Blake v O'Reilly

• Jurisdiction: Ireland
• Judgment Date: 05 March 1985
• Docket Number: (1893. No. 742.)
• Date: 05 March 1985
• Court: Chancery Division (Ireland)

Blake

and

O'Reilly.

M. R.

(1893. No. 742.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Tenant for life — Leaseholds — Wasting security — Power of trustees to raise charge by sale, or mortgage, or out of rents and profits — Apportionment of burden of charge between tenant for life and remainderman.

A testator devised and bequeathed freehold and leasehold property to trustees for a term of 1000 years, upon trust by mortgage, or sale, or by and out of the rents and profits, or by any other reasonable means, to raise a sum of money charged on the lands, and, subject thereto, upon trust for the testator's eldest son for life, with remainder to his first and other sons in tail. The testator died in 1871, and his eldest son entered into receipt of the rents and profits of the property, and paid the interest on the charge. No steps were taken by the trustees to raise the charge until 1894, when an action was brought by them to administer the testator's estate so far as related to the property subject to the trusts of the term.

Upon the taking of the accounts in Chambers, the remainderman (the infant son of the tenant for life), contended that the leasehold property should have been sold immediately after the death of the testator, and that the tenant for life should account for the rents and profits received by him since the death.

Held, that, although the trustees had a discretion as to the mode of raising the charge, the interests of the remainderman—the leasehold being a wasting security—had been prejudiced by the postponement of the raising of the charge, and that the Court had power to adjust the burden of the charge between the parties, according to their interest in the property, and to make the tenant for life contribute to the amount raised. Form of decree.

Marker v. Kekewich (8 Hare, 291) followed.

Adjourned Surcharge.

This action was brought by Maurice Charles Joseph Blake and Richard O'Reilly against Joseph Richard O'Reilly and his son Joseph James O'Reilly, an infant, to have the trusts of the will of Richard Pierce O'Reilly, deceased (father of the defendant Joseph Richard O'Reilly) carried into execution so far as the same related to the term of 1000 years, thereby limited to the plaintiffs, who were trustees of the said term, and for that purpose to have the real and personal estate of the said deceased so far as might be necessary administered under the direction of the Court. The defendant Joseph Richard O'Reilly, was sued as executor of the said deceased, and as devisee under the said will, and the defendant Joseph James O'Reilly, as devisee under the said will. The material facts of the case were as follows:—

The testator, on the occasion of the marriage, of his daughter, Jeanette O'Reilly, with the plaintiff Maurice Charles Joseph Blake, by indenture dated 19th November, 1863, mortgaged the lands of Grennanstown, in the county of Meath, held by him in fee-simple, to the plaintiff Richard O'Reilly and Charles Joseph Blake, to secure payment of £10,000, by instalments, with interest at £3 10s. per cent. per annum, payable half-yearly, as therein mentioned.

This principal sum of £10,000 and the interest thereon were secured to the said Richard O'Reilly and Charles Joseph Blake as trustees of the settlement executed on the occasion of the said marriage, dated 20th November, 1863, and made between the testator and his daughter, of the first part, the plaintiff, Maurice Charles Joseph Blake, of the second part, Valentine O'Connor Blake, of the third part, and the plaintiff Richard O'Reilly and the said Charles Joseph Blake, of the fourth part, and it was thereby declared, amongst other things, that the said trustees should pay the income of the said principal sum of £10,000 to the plaintiff Maurice Charles Joseph Blake, during his life, and after his decease, if the said Jeanette O'Reilly should then be living, and should not immediately thereupon become entitled to the full jointure of £800 therein mentioned, to pay the said income to the said Jeanette O'Reilly during her life, or until she should become entitled to the said jointure, or should marry again, during the lifetime of any child of the said marriage, and after the decease of the said Maurice Charles Joseph Blake, and the determination of the interest of the said Jeanette O'Reilly in the said income, then, upon trust, for the children of the said marriage (other than the eldest son, becoming entitled to the hereditaments therein mentioned), in manner therein declared.

