Brenan v Boyne

• Jurisdiction: Ireland
• Judgment Date: 13 February 1865
• Date: 13 February 1865
• Court: Court of Appeal in Chancery (Ireland)

BRENAN

and

BOYNE.

Ch. Appeal.

Keegan v. Mowlds 8 Ir. Jur., N. S. 172.

Castle v. DoddENR Cro. Jac. 200.

M'Clintock v. Irvine 10 Ir. Chan. Rep.

Williams v. JekylENR 2 Ves. sen. 681.

Crozier v. Crozier 13 Dru. & War. 373.

Doe v. Robinson 8 B. & Cr. 296.

Lamphier v. Drapes 14 Ir. Chan. Rep. 33.

Bayley v. O'Connell 9 Ir. Jur., N. S. 398.

Keats v. HewerUNK 10 Jur. 1040 and 506.

Kerr v. Cassidy 1 Hud. & Br. 224 n.

Barron v Barron 10 Ir. Chan. Rep. 120.

Allen v Allen 2 Dr. & War. 332; S. C., 4 Eq. Rep. 472.

Dawson v. Dawson 13 Ir. Law Rep. 472.

M'Clintock v. Irvine Ubi supra.

Nunn v. Donovan 13 Ir. Chan. Rep. 184.

Lamphier v. Drapes Ubi supra.

Holliday v. OvertonENRENR 14 Beav. 467; 15 Beav. 480.

Hegarty v. NallyIR 13 Ir. Com. Law Rep. 532.

Pickersgill v. GreyENR 30 Beav. 352.

Low v. Burron 3 P. W. 262.

M'Clintock v. Irvine 10 Ir. Chan. Rep. 485.

The Duke of Devonshire v. KintonENR 2 Vern. 719.

Kerr v. Cassidy 1 Hud. & Br. 224, n.

Williams v. JekylENR 2 Ves. sen. 681.

Campbell v. Sandys 1 Sch. & Lef. 281.

Ripley v. Waterworth 7 Ves. 425.

Doe v. RobinsonENR 8 B. & C. 296; S. C., 2 Man. & Ryl. 265.

Crozier v. Crozier 3 Dr. & War. 373.

Lamphier v. Drapes 14 Ir. Chan. Rep. 33.

Nunn v. Donovan 14 Ir. Chan. Rep. 184.

Dawson v. Dawson 13 Ir. Law Rep. 473.

M'Clintock v. Irvine 10 Ir. Chan. Rep. 485.

Barron v. Barron 2 Jones, 226.

Philpotts v. JamesENR 3 Doug. 425.

Bradshaw v. BradshawUNK 5 Ir. Eq. Rep. 310.

Wall v. ByrneENR 2 Jo. & Lat. 8.

Pickering v. GreyENR 30 Beav. 352.

Keats v. HewerUNK 10 Jur. 1040.

