Bellew, deceased; O'Reilly v Bellew

• Jurisdiction: Ireland
• Court: Chancery Division (Irish Free State)
• Judgment Date: 30 July 1924
• Docket Number: (1922. No. 537.)
• Date: 30 July 1924

O'Reilly v. Bellew.

In the Matter of the Estate of RICHARD MONTESQUIEU BELLEW, deceased. Between PERCY PHILIP O'REILLY and EDWARD HENRY BELLEW

Plaintiffs

and The Right Honourable GEORGE LEOPOLD BRYAN, BARON BELLEW, and The Right Honourable JENICO EDWARD JOSEPH PRESTON, VISCOUNT GORMANSTON

Defendants.

(1922. No. 537.)

(I. F. S.)

Appeal.

Settled land - Will - Sale or exchange - Shifting use - Validity of condition - Statute of Limitations - Rule against perpetuities - Settled Land Act,1882 (45 & 46 Vict. c. 38), sect. 51.

A testator devised his S. estate upon trusts, and by his will directed that if the person or any of his sons or their issue entitled to the estates limited by the said trusts should "sell or exchange or concur in or consent to the sale or exchange of all or any part or parts of the D. estate, or any part or parts of the B. estate, the trusts of the S. estate should be void and determined, and that the S. estate should then become vested in Viscount Gormanston absolutely.

The tenant for life of the S. estate entered into agreements with the tenants for the sale of that estate, the agreements being dated 1st May, 1908, and on the 1st November, 1908, as tenant for life (under settlement) of the B. estate, entered into agreements with the tenants of that estate for the sale to them of that estate under the Land Purchase Acts. These lands were not vested in the tenants until the year 1921.

On a summons to determine whether, in the events that had happened, the shifting use in the testator's will had taken effect:

Held, by Powell J., that assuming that the shifting use was founded on a valid and enforceable condition, the tenant for life of the S. estate had"consented" to the sale of the B. estate on 1st May, 1908, when the purchase agreements with the tenants of that estate were signed, and that the person entitled on the shifting clause taking effect not having made any claim to the S. estate until more than twelve years after 1st May, 1908, the claim was barred under the Statute of Limitations.

Held by the Court of Appeal (reversing Powell J.), that the Statute of Limitations did not apply, inasmuch as the gift-over did not take effect until the sale under the Land Purchase Acts was completed in 1921 by the signing of the agreements on 1st May, 1908.

Held also, that the condition in the will as to the operation of the shifting clause did not violate the rule against perpetuities, because a sale during the existence of a life estate in S. estate was not void, while a sale not during a life estate would be a sale in defeasance of an estate tail created by the will, and therefore destructible by a disentailing deed.

Held further, that sect. 51 of the Settled Land Act, 1882 (45 & 46 Vict. c. 38), making void any prohibition or limitation against exercise of powers, did not apply, and that Lord Gormanston as residuary legatee and devisee under the will was entitled to the residue of the purchase-money of the S. estate.

Originating Summons.

By his will, dated the 19th July, 1878, Richard Montesquieu Bellew made certain specific and pecuniary bequests, and devised, bequeathed, and appointed under clause 12 all real and chatted real messuages or tenements (except the lands of Barmeath, given to Charles Bertram Bellew) to the trustees appointed by the will upon trust to pay an annuity of £100 to the testator's nephew, Edward Joseph, Lord Bellew, and subject thereto upon trust to pay the rents and profits of said realty to Charles Bertram Bellew for life, and after his demise upon trust for the first and other sons and issue of the said Charles Bertram Bellew; and in default of such issue upon trust for George Bellew, second surviving son of testator's nephew, Edward Joseph, Lord Bellew, and his issue; and in default of such issue in trust for Richard Eustace Bellew for life, with remainders over. The will contained in clause 21 the following declaration:"I direct and declare that if my said nephew, Edward Joseph, Lord Bellew, or any of his sons or of their issue shall sell or exchange or concur in or consent to the sale or exchange of all or any part or parts of the Dunleer estate sold by me to the trustees of the marriage settlement of my said nephew, Edward Joseph, Lord Bellew, or of all or any part or parts of the house or lands of Barmeath and estate adjoining, in the parish of Dysart, then and in either of the said cases and immediately after such sale or exchange, all and every the devises and bequests hereinbefore contained (subject nevertheless and without prejudice to the exercise of any power contained in this my will) shall cease and determine and be utterly void, and from and immediately after such sale or exchange as aforesaid I do hereby give, devise, and appoint and bequeath all my said real and personal estates, subject nevertheless to and charged with the payment of my debts and legacies, unto the said Jenico William Joseph Preston, Viscount Gormanston, for his own absolute benefit." The testator appointed the Hon. James O'Brien and the Right Hon. Jenico William Joseph Preston, Viscount Gormanston, executors and trustees of the will. By codicil dated the 29th December, 1879, the testator, in lieu of the bequest of the house and lands of Barmeath made by his will, bequeathed the said house and lands to his nephew, Lord Bellew, his executors and administrators. The testator died on the 8th January, 1880, and probate of his will and codicil was granted on the 17th March, 1880, to Viscount Gormanston. The Hon. James O'Brien filed his renunciation on the 3rd April, 1880. On the death of his father, Charles Bertram Bellew succeeded to the estates left by the will, and died on the 15th July, 1911, without issue. Charles Bertram Bellew had become Baron Bellew on the 28th July, 1895, and on his death without issue he was succeeded by his brother, George Leopold Bellew, who had previously taken the surname of Bryan.