The testator made his will, dated the 11th October, 1865, and thereby, after reciting, amongst other things, that he was seized in fee-simple of certain lands in the counties of Longford, Westmeath and Meath, subject, as to certain lands in the county of Westmeath, to a mortgage for £6040, and to a jointure of £300 a-year for his wife, and subject, as to the said lands in the county of Meath, to the said mortgage for £10,000 to the said trustees of the said settlement; and reciting that he was seized of certain hereditaments in the city of Dublin, held for lives renewable for ever, or some other estate of freehold, and that he was also entitled to certain messuages in the county of Dublin and city of Dublin respectively, under leases for terms of years, and that he was also possessed of considerable other personal estate—the said testator after bequeathing certain household effects to his wife, and certain medical books and other things to his son Henry Francis O'Reilly, bequeathed to the plaintiffs his house “Sans Souci,” with the grounds adjoining, held under a lease for a term of years, and the plate and furniture therein, in trust for his wife during her life, subject to the rent payable thereout, and after her decease, in trust for his son, the defendant Joseph Richard O'Reilly, his executors, administrators and assigns; and the said testator thereby bequeathed his house and premises, known as 21 Rutland-square, in the city of Dublin, held for lives renewable for ever, and the furniture therein, to the plaintiffs, upon trust for his said son Henry Francis O'Reilly; but if his said son should die under the age of twenty-six years, then the said testator directed that the said last-mentioned house and furniture should be sold by the plaintiffs, and the proceeds thereof should form part of his residuary personal estate; and the said testator thereby directed that the remaining parts of his personal estate not thereinbefore bequeathed, and exclusive of leasehold interests, should be applicable as the primary fund for the payment of his funeral and testamentary expenses and the pecuniary legacies bequeathed by his will, and all debts due by him, whether by specialty or otherwise, not forming incumbrances on any portion of his real estates and leasehold interests, and also of such sum as should be owing by him on foot of the said mortgage of the lands of Grennanstown for £10,000; and the said testator thereby, except as to the said mortgage for £10,000, exempted his general personal estate from the payment of any debts which should form incumbrances upon his real estates and leasehold interests, and declared that all debts so forming incumbrances save as aforesaid should be respectively payable out of the premises respectively charged therewith as the primary fund for that purpose; and the said testator thereby declared that if his personal estate not thereinbefore specifically bequeathed, and not consisting of leasehold interests, should prove insufficient to pay in full such of his debts as were thereinbefore made primarily payable thereout, and also all pecuniary legacies bequeathed by his said will, then the said testator thereby charged the amount of such deficiency upon all his fee-simple, freehold and leasehold interests of which his said son, the defendant Joseph Richard O'Reilly, was thereinafter made first tenant for life in exoneration of any other portion of the testator's fee-simple and freehold estates and leasehold interests and of such portions of his personal estate as were thereby specifically bequeathed; and the said testator, after bequeathing two charitable legacies of £200 and £300 respectively, devised all and singular his lands, townlands, rentcharges, messuages, and hereditaments in the counties of Longford and Westmeath, and in the county and city of Dublin (except the said house in Rutland-square), held by him either in fee or for any estate of freehold, to the intent that his said wife might receive during her life an annuity of £1000; and subject thereto, in the first place, to the further intent that Charles Kenny and Philip O'Reilly, their heirs and assigns, should receive a perpetual annuity of £500, payable as therein, and that they should stand possessed of the said perpetual annuity upon the trusts thereinafter declared concerning the same; and subject thereto to the use of the plaintiffs, their executors, administrators and assigns, for the term of 1000 years from his decease, upon the trusts thereinafter declared concerning the same; and subject to the said term and the trusts thereof, to the use of the defendant Joseph Richard O'Reilly, during his life, and after his decease to the use of his first and other sons successively in tail male, with divers remainders over; and the said testator, after declaring the trusts relating to the said perpetual annuity of £500, devised the said lands of Grrennanstown, with the mansion-house thereon, and other freehold lands in the county of Meath, and subject as therein mentioned to the said mortgage for £10,000, to the use of the said Charles Kenny and Philip O'Reilly for the term of 500 years, upon the trusts thereinafter declared, and subject thereto to the use of his son, the said Henry Francis O'Reilly, for life, with remainder to his issue...