Blake v Blake

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 15 May 1913
• Court: Chancery Division (Ireland)
• Date: 15 May 1913

Blake

and

Blake.

Barton, J.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1913.

Marriage articles — Tenant in tail — Nature of estate settled — Post-nuptial settlement — Usual clauses in settlement — Hotchpot clause — Cross-remainders — Election.

Held—(a) that the articles settled a voidable estate in fee-simple in all the estates; that as regards the Menlo estate, the effect of the disentailing deed and re-settlement was to capture the fee-simple of the estate for the trusts of the marriage articles, and that the settlement must be disregarded so far as it was inconsistent with the articles.

(b) That a hotchpot clause, and a clause providing for cross-remainders, should, in view of the provisions contained in the articles, be read into the articles.

(c) That the attempt in the settlement to give the portions term priority to the wife's life estate, and to cut down her life estate to a jointure, was void as being inconsistent with the articles.

(d) That the Waterview estate was captured by the articles on the execution of the disentailing deed.

(e) That the Puxley estate was not captured by the articles, the settlor having died without executing a disentailing deed, but that the eldest son who disentailed, if he elected to take under the settlement and articles, must bring in the Puxley estate as if he had disentailed it to the uses of the articles, and must also bring the value of his tenancy in tail in the Menlo estate into hotchpot.

Originating Summons for the determination of questions arising under articles of settlement executed on the marriage of Sir Valentine and Lady Blake, and the settlement executed pursuant thereto.

The facts sufficiently appear by the judgment of Mr. Justice Barton.

Sweetman, for Lady Blake:—

As to Menlo—Where there is a covenant to settle lands, of which the covenantor is tenant in tail, in marriage articles which do not operate as a disentailing deed, then a avoidable estate is created: Coote v. Gordon (1); Fines and Recoveries Act (4 & 5 Wm. 4, c. 92, sect. 36). On the execution of a disentailing deed, even to other uses than those of the articles, the lands are then captured by the trusts of the articles; and the uses to which they are settled in the disentailing deed are void so far as inconsistent with the articles: Carson's Real Property Statutes, 2nd ed., p. 294. The provision in the Menlo settlement of the 3rd September, 1864, purports to take away the widow's life estate, and give her instead a jointure, and to make the charge for younger children raisable

on the death of the husband. These provisions are void as being in derogation of her life estate, and, accordingly, she gets an immediate life estate notwithstanding. As regards Waterview, though the widow has been left it absolutely by the will of Sir V. Blake, I admit that it also on the execution of the disentailing deed became subject to the articles, and therefore she can only claim a life estate therein.

With regard to the Puxley estate, the articles and the Menlo settlement must be read as one, and if Sir Thomas Blake elects to take a share of Waterview under the articles as one of the children of the marriage, and Menlo under the settlement made in pursuance of the articles, he must bring in the Puxley estate as if it had been disentailed and re-settled to the uses of the articles, for the covenant in the articles to settle, notwithstanding the Fines and Recoveries Act, sect. 38, creates an estate in equity though voidable: Coote v. Gordon (1); Mosley v. Ward (2); Honywood v. Forster (3).

With regard to the class to take in remainder after the death of the husband and wife; each child acquired a vested interest at birth, subject to be divested by appointment by the husband: Wilson v. Duguid (4). The remoter issue would only take per stirpes as representing their parents. The widow is entitled to the shares of those children who predeceased the husband intestate and unmarried, since she is his residuary legatee and devisee.

Oulton, K.C., for the children of Florence Annie Castle, a deceased daughter, to whom £500, portion of the £2000 charge, had been appointed:—

The articles provided for all the usual clauses in settlements. A usual clause is to enable a charge to be raised with the consent of the tenant for life. The appointment is with the consent of both Sir V. and Lady Blake, who executed the deed. Therefore the widow's life estate is puisne to the charge.

The class who take are the children and remoter issue of deceased children living at the death of Sir V. Blake, the

appointor: Farwell on Powers, 2nd ed., p. 475. The remoter issue take per stirpes as...