By marriage settlement dated 7th August, 1883, made on the marriage of Charles Bertram Bellew, the demesne and tenanted lands of the Barmeath estate were settled to uses in favour of Charles Bertram Bellew for life, with remainder in default of issue of Charles Bertram Bellew to George Leopold Bryan (previously Bellew) for his life, with remainders over.

The Dunleer estate was purchased by the trustees of the Dowager Lady Bellew's fortune under a settlement dated 7th February, 1853. Under an appointment dated 31st January, 1881, made pursuant to a power in the settlement, the Dunleer estate became the absolute property of Richard Eustace Bellew, third son of Edward Joseph, Baron Bellew, on the death on 11th May, 1904, of Augusta Mary, Baroness Bellew.

Richard Eustace Bellew being absolutely entitled to the Dunleer estate, entered into agreements with the tenants for sale, under the Land Purchase (Ireland) Acts, of a considerable portion of the estate, the purchase agreements being dated the 1st May, 1908. During the years 1919-21 Richard Eustace Bellew also sold by direct sales certain other portions of the Dunleer estate.

Charles Bertram Bellew, as tenant for life of the Shamrock Hill estates, devised by the will of Richard Montesquieu Bellew, entered into agreements with the tenants for the sale of said estate, the agreements being dated 1st November, 1908. As tenant for life under the settlement of 7th August, 1883, he also entered into similar agreements for the sale of the greater portion of the tenanted lands of the Barmeath estate, the purchase agreements (excepting a few of later date) being dated 1st November, 1908. On the death of Charles Bertram Bellew the proceedings as regards these sales were continued in the name of George Leopold Bryan, Baron Bellew. In the year 1922 these lands were vested in the tenant purchasers, but no vesting order was made as regards the lands of Dunleer.

Jenico William Joseph Preston, Viscount Gormanston, died on the 29th of October, 1907, having by his will (proved on the 27th November, 1907) left his residuary real and personal estate to Jenico Edward Joseph Preston, Viscount Gormanston, one of the defendants.

On the allocation of the purchase-money of the Shamrock Hill estate, the Examiner of Titles raised the question whether the shifting use in the will of Richard Montesquieu Bellew had not taken effect, and notice of the allocation was given to the defendant, Viscount Gormanston.

By agreement it was arranged that the purchase-moneys should be paid to the plaintiffs as trustees for the purposes of the Settled Land Acts, and that a decision should be sought in the Chancery Division.

The following were the questions submitted in the summons:—

1. Whether the shifting use in said will to Jenico William Joseph Preston, Viscount Gormanston, has or has not taken effect?

2. Who is now entitled to the residue of the purchase-money of the Shamrock Hill estate?

The defendant, Viscount Gormanston, appealed (1), and asked for a declaration that on the true construction of the will of Richard Montesquieu Bellew of July 19th, 1878, and in the events which had happened, the executory limitation contained in the said will of the lands thereby demised and known as "the Shamrock Hill estate," had taken effect, and that the appellant was now entitled absolutely to the residue of the purchase-money, with the dividends accrued thereon, of that estate sold under the Land Purchase Acts.

Powell J. :—

This originating summons has been brought to determine the title to the proceeds of the sale of certain lands known as the Shamrock Hill estate, sold by Charles Bertram, Lord Bellew, now deceased, the present owner of which lands is the defendant, George Leopold Bryan, Baron Bellew. On the allocation of the purchase-money the Examiner of Titles raised the question as to whether or not a shifting use in the will of Richard Montesquieu Bellew had taken effect. Notice of the allocation was given to the defendant, Lord Gormanston...