Bennett v Lucas

• Jurisdiction: Ireland
• Judgment Date: 31 July 1929
• Date: 31 July 1929
• Court: Supreme Court (Irish Free State)

Supreme Court.

Bennett v. Lucas.

In the MATTER of the Estate of HENRY DONAT O'BRIEN, Deceased, and in the MATTER of the Estate of TIMOTHY JOHN O'BRIEN, Deceased; GEORGE CECIL, BENNETT and Another

Plaintiffs

and

BENJAMIN KENNEDY LUCAS and Others, Defendants(1)

Settled land - Capital moneys - Beneficiary becoming absolutely entitled in possession - Death of beneficiary without disposing of capital moneys - Whether heir-at-law or personal representative entitled - Settled Land Act, 1882 (45 & 46 Vict. c. 38), sect. 22, sub-sect. 5.

Appeal from part of an order, dated 9th November, 1928, made by Meredith J., upon the hearing of an action commenced by originating summary summons.

The plaintiffs were George Cecil Bennett and Thomas William Westrop Bennett, suing as personal representatives of Timothy John O'Brien, deceased, and of Henry Donat O'Brien, deceased. The defendants were Benjamin Kennedy Lucas, James Bennett,

Anne Sarah O'Brien, Ada Zillah Furnell, Maud Carew, Caroline Lynch, and Georgina Russell. The defendants, Benjamin Kennedy Lucas and James Bennett, were sued as the trustees for the purposes of the Settled Land Acts of the settlement executed on the marriage of Henry Pierce O'Brien with Anne O'Brien, dated the 26th June, 1871. The defendant, Anne Sarah O'Brien, was sued as the widow and beneficiary under the will of the said Timothy John O'Brien. The defendant, Ada Zillah Furnell, was sued as a beneficiary under the said will. The defendant, Maud Carew, was sued as heiress-at-law of the said Timothy John O'Brien and of Henry Donat O'Brien. The defendants, Caroline Lynch and Georgina Russell, were sued as statutory next-of-kin of the said Timothy John O'Brien.

The facts were briefly as follows:—By his will, dated 7th October, 1869, Timothy O'Brien, paternal grandfather of Timothy John O'Brien and Henry Donat O'Brien, referred to above, charged certain lands with the payment to his son, Henry Pierce O'Brien, father of the said Timothy John O'Brien and Henry Donat O'Brien, and his heirs, of a perpetual yearly rentcharge of £200. Timothy O'Brien died on 1st April, 1870, and by an indenture, dated 24th January, 1871, Michael O'Brien, to whom the lands subject to the charge had been devised, confirmed unto the said Henry Pierce O'Brien and his heirs the said perpetual yearly rent-charge. By a post-nuptial settlement, dated 26th June, 1871, the said rent-charge was granted to trustees therein named and their heirs to certain uses during the lives of Henry Pierce O'Brien and Anne O'Brien, his wife, and, after the death of the survivor, to the use of the child or children of the marriage in such shares as Henry Pierce O'Brien should by deed or will appoint, and, in default of appointment, as Anne O'Brien, in case she should survive Henry Pierce O'Brien, should appoint, and in default of appointment, upon trust for all the children of the marriage, share and share alike. There were two children of the marriage, namely, Timothy John O'Brien and Henry Donat O'Brien. Henry Pierce O'Brien died on 24th November, 1878, having by his will devised and bequeathed all his property to the said children in equal shares. Neither Henry Pierce O'Brien nor his wife exercised the power of appointment contained in the settlement of 26th June, 1871. Anne O'Brien died on 15th May, 1924. In the year 1881 Timothy John O'Brien became entitled in fee-simple in possession to the lands charged with the rent-charge. By an indenture, dated 1st July, 1899, he granted one moiety of the rent-charge to trustees upon trust to pay the income to his wife, Anne Sarah O'Brien, if she should survive him and his mother, Anne O'Brien, until the death or second marriage of the said Anne Sarah O'Brien. The lands charged with the rent-charge were sold under the provisions of the Land Purchase Acts, and the rent-charge was redeemed, the redemption price being paid to the defendants, Benjamin Kennedy Lucas and James Bennett, as trustees for the purposes of the Settled Land Acts of the settlement of 26th June, 1871, they having been appointed by order of Wylie J., dated 16th January, 1913. Henry Donat O'Brien died on 12th July, 1924, intestate, leaving Timothy John O'Brien his heir-at-law and sole next-of-kin. On 3rd July, 1928, letters of administration of his personal estate were granted to the plaintiffs. Timothy John O'Brien died on 29th August, 1924, having made his will, dated 28th January, 1914, by which he gave to his trustees all his investments upon certain trusts, but made no residuary bequest. Probate of this will was granted on 9th May, 1925, to the plaintiffs, the executors and trustees therein named.

Meredith J. held that the expression, "my investments," in the will of Timothy John O'Brien did not include the two moieties of the investments which were in the hands of the trustees for the purposes of the Settled Land Acts, and by his order declared that the moiety constituting unadministered estate of Henry Donat O'Brien, deceased, passed to the heir-at-law of the said Henry Donat O'Brien, and that the testator's debts and funeral and testamentary expenses were payable primarily of the said moiety.

The defendant, Anne Sarah O'Brien, appealed to the Supreme Court from so much of the order of Meredith J. as declared that...