for life, remainder to her first and other sons in tail male (and divers remainders over), with ultimate remainders to testator's right heirs for ever. That the ultimate remainder or reversion in fee-simple in said settled estates, expectant on the determination of said prior limiÂÂtations, had descended and was then vested in the said Earl O'Neill, and that he was desirous to settle and dispose thereof, and to settle his unsettled and other estates by his will. That the said testator devised to John Godley and John M'Neill and their heirs, subject to the term of 500 years therein limited, all his lordships and territories, of which he was seised in fee-simple, and also the ultimate remainder or reversion in said settled estates, subject to the prior limitations in his father's will, and all his estate and interest in said estates respectively, to the use of testator's first and other sons in tail male, with remainder to the use of his brother John Bruce, afterwards Viscount O'Neill, for life, with remainder, after other limitations which did not take effect, to the Rev. WilÂÂliam Chichester for life, remainder to his first and other sons in tail male, with divers remainders over. That said will contained a power to tenants for life respectively, when in possession, to make leases for three lives or thirty-one years ; a power to tenants for life respectively to charge said estates with a jointure of 1000 per annum, and 15,000 for younger children, if more than two, and if but two, then with 10,000. That as to the trust term of 500 years, his trustees should stand and be possessed of testator's fee-simple estate and his settled estates, when his reversion in fee therein should take effect, for the said term of 500 years, to be computed from his death ; upon trust, to levy and raise such sums as should be sufficient to pay the receiver's fees and the interest due on the several debts, charges and incumbrances affecting the same, and apply the same accordingly ; and upon further trust, until COMMON LAW REPORTS. 447 the said debts, charges and incumbrances were paid off, to levy H. T. 1857. 's Benc and raise out of the rents, issues and profits thereof, an annual Que_- h sum of 3000, by equal half-yearly payments ; and from time to ALEXANDER v. time, as and when a particular debt should accumulate, to pay GODLEY. off any particular debt, then to apply the same in liquidation of the principal sums due on foot thereof, and also in liquidation of such part of the simple contract debts as testator therein directed to be paid out of his real estates, in the event of his personal estate being insufficient for that purpose, and so from time to time, until said debts and charges were paid off; that the simple contract debts were, if possible, to have precedence ; and until said reversion in fee should take effect, the said fund and its accuÂÂmulations should be entirely applied in discharge of the debts affecting his fee-simple estates and of his simple contract debts, and that his trustees' receipts should be valid discharges. That subject to the trusts, the trustees were to allow the rents and profits of said estates to be received by the persons entitled in remainder, subject to said term, and that said term was to cease when the trusts were satisfied ; and in order to protect the trustees, their accounts were to be made annually, and to be settled and signed by the persons beneficially entitled to such estates under the limitations. The will further recited that testator was possessed of certain lands in the county of Antrim, held under the See of Down and Connor, and bequeathed the said lands and all testator's interest therein to his trustees, in trust to pay the head-rent and renewal fines, and to stand...