Bael of Bandon v Moreland

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 18 May 1909
• Court: Chancery Division (Ireland)
• Docket Number: (1908. No. 1025.)
• Date: 18 May 1909

Earl of Bandon

and

Moreland.

Barton, J.

(1908. No. 1025.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1910.

Settlement — Tenant for life — Failure of issue male — Power given to tenant for life, “his heirs or assigns” to select portion of settled lands — Exercise of power by tenant for life — Limitation after estates tail — Shifting use — Severable power — Rule against perpetuities.

Certain lands were, upon the marriage of the plaintiff (then Viscount Bernard), settled upon the plaintiff for life, with remainder to his first and every son successively in tail male. In the event of failure of issue of the plaintiff the settlement contained the following clause: “And, in default of such issue, as to such part of the said hereditaments and premises (excepting the castle demesne and the demesne of Castle Bernard) as the said Viscount Bernard (the plaintiff), his heirs or assigns, shall select, not exceeding the gross annual value of £5000, to the use of the trustees or trustee and their heirs, upon trust to convey such part of the said hereditaments and premises as aforesaid to the said Viscount Bernard, his heirs and assigns, for ever, or as he or they shall direct, discharged from all incumbrances whatsoever. And as to the residue of the said hereditaments and premises, subject to all charges and incumbrances now affecting all the hereditaments hereinbefore expressed to be hereby assured, in full indemnification of the part of the said hereditaments and premises so to be selected by the said Viscount Bernard, his heirs and assigns, as aforesaid,” to the use of the Hon. and Right Rev. C. B. Bernard for life, with remainder to the use of certain persons therein specified, successively for life, with remainder in tail male to the first and other sons of the last tenant for life with remainder over in default of such issue in strict settlement, and with an ultimate remainder to the right heirs of the plaintiff.

There was no issue of the marriage, and the plaintiff executed two deeds by which, in exercise of his power of selection, he purported to select and appoint certain lands of the prescribed value.

Held, that the two deeds were valid exercises of the power of selection, and that the power of selection which was given to “Viscount Bernard, his heirs or assigns,” was divisible, and, in the event which happened, was not void for remoteness.

Miles v. Harford (12 Ch. D. 691) applied.

This originating summons was brought for the determination of certain questions which arose upon the construction of the settlement, dated June 19th, 1876, which was executed upon the marriage of the plaintiff, James Francis Bernard, then Viscount Bernard, and afterwards fourth Earl of Bandon, to the Honourable Georgina Evans Freke. The principal question was, whether a particular limitation in the settlement was void for remoteness. It became necessary to have this question determined in consequence of the sale of the settled estates under the Land Purchase Acts.

The settled estates consisted of fee-simple lands situate in the county of Cork, the rental of which was stated to have been in 1876 upwards of £16,000 a year, and to be at the date of the summons upwards of £13,000 a year. The estates had been in settlement since 1782. They were in 1873, during the lifetime of the third Earl of Bandon, and after the coming of age of the plaintiff, disentailed; and, in exercise of the joint power of appointment which was created by that disentailing deed, the third Earl and the plaintiff (then Viscount Bernard) joined in re-settling the lands by the marriage settlement of June 19th, 1876; and thereby appointed them (after previous limitations which are not material) to the use of the third Earl (since deceased) for life, with remainder to the plaintiff for life, with remainder to the first and other sons of the plaintiff successively in tail male.

The clause in the settlement, with the construction of which the summons was concerned, came immediately after the limitation to the first and other sons of the plaintiff in tail male. It ran as follows:#x2014; “And, in default of such issue, as to such part of the said hereditaments and premises (excepting the Castle demesne and the demesne of Castle Bernard) as the said Viscount Bernard, his heirs or assigns, shall select, not exceeding the gross annual value of £5000, to the use of the trustees or trustee, and their heirs, upon trust to convey such part of the said hereditaments and premises as aforesaid to the said Viscount Bernard, his heirs and assigns, for ever, or as he or they shall direct, discharged from all incumbrances whatsoever. And as to the residue of the said hereditaments and premises, subject to all charges and incumbrances now affecting all the hereditaments hereinbefore expressed to be hereby assured, in full indemnification of the part of the said hereditaments and premises, so to be selected by the said Viscount Bernard, his heirs or assigns, as aforesaid, to the use of the Hon. and Bight Rev. Lord Charles Broderick Bernard, d.d., Lord Bishop of Tuam,” for life, remainder to his eldest son, Percy B. Bernard, for life, remainder to the latter's eldest son, Ronald Bernard, for life, remainder to the first and other sons of Ronald Bernard, in tail male, with limitations in default of male issue of Ronald Bernard, and with ultimate remainder in default of issue male of other stems of the Bernard family, to the use of the right heirs of the plaintiff.

The relevant events, which happened afterwards, were as follows:—The third Earl, and his brother, the Bishop of Tuam, have died. The plaintiff succeeded as fourth Earl of Bandon, and was at the date of the summons in possession of the settled lands as tenant for life. There had not been any issue of his marriage; and Captain Percy Bernard was, at the date of the summons, heir presumptive to the earldom, and, subject to plaintiff's life estate, to the estates tail to plaintiff's sons, and to the right of selection given to plaintiff, his heirs or assigns, was entitled next in remainder to “the residue” of the settled estate. The plaintiff, by two deeds poll, dated respectively the 2nd September, 1895, and the 19th October, 1908, selected certain denominations of the settled lands within the prescribed annual value of £5000. The estates were being sold under the Land Purchase Acts, and the plaintiff asked the Court by this summons whether these deeds were valid acts of selection. It was objected, on behalf of the tenants-in-tail in remainder of the residue of the settled lands, that the deeds of selection were void for remoteness.

Serjeant O'Connor, K.C., and H. Wilson, K.C., for the defendants:—

The power here is given to Lord Bandon, his heirs or assigns and there is nothing to compel Lord Bandon to exercise it. Therefore, the power can be exercised beyond the period allowed by the rule against perpetuities, and is bad; and a mere exercise of the power within proper limits does not validate the power. A power which cannot be exercised outside the proper limits is not rendered bad if in the terms in which it is given the power could be exercised at any time, viz., ordinary powers of sale and exchange which cannot be exercised beyond the determination of the trusts of the settlement. In Grange v. Tiring (1), a power to a settlor, or any of the heirs of his body, to revoke the uses of a settlement, was held to be validly exercised by his daughter, who was his heir. But the question of remoteness does not appear to have been considered, and on this point the case is not considered good law: Sugd. Pow. (8th ed.), p. 152. This is not a case of a power to be exercised with the consent of the person beneficially entitled to the fee. It is an overriding power exercisable without the consent of the...