Betts v Howard

• Jurisdiction: Ireland
• Judgment Date: 21 December 1932
• Date: 21 December 1932
• Court: Supreme Court (Irish Free State)

In re McDonogh's Trusts; Betts v. Howard

In the MATTER of the TRUSTS of the WILLof JOHN McDONOGH, Deceased; LEONARD BOWRING BETTS and WILLIAM PERCY SHORT

Plaintiffs

and

THERESE MARGARET HOWARD and ALFRED JOHN VERNON BETTS,and, by Order, MARCELLA EMILY TUCKER

Defendants.

Supreme Court.

Settled land - Capital moneys - Death of tenant for life - Resulting trust for heir-at-law of settlor - Devolution of moneys on death intestate of settlor's heir-at-law - Whether passing to his personal representative or to his heiresses-at-law - Settled Land Act, 1882, sect. 2, sub-sect. 2; sect. 22,sub-sect. 5.

Under the will of a testator who died in 1886, and in the events that had happened, the trustees of the will held the testator's freehold hereditaments in trust for the testator's son, A. W. McD., for life, and after his decease in trust for his (A. W. McD.'s) son or sons then living. The will contained no trust in the event of there being no such son. A. W. McD. died in 1929, intestate and without having married. During the lifetime of A. W. McD. portion of the lands had been sold under the Land Acts, 1903-1909, and the purchase money had been paid to trustees for the purpose of the Settled Land Acts of the settlement created by the will.

Held by Meredith J., and on appeal his decision was affirmed by the Supreme Court, that on the death of A. W. McD. the purchase money being "capital money arising under the Act" to which sect. 22, sub-sect. 5, of the Settled Land Act, 1882, applied, was held on a resulting trust for the heir-at-law of the testator, namely, A. W. McD. that Bennett v. Lucas,[1929] I. R. 606, established that the devolution on the intestacy of A. W. McD. was one dehors the settlement and therefore a devolution of personalty; that as regards the difficulty arising from the fact that the death of A. W. McD. without issue, the taking effect of the resulting trust, and the devolution of the property on the intestacy of A. W. McD. as heir-at-law of the testator, all took place in the same instant of time, the decision of Palles C.B. in In re Mayan, [1922] 2 I. R. 209, showed that this did not prevent recognition of the logical priority; and accordingly the property passed as personal estate to the personal representative of A. W. McD. and not to his co-heiresses-at-law.

Construction Summons.

The facts, as set out in the affidavit of Leonard Bowring Betts (hereinafter referred to as "the deponent")upon which the summons was grounded, were as follows:—

John Mcdonogh, by his will dated 30th day of August, 1881, appointed John Frederick Henry Betts, Catherine Jane Betts and Anne Emily Mills, trustees. After the bequest of his personal estate the testator devised his several freehold lands and hereditaments therein mentioned, situate in the Counties of Sligo and Mayo, to the said trustees upon trust to stand possessed thereof and of the rents, issues and profits thereof and pay such rents, issues and profits to the testator's sister, Eliza Mcdonogh, during her life, and after her decease to pay out of such rents and profits to each of the testator's children, Anne Emily Mills, John Charles Mcdonogh, Catherine Jane Betts, Eliza Foster, Patrick Mcdonogh, Josephine Stewart McDonogh, Frederick William McDonogh, and Bernard McDonogh, the sum of £100, and after the decease of the said Eliza McDonogh and the payment of the said sums of £100, to hold the said lands and the rent, issues and profits thereof, in trust for the testator's son, Augustus William McDonogh, for his life, and after his decease in trust for his son or sons then living, and the testator appointed the said trustees executors of his will. The said John McDonogh made two codicils to the said will, dated respectively the 20th day of October, 1883, and the 31st day of October, 1883, neither of which affected the devise of the said lands. The said Eliza McDonogh died on the 7th day of May, 1883, and the said John McDonogh died on the 9th day of January, 1886, leaving the said Augustus William McDonogh, his eldest son, him surviving and other issue, viz.:—1, John Charles McDonogh, who died in the lifetime of the said Augustus William McDonogh without having been married; 2, Patrick McDonogh, who died in the lifetime of the said Augustus William McDonogh without having been married; 3, William Frederick...