Bevan v MahonHagan

• Jurisdiction: Ireland
• Judgment Date: 27 February 1893
• Date: 27 February 1893
• Docket Number: (1891. No. 12,532.)
• Court: Chancery Division (Ireland)

Appeal.

Before PORTER, M. R., PALLES, C. B., and FITZ GIBBON and BARRY, L. JJ.

BEVAN

and

MAHON-HAGAN

Tanner v. TebbuttENR 2 Y. & C. C. C. 225.

In re Smith; Keeling v. Smith 44 Ch. Div. 654.

Gath v. BurtonENR 1 Beav. 478.

Walker v. WalkerENR 2 De G. F. & J. 255.

Hollinrake v. LysterENR 1 Russ. 500.

In re Hodges' LegacyELR L. R. 16 Eq. 92.

Powell v. RawleELR L. R. 18 Eq. 243.

v. DunsterELR 34 Ch. D. 742.

Tanner v. TebbuttENR 2 Y. & C. C. C. 225.

In re Smith; Keeling v. SmithELR 44 Ch. D. 654.

Fry v. PorterENR 1 Mod. 300.

Ashley v. EssexELR L. R. 18 Eq. 290.

Gath v. BurtonENR 1 Beav. 478.

Walker v. WalkerENR 2 De G. F. & J. 255.

Davis v. AngelENR 4 De G. F. & J. at p. 527, per Lord Westbury.

Hawkins v. Luscombe 2 Swanst. 375.

Austen v. CollinsUNK 54 L. T. (N. S.) 903.

Luscombe v. YatesENR 5 B. & Ald. 544.

Hawkins v. Luscombe 2 Swanst. 375.

Luscombe v. YatesENR 5 B. & Ald. 544.

Walker v. Walker 2 De. G. F. & J. 255.

Gath v. BurtonENR 1 Beav. 478.

In re SmithELR 44 Ch. D. 654.

Tanner v. TebbuttENR 2 Y. & C. C. C. 225.

Hawkins v. Luscombe 2 Swanst. 375.

Will — Condition precedent that legatee should assume testator's name and arms — Voluntary assumption of surname — License from Crown to quarter the testator's arms — Gift over — Rule against perpeluties — Impossible condition — Descent of right to bear arms — "Heiress."

