Brenan v Boyne

• Jurisdiction: Ireland
• Judgment Date: 02 July 1864
• Date: 02 July 1864
• Court: Rolls Court (Ireland)

Brenan

and

Boyne.

Rolls.

CHANCERY REPORTS,

BEING A SERIES OF

CASES ARGUED AND DETERMINED

IN THE

HIGH COURT OF CHANCERY,

COURT OF APPEAL IN CHANCERY,

Rolls Court, Landed Estates Court,

AND

COURT OF BANKRUPTCY AND INSOLVENCY.

On the 14th of December 1810, Joseph Tibeaudo, being seised in fee of the lands of Derreen, demised 190 acres of them to Patrick Wyer and his heirs, for the lives of his then Majesty George the Third, the Prince of Wales, and the Duke of York, at the rent of 8s. per acre, with a covenant for perpetual renewal.

In 1813 Patrick Wyer the lessee had two daughters, Ellen and Catherine.

By a settlement, executed in contemplation of the marriage of Patrick Boyne and Ellen Wyer, one of the daughters of Patrick Wyer the lessee, and dated the 31st of May 1813, Patrick Wyer granted to Edward O'Beirne and Cornelius Dowling, and their heirs, 63 acres, 2 roods, 32 perches of the said lands, upon trust to pay an annuity of £100 a-year to Ellen Wyer during Patrick Wyer's life; and it was agreed that, upon the demise of the said Patrick Wyer, the said lands of Derreen, and all other lands of which he should die possessed, should be divided into two equal moieties, and that the trustees should stand possessed of one moiety in trust to permit Ellen Wyer to receive the rents and profits during her life; and after her death, in case there should be issue of the marriage, to pay and apply said full moiety of said estate among such children, share and share alike; and it was further provided that Catherine Wyer was to become entitled to the other moiety if she married with the approbation of her father.

By a deed of lease and release, dated the 1st of January 1816, and being the settlement executed on the marriage of James Brenan and Catherine Wyer, after reciting the contract* entered into

by the parties on the marriage, Patrick Wyer conveyed to Thomas Dowling and John Dunne, and their heirs, part of the said lands of Derreen, consisting of 74 acres, upon trust to pay thereout an annuity or rentcharge of £100 a-year to the said Catherine Wyer during the lifetime of Patrick Wyer; and upon further trust, after the decease of the said Patrick Wyer, that the said lands of Derreen (among others) be divided into two equal moieties, and that the said Thomas Dowling and John Dunne should stand seised of one moiety thereof, in trust to permit the said Catherine Wyer to receive the rents for her life, without the control of her husband; and after the decease of the said Catherine Wyer, in case there should be any issue of the intended marriage, to pay and apply all and singular the said full moiety or one-half of said estate and properties, amongst said children, share and share alike; the yearly rent and profits, and the interest and produce thereof, to be paid to and amongst them until the youngest of said children should attain the age of twenty-one years, and then to divide all and singular the said moiety or one-half of said estate and property, and principal sum or sums of money, equally between and amongst them; and in case the said Catherine should die without issue living at the time of her death, then to hand, pay, and apply all and singular said moiety or one-half of said estate and properties to the said James Brenan and his assigns, during his natural life; and from and after the decease of the said James Brenan, as to all and singular said moiety of the said lands of Derreen, and the rents, issues, and profits, interest and produce thereof, to the use of the said Ellen Boyne, otherwise Wyer, the youngest daughter of the said Patrick, her heirs and assigns; and upon the further trust, intent and purpose, in case the said Catherine Wyer and Ellen Boyne, otherwise Wyer, should die without issue living at the time of their deaths respectively, that the said Thomas Dowling and John Dunne, or the survivor of them, the heirs, executors, administrators or assigns of such survivor, should stand seised and possessed of all and singular the said aforesaid moiety of the lands of Derreen after the decease of the said James Brenan, for the sole exclusive use, behoof and benefit of the said Patrick Wyer, his heirs, executors, administrators or assigns, for ever; and it was covenanted that the heir or heirs of the said Patrick Wyer, or of his said daughters Catherine and Ellen, or of any of them, or of such person or persons who might, by virtue thereof, or at any time thereafter, become and stand seised or possessed either of the whole or any part or portion of the said lands, tenements and premises of Derreen, or any other estates or properties under lease for ever of which the said Patrick Wyer should die seised and possessed of, should not or might not make any lease or leases thereof for a longer term of years or lives than the space of twenty-one years. The settlement contained some further provisions, which it is not necessary to state they are referred to in the judgment (infra p. 196, 197, 198).

