Bradshaw v Bradshaw

• Jurisdiction: Ireland
• Judgment Date: 07 February 1843
• Date: 07 February 1843
• Court: Equity Exchequer (Ireland)

Bradshaw

and

Bradshaw.

Equity Exch.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

Testator seized of the lands of D. under a lease to him and his heirs, pur autre vie, made his will, commencing thus: “As to such estate and worldly substance as I am possessed of or entitled to, I dispose thereof in manner following” He then devised the lands of D., and all his estate and interest therein, to S. and his heirs, upon trust, to apply the rents in payment of debts until the same should be discharged; and after the same should be discharged, to permit his heir at law to take thereout £40 a-year for three years only; and subject thereto to the use of his sons, T. and J., share and share alike, as tenants in common, and not as joint tenants. He also devised other lands for the benefit of his other sons and their families, by apt technical words; and bequeathed the residue of his personal properly to his heir at law. There was not any residuary bequest of the real estate.

Held, that T. and J. took the absolute interest in the lease of the lands of D.

Challenger v. Sheppard, 8 T. R. 697, and Knight v. Selby, 3 M. & G. 92; 3 Scott, N. S. 409, observed upon.

Thomas Bradshaw was, at the time of his decease, seized amongst others, of the lands of Drombane, which he held under a lease made to him, his heirs and assigns, for the term of three lives, at the yearly rent of £1. 8s. per acre. By his will, dated the 16th of September 1810, he devised and bequeathed as follows:—“As to such estate and worldly substance as I am possessed of or entitled unto, I dispose thereof in manner following:—I give and devise unto my eldest son, Robert Bradshaw, his heirs and assigns, all my estate and interest in a dwelling-house and premises in Chatham-street, in the city of Dublin: and whereas it is my wish that my children Robert, George, Thomas, John, Susanna and Mary, should live together in my house at Mount Sion, upon and out of the produce of the house division thereof, until the debt, interest and costs affecting the lands of Ballyvolode shall be paid off by the profit rents thereof and of Drombane and of the rent now payable out of the Hill division of Mount Sion, as now in the hands of James Jeffernan, dairyman, or as the same may be let to better advantage, deducting the head rent of Mount Sion thereout and therefrom; I devise and bequeath the said lands of Mount Sion, Drombane and Ballyvolode, in the county of Limerick, and all my estate and interest therein respectively, unto Peter Smithwick, Esq. of Ballycoe, and his heirs for ever, to and for the several uses and upon the trusts hereinafter mentioned, that is to say—upon trust, as to the said lands of Mount Sion, to call in and dispose of the rents payable out of the said Hill division thereof, half-yearly; and after thereout paying the head rent of the entire lands of Mount Sion, to dispose of the residue in part discharge of the said debts, until the same shall be discharged therewith and out of the profit rent of Drombane and Ballyvalode; and to permit and suffer my son Robert Bradshaw to hold and enjoy the house division of Mount Sion, containing fifty acres or thereabouts, free from head rent, to his own use, and for the support and maintenance of his said brothers and sisters, and for paying them respectively the annual sum of £10 sterling, for their clothing, until the said debts shall be paid off; and in case all or any of my said younger children shall wish to live separate from their said brother Robert, or out of the said house, or be otherwise provided for, then and in that case, to pay unto such younger child or children, who shall so live separate, the annual sum of £25 sterling, each, to be paid by half-yearly payments from the time of such separation, out of the house division of Mount Sion, in lieu of their lodging and maintenance, until the said debt shall be paid; but in case either of my said daughters shall marry without the consent of Peter Smithwick, Esq., of Ballyconru, county Tipperary, and their said brother Robert, their annuity to be reduced to £5 a-year. And after payment of the said debt and charges for clothing and maintenance, the entire of said lands of Mount Sion to go to the sole use and behoof of the said Robert Bradshaw, his heirs and assigns, subject to the rent of twenty-eight shillings per acre, head rent, payable thereout, as containing 115 acres, or thereabouts. And as to the said lands of Drombane, in like manner to dispose of the profit rents thereof in payment of the said debts, until the same shall be discharged; and after the same shall be discharged as aforesaid, to permit and suffer my son Robert to receive and take thereout the sum of £40 sterling a-year, by halfyearly payments, for the term of three years only; and subject thereto to the use of my sons Thomas and John, share and share alike, as tenants in common and not as joint tenants, subject to the head rent of 28s. an acre for every acre therein contained. And as to the said lands of Ballyvolode, in like manner to dispose of the profit rents thereof in payment of the said debts, until the said debts shall be discharged; and after payment thereof, by demise, sale or mortgage thereof or a competent part thereof, to raise and levy a sum of £500 sterling, to and for the use of my daughter Susanna; and a further sum of £500 sterling, to and for the use of my daughter Mary; to be paid and payable to them respectively with legal interest, from the time the said debts shall be paid off, upon the days of their respective marriages, provided they respectively marry with the consent, in writing, of the said Peter Smithwick, and my said son Robert; and in case they or either of them shall marry without such consent, then, she or they so marrying, to have and be entitled to £5 a-year and no more, for clothing, during the life or lives of such daughter so marrying without such consent; and also, in like manner to raise and levy a further sum of £200 sterling, to and for the use of my son Robert, to be paid to him in one year after the said debts shall be discharged; and subject to the said charges to the use and behoof of my son George Bradshaw and his assigns, from and after payment of the said debts, during the term of his natural life; with liberty for him to settle jointure thereon for any wife or wives he may marry, at the rate of £10 sterling per cent. for the fortune or fortunes she or they may bring, not exceeding £2000 sterling, with a power of encumbering said lands for his younger children lawfully begotten, with a sum of £500 sterling for each, or a smaller sum for each, so as not to exceed £2000 sterling; and subject thereto, from and after the decease of my son George, to the use of the eldest son of the said George, lawfully begotten, and his heirs male; and from and after the decease of the eldest son of the said George and his heirs male, to the use of the second, third, fourth and every other son and sons of the said George in tail male, according to seniority of age and priority of birth, and the heirs male of their several bodies; the eldest always to take and be preferred before the youngest; and for default of such issue male, then subject as aforesaid, to the use of my son Robert Bradshaw and his heirs male: with liberty for my son George, or any other person or persons who may become entitled to the said lands under the aforesaid limitations, to demise the same or any part or parts thereof, at the full improved rent, but without fine, for any term or terms not exceeding thirty-one years or three lives in possession and not in reversion, in case the present tenant's lease thereof is not valid.” The testator after making some bequests of horned cattle, &c., and of his furniture and plate, bequeathed all the rest and residue of his personal property to his son Robert; and appointed him and his son George executors of his will, and guardians of the persons and fortunes of his minor children. After the death of the testator, Thomas and John Bradshaw entered in possession of Drombane. Thomas died; and by his will he devised his moiety of the lands to George Cripps Bradshaw, the son of George Bradshaw. John also died, intestate and without issue; and thereupon the plaintiff Robert Bradshaw entered into possession of his moiety of Drombane, claiming to be entitled to it as heir-at-law to the testator. He was also heir-at-law to his brother John Bradshaw; and the defendants alleged that he entered into possession of John's moiety as his heir-at-law.

The bill was filed by Robert...