342 LAW REPORTS (IRELAND). [L. R. I. M. R. dispose of the immediate beneficial enjoyment of it ; whereas if 1893. dealing with the reversionary moiety reserved to him by the WALSH settlement he was not in a position to do so. Still, this is no GREEN. more than a neutral fact, and the words of the will are wide enough to cover a reversionary interest. I hold that the property in question passed under the devise. Solicitor for the plaintiffs : A. St. George. Solicitors for Elizabeth Adelaide Green : White Sr White. Solicitor for George Garrow Green : C. Ambrose. R. W. L. Appeal. - BEVAN v. MAHON-HAGAN (1). 1892. Dec. 13, 14. 1893. Feb. 27. (1891. No. 12,532.) Will-Condition precedent that legatee should assume testator's name and arms -Voluntary assumption of surname-License from Crown to quarter the testator's arms-Gift over-Rule against perpetuities-Impossible condition -Descent of right to bear arms-" Heiress." A testator bequeathed to the son of his daughter A., who should first attain the age of twenty-one years, and should before attaining that age have taken and borne the surname of H., and the arms of the testator, certain articles therein specified ; and in case there should be no son of A. who should attain that age and have previously assumed the said. name and arms, then to the son of the testator's daughter R. who should first attain that age, and before attaining same should have assumed the said name and arms ; and the tesÂtator devised and bequeathed his residuary estate upon trust to convert and invest the same, and to pay the income thereof to his widow for life ; and after her death, in case the eldest son of his daughter A. should then have attained the age of twenty-one years, and should have taken and borne the surname of H. and the arms of the testator, to pay and transfer the said residuary fund, ,1 and the accumulations thereof, to such eldest son ; but if such eldest son should have attained the age of twenty-one years, but should not have taken the said surname and arms, then to the younger sons of A., according to seniority of birth, subject to like conditions ; and in case there should be no son of A. who fulfilled these conditions, then to such son of the testator's daughter R., or the eldest, if more than one, as should attain twenty-one, and should before attain- Appeal. ing that age have taken and borne testator's said surname and arms, with a 1892. gift over, as to the chattels specifically bequeathed, to A.'s daughter who BEVAN should first attain twenty-one ; and as to the residuary estate to all the MA.norrÂdaughters of the testator's daughter A. who should attain the age of HAGAN twenty-one years or marry. A. had five daughters, all of whom attained twenty-one years, and one son, who died before attaining twenty-one years. R. had issue two daughters, who died before attaining twenty-one, and one son, who attained his age of twenty-one years some time after the death of the testator's widow. In an action brought by the daughters of A., claiming the property under the gift over, on the grounds that R.'s son had not assumed the testator's name and arms before attaining twenty-one years, the Vice-Chancellor held that the evidence, satisfied him that the defendant had complied with the conditions so far as taking the testator's name, but that as the deÂfendant had not obtained the Royal License to quarter the testator's arms till after he had attained twenty-one, he had failed to comply with the latter part of the condition, and. that the property vested in the plaintiffs : Held (on appeal), that there was evidence on which the Court might act that the defendant had assumed the name before attaining twenty-one; but that the testator's arms had not been in fact assumed or borne by the defendant before attaining that age, and that therefore he had not complied with the condition. Held, also, that the application to other purposes by the testator of a fund originally intended by him to defray the expense of obtaining the Royal License, did not render the performance of the condition impossible so as to excuse the defendant from complying with it. APPEAL from so much of the judgment in this action of the Right Hon. the Vice-Chancellor as declared the plaintiff, Isabella Mary Bevan, entitled absolutely, to the plate, plated articles, swords, and other articles specifically bequeathed by the will of Sir Robert Hagan, deceased, and the plaintiffs entitled to the residue of the testator's real and personal estate. The terms of the will and codicil of the late Sir Robert Hagan on which the questions argued in the case turned are set out in the report of the case in the Court below, 27 L. R. Ir. 399. The testator died on the 25th April, 1863, and probate of the will and codicil was on the 11th June, 1863, granted to the executors therein named. The testator left him surviving his widow and his two daughters, Anna Maria Bevan and Rosa Elizabeth Hagan. Previous to his death the testator had entered into an agreeÂment for a lease of a plot of ground at Raglan-road, in the county 344 LAW REPORTS (IRELAND). [L. it. I. Appeal. of Dublin, and for the erection of a dwelling-house thereon ; and 1892. in pursuance thereof, by indenture dated the 9th June,-1863, all BEVAN that plot of ground therein particularly described was demised to V. MAHON- the executors and trustees of the testator's will for the term of fifty Etitukx. years. The said executors and trustees completed the erection of the dwelling-house. After payment of the testator's debts, funeral, and testamenÂtary expenses, in order to raise the sum of £6000, which the defendant took under the will, the trustees mortgaged the house for £750. This mortgage was paid off by the trustees out of the rents received from the tenant of the house some years before the defendant came of age. The house represented the entire residuary fund. Anna Maria Bevan, the eldest daughter of the testator, married Dr. Bevan, and died 20th September, 1866. There was issue of the marriage of the said Anna Maria Bevan one son, who died under the age of twenty-one years, and five daughters, the plaintiffs in this action, all of whom attained the age of twenty-one years. In the year 1865 Rosa Elizabeth Hagan married Charles George Mahon, and there was issue of this marriage one son, the defendant, Charles Patrick Mahon, afterwards called MahonÂ. Hagan, and two daughters, both of -whom died before attaining the age of twenty-one years, and without having married. Rosa Elizabeth Mahon died on the 13th November, 1868. Lady Hagan, the widow of the testator, died 21st July, 1870. Charles George Mahon died 6th May, 1882. The defendant was born on the 14th of May, 1867. The plaintiffs alleged that when any of them met him or heard of him he passed under and used his original name of Mahon until after he had attained the age of twenty-one years. Mr. Hartley, one of the professors of the Royal College of Science, deposed that during the latter part of the year 1887, and part of the year 1888, the defendant bad been a student attending the lectures delivered in that college ; that while a student there he had never used or been known in the college by the name of Mahon-Hagan or by any name but Mahon ; that on four occasions, 8th December, 1887 ; 10th February, 1888 ; 14th February, 1888 ; and 13th November, 1888, he had signed his name in the college books as Charles VoL. XXXI.] - CHANCERY DIVISION. 345, Mahon : these were the only occasions on which he was required to sign his name in the said college. The defendant swore an affidavit to the following effect :-" I say that Robert Hall Bevan, my cousin, died in the month of August, 1880, and immediately afterwards his father, Dr. Bevan, intimated to my father, as I have been informed, and believe, the fact of his death, and that in consequence I became entitled in remainder to certain property under the will of Sir Robert Hagan, and that I was to take over and assume the name of Hagan and the arms of Hagan. I accepted and used the name of Hagan, and was known by the name of Mahon-Hagan during my minority. I say that in the winter of 1887 I came to reside with my stepÂmother, widow of my father, at Haddington-road, Dublin, and I was known in Dublin, and introduced by the name of Mahon-Hagan. I say that during my minority no steps were ever taken by the trustees of my grandfather's will, as directed by said will, to procure for me the Royal License to bear and use the name and arms of Hagan ; and I have been informed by Sir Bernard Burke, the Ulster...