CHANCERY REPORTS. 87. 1864. Ch. Appeal. Court of itppriti in Cbaurtrk. Nov. 17. 1865. Jan. 23. BRENAN v. BOYNE. Feb. 13. Tatswas an appeal from an order of the Master of the Rolls. The By a marriage, the settlement, facts of the case will be found supra, vol. 15, p. 189, and in the equitable in. terest in'-Tads judgment of the LORD CHANCELLOR, infra p. 89. held under a lease of lives renewable for was ever con The Solicitor-General and. Mr. John Thomas Ball (with whom veyed to trus- tees, upon trust - was Mr. John A. Byrne), for the appellant. that after the Words of inheritance are unnecessary to pass the entire interest death of A (the settlor) in an estate pur autre vie, in a deed, if language is used which the said lands should be di- indicates a disposition of the absolute interest ; and, therefore, in the vided int moieties, two, equal present case Kate Lyster took an estate'in quasi fee in a moiety of and that the trustees should the lands of Dereen, under the settlement of the 1st of January stand seised of one moiety thereof in trust 1816. There is a clear intention shown to give the whole of one for B (a moiety of the estate to the issue of the marriage. After the death daughter of ), th- of Catherine, if she should leave issue, the trustees are to pay ded wie fe,nten for and apply " all and singular said full moiety or one-half of said death after of the life, and estates and properties amongst said children, share and share alike ; B, in n case be there the yearly rents, issues, and profits, and the interest and produce issue of the marriage,upon trust to pay and apply all and singular said full moiety or one-half of said estates and properties amongst said children, share and share alike, the yearly rents, issues, 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 andpoperty and principal sum and sums of money, equally between and amongst them ; land in case B should die without issue living at her death, then to apply the said moiety to the use of the intended husband for his life, and after his death to the use of C (a sister of B), her heirs and assigns ; and if she died without issue living at her death, to the use of A, his heirs, executors, administrators and assigns. Held, that an only_stfild of B, by this marriage, took the absolute interest in a moiety of the lease of lives renewable for ever. Held (by the LORD CHANCELLOR), that, in a deed, words of limitation are not necessary to pass the entire interest in a lease of lives renewable for ever, if other words are used or declarations made, conveying the whole estate of the lessee, or declaring the trusts of the whole estate vested in trustees. Cases on this subject reviewed. Doctrines of the law with respect to estates pur autre vie and occupancy considered and discussed. 88 CHANCERY REPORTS. thereof to be paid to and amongst them until the youngest of said children shall attain the age of twenty-one years ; and then to divide all and singular said moiety or one-half of said estate and property, and principal sum and sums of money, equally between and amongst them." This points to a distinction between the "moiety of the estate and property" and" the principal sum and sums of money," showing that the trustees were to divide not only the rents and profits but also the corpus-the estate itself. But the "principal sum and sums of money" would go absolutely to the children, and it is thereÂfore manifest that the " moiety of the estate and property " was also intended to be given to them absolutely. The parties to this deed evidently contemplated two contingencies : either that Catherine should die leaving issue, or that she should die without • issue living at her death. For the latter case full provision is made by a chain of limitations, ending with an ultimate limitation to Patrick Wyer and his heirs. But if the contention of the reÂspondents be right, in the event of Catherine dying leaving issue, no provision is made for the devolution of the estate after the life estates to the issue. This is a strong argument in favour of the intention shown in this deed in many other ways of giving the absolute interest to the issue of the marriage. The covenant at the end of the deed restraining the leasing power of those in possession of the lands of Dereen shows that the heirs of Catherine were regarded as persons who might take the estate. The ultimate limitation toPatrick Wyer, in the event of Catherine dying without issue, is opposed to the idea that he was to take on the death of the issue. The express use in the one case is repugÂnant to the resulting use in the other. But the whole interest in the lease of 1810 was vested in the trustees ; and upon an estate pur autre vie there can be no resulting use: Keegan v. Mowlds (a); Gilbert on Uses, p. 111 ; Castle v. Dodd (b); 1 Cruise's Digest, p. 406. As to the proposition that words of inheritance are not necessary (a) 8 Ir. Jur., N. S. 172. (6) Cro. Jac. 200. CHANCERY REPORTS. 89 to pass the absolute interest in a lease for lives renewable for ever : 1864. Ch. Appeal. 3tClintock v. Irvine (a); Williams v. Jekyl (b); Crozier v. BRENAN Crozier (c); Doe v. Robinson (d); Lamphier v. Drapes (e); v. Bayley v. O'Connell (f). Keats v. Hewer (g), though on copy- BOYNE. holds, is a case directly in point, for the estate in that case was quite Statement. similar to an estate pur autre vie : 1 Preston on Abstracts, pp. 436, 442; Doe d. Kerr v. Cassidy (h). Sergeant Sullivan and Mr. Beytagh, for the respondent. Argument. The tendency of modern decisions is to assimilate in every way estates pur autre vie to estates in fee-simple. But it is beyond controversy that if these lands of Dereen had been held by Patrick Wyer in fee-simple, Kate Lyster could have taken but an estate for life : Barron v. Barron (i); Allen v. Allen (k) ; Dawson v. Dawson (1). The doctrine of III'Clintock v. Irvine (m) was not strictly followed in Nunn v. Donovan (n) nor in Lamphier v. Drapes (o); Holliday v. Overton (p); Hegarty v. .Nally (q); Pickersgill v. Grey (r); Low v. Burron (s). On this day the case was re-argued by Mr. John Thomas Ball for the appellant, and Sergeant Sullivan for the respondent. Cur. adv. vult. The LORD CHANCELLOR. This case came before us last Term, on an appeal from an order Judgment. Feb. 13. of the Master of the Rolls. The question involved is one of peculiar importance ; and we therefore thought it necessary to have the case argued a second time before pronouncing judgment. Having heard' (a) 10 Ir. Chan. Rep. (b) 2 Ves. sen. 681. (e) L3 Dra. & War. 373. (d) 8 B. & Cr. 296. (e) 14 Ir. Chan. Rep. 33. (f) 9 Ir. Jur., N. S. 398. (g) 10 Jur. 1040 and 506. (h) 1 Had. & Br. 224 n. (i) 10 Ir. Chan. Rep. 120. (k) 2 Dr. & War. 332; S. C., 4 Ir. Eq. Rep. 472. (1) 13 Ir. Law Rep. 472. (m) Ubi supra. (n) 13 Ir. Chan. Rep. I$4. (o) Ubi supra. (p) 14 Beay. 467 ; 15 Beay. 480. (q) 13 Ir. Corn. Law Rep. 532. (r) 30 Beay. 352. (s) 3 P. W. 262. VOL. 16. 12 L 90 CHANCERY REPORTS. very able arguments on both sides, it now remains to state the deciÂsion to which this Court has come. The facts of the case are substantially these :-By indenture, bearing date the 14th of December 1810, Joseph Tibeaudo, who was seised in fee of the lands of Dereeu, demised 190 acres thereof to Patrick Wyer and his heirs, for three lives, with a covenant for perpetual renewal. Patrick Wyer the lessee had two daughters, Catherine and Ellen, and, on the occasion of the marriage of the latter with Patrick Boyne, a settlement was executed, on the 31st of May 1813, whereby Patrick Wyer granted to Edward O'Beirne and Cornelius Dowling, and their heirs, 63a. 2r. 32p. of the said lands, upon trust to pay an annuity of £100 a-year to Ellen Wyer during the life of her father Patrick Wyer; and it was thereby agreed that, after the decease of Patrick Wyer, the lands of Dereen, 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...