Bathurst and Another v Burke and Others

• Jurisdiction: Ireland
• Judgment Date: 01 January 1946
• Date: 01 January 1946
• Court: Supreme Court

Supreme Court.

Bathurst v. Burke.

In the Matter of the Trusts of an Indenture dated the 7th of April

1909

ROBERT C. BATHURST AND ANOTHER, Plaintiffs and KATHERINE M. BURKE AND OTHERS, Defendants (1)

Settlement - Construction - Real and personal property settled on trusts - Income from settled property limited to successive life-estates with remainders over - Settlement giving tenant-for-life power to create jointures - Jointure rent-charge created - Income from settled property diminishing - Income becoming too small to pay jointure rent-charge - Court order directed to trustees - Trustees to have recourse to capital moneys to supply deficit in payments of jointure rent-charge - Capital moneys applied to such payments - Income from settled property subsequently increasing - Income becoming sufficient to provide surplus after payment of jointure rent-charge - Whether surplus must be applied to recoup capital moneys - Rights of tenant-for-life and remainderman.

Summary Summons.

The plaintiffs as trustees brought a summary summons for the determination of certain questions arising in the administration of the trusts of an indenture of resettlement, dated the 7th day of April, 1909.

George F. Battersby, the first tenant-for-life under the indenture of resettlement, under powers contained therein, executed two indentures, dated, respectively the 9th day

of November, 1914, and the 18th day of April, 1916. By these indentures he created a jointure rent-charge of £200 per annum in favour of the defendant, Katherine Mary Burke.

The annual sum on foot of this jointure rent-charge was duly paid until the year 1938. In that year the income arising from the land contained in the resettlement together with the interest on capital moneys in the hands of the trustees became insufficient to pay the jointure rent-charge which fell into arrears.

The existing trustees of the resettlement thereupon brought a summons in the High Court asking for a determination of the questions, inter alia, whether the arrears of the rentcharge should be paid out of the capital moneys in the hands of the trustees and whether the trustees were entitled to make up the deficiencies in the annual payments on the rent-charge by resorting to the capital moneys.

By order, dated the 2nd day of July, 1940, Mr. Justice Gavan Duffy decided that the trustees were entitled, in so far as the income from the property was insufficient to keep down the jointure rent-charge, to make good the deficiency by resorting to the capital moneys in their hands. The trustees accordingly made the necessary payments out of the capital moneys.

In the year 1942, the trustees became aware that the existing tenant-for-life had made lettings of the lands comprised in the resettlement at rents which would bring in an annual sum of £500. The trustees accordingly brought this summons, naming as defendants the tenant-for-life, the remainderman and the owner of the jointure rent-charge, and asking to have determined, inter alia, the following questions:—

If, and so long as, the net profits of the unsold hereditaments settled by the said resettlement are sufficient to pay the annual jointure rent-charge of £200 per annum payable thereout to the defendant, Katherine Mary Burke:—

(a) Is the defendant, John Radcliffe Battersby, bound to pay the plaintiffs the surplus annual income of the said hereditaments after providing for the said jointure rentcharge in recoupment pro tanto of the corpus of the said capital moneys sold and applied by them pursuant to order herein, dated the 2nd day of July, 1940?

(b) Are the plaintiffs as trustees for the purposes of the Settled Land Acts, 1882-90, of the said resettlement bound to apply the income of the capital moneys for the time being in their hands in recoupment of so much of the corpus of the said capital moneys as has been sold and applied pursuant to the said order dated, 2nd day of July, 1940?

The defendant, John Radcliffe Battersby, was sued as the tenant-for-life under the re-settlement...