Patrick Wyer, the lessee in the lease of the 14th of December 1810, died in 1817 or 1818, leaving his two daughters Ellen Boyne and Catherine Brenan his co-heiresses. On the 3rd of May 1818 Catherine Brenan died, leaving one child Kate Brenan, and her husband James Brenan, surviving her.

On the 15th of May 1819 a deed of partition was executed, whereby the lands were partitioned and divided in equal moieties between Patrick Boyne and Ellen his wife, and Kate Brenan.

Kate Brenan married Thomas Mark Lyster; and by a settlement, executed on her marriage, dated the 24th of February 1843, her moiety of the lands of Derreen was settled on T. M. Lyster for life; remainder to Kate Lyster for life; remainder to the children of the marriage in quasi tail; remainder to Kate Lyster and her heirs.

There was no issue of the marriage of Mr. and Mrs. Lyster, and she died on the 28th of June 1859, leaving her husband T. M. Lyster surviving her, and the petitioner Michael Brenan her heir-at-law.

Thomas Mark Lyster died on the 19th of April 1862, having made a will, by which he purported to devise the moiety of the lands of Derreen to Joseph Wyer Boyne. Patrick Boyne and Ellen Boyne died, leaving the said Joseph Wyer Boyne their eldest son and heir-at-law. On the 16th of December 1843 a renewal of the lands of Derreen, in pursuance of the covenant contained in the lease of the 14th of December 1810, was granted to Patrick Boyne and Thomas Mark Lyster. One of the lives in that renewal was still subsisting.

The petitioner Michael Brenan was the son of James Brenan by a marriage anterior to his marriage with Catherine Wyer, and he claimed the moiety of the lands of Derreen comprised in the settlement of the 1st of January 1816. The prayer of the petition was, that the respondent Joseph Wyer Boyne, as the heir of the surviving lessee in the last renewal of the original lease of 1810, might be declared to hold the portion of the lands thereby demised, which, by the deed of partition, was allotted for the share of Kate Lyster, or other the moiety of Catherine Lyster, in trust for the petitioner and his heirs absolutely; and that he might be ordered to allow the petitioner to receive and enjoy the same, and the rents and profits thereof, or, if received by him, then to pay them over to the petitioner; and consequential relief.

The defences set up by the answering affidavit of Joseph Wyer Boyne were, first, that Kate Lyster was not a purchaser of the lands of Derreen, within the meaning of the 3 & 4 W. 4, c. 106; and that the heirship should be traced, not from her but from Patrick Wyer or his daughter Catherine Brenan; secondly, that Kate Lyster took only an estate for life under the settlement of the 1st of January 1816.

Argument.

The Solicitor-General, Mr. J. T. Ball, and Mr. Byrne, for the petitioner.

Kate Lyster took an absolute interest in a moiety of the lands of Derreen, under the settlement of the 1st of January 1816. No words of inheritance are necessary to pass the absolute interest in an estate pur autre vie, in a deed, if an intention to that effect sufficiently appears in the deed itself: M'Clintock v. Irvine (a), Doe v. Robinson (b); Allen v. Allen (c); Crozier v. Crozier (d); Elliott v. Jekyl (e); Keegan v. Moulds (f); Pickersgill v. Geary...