Burton v Nunan

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 21 January 1908
• Court: Court of Appeal (Ireland)
• Docket Number: (1906. No. 1058.)
• Date: 21 January 1908

Burton

and

Nunan.

M. R.

Appeal.

(1906. No. 1058.)

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.

1908.

Settlement — Construction of — Lease for life and reversionary term of years — Trust for settlor “or his heirs” — Purchase of fee by limited owner — Graft on previous interest — Local Registration of Title (Ireland) Act, 1891 (54 & 55 Vict. c. 66), s. 29.

Held, (1) that the words “or heirs” were superfluous, or were used by way of substitution to indicate that the lands were to result to the settlor absolutely in the events which happened, and that, having become a chattel interest, they passed to his personal representative on the death of B, subject to the annuity to C; and (2) that the fee-simple acquired by B was subject to the trusts of the settlement, and that on his death the next-of-kin of A became beneficially entitled to the lands for the residue of the term of years, subject to the annuity, and to the stock and chattels thereon.

Adjourned Summons.

This was an application on behalf of Francis J. Burton and William J. Nunan, the executors of the will of William Nunan, late of Gooseberry Hill in the county of Cork, farmer, deceased, to take the opinion of the Court, whether the testator had power to dispose of the lands of Gooseberry Hill and the stock thereon to his nephew the defendant, Joseph W. Nunan, having regard to the terms of the testator's marriage settlement, dated July 28th, 1860.

The facts of the case were as follows:—

On December 19th, 1855, J. B. Creagh demised the lands in question to John Nunan (father of the testator), his heirs, executors, administrators, and assigns, for the life of Jeremiah Boyan (then aged ten years) and for the term of sixty-one years to commence and be computed from the 25th March next immediately previous to the death of the said Jeremiah Boyan at the yearly rent of £60. On July 28th, 1860, John Nunan put the lands in settlement on the marriage of his son William Nunan with Ellen Burton; and by indenture of that date, in consideration of the marriage and of the sum of £700, being the marriage portion of the said Ellen Burton, John Nunan assigned the lands to John Burton and Thomas Nunan (the trustees of the settlement) for the residue of the term for which the same were held, and also the cattle, horses, farming implements, and other effects upon the lands, to hold upon the following trusts: namely, to permit William Nunan to receive the yearly profits and benefits of the said premises during the joint lives of William Nunan and Ellen Burton, and, in case Ellen Burton died within five years from the date of the settlement without leaving issue of the marriage her surviving, then in trust to raise £350, and pay the same to Francis Burton (father of Ellen Burton) or such person as he should by deed or will appoint, and in default of appointment to his lawful heirs; and on further trust, in the event of Ellen Burton surviving her husband without issue, to permit her to receive £40 a year during her life, and subject to payment of the said annuity, and the trusts thereinbefore and thereinafter mentioned, to hold the said premises for the absolute use of the said John Nunan or his heirs, and upon further trust, in case there should be any issue of the marriage surviving at the death of William Nunan, to pay to Ellen Burton a child's portion of the said property, and to hold the residue of the said property for the benefit of such child or children equally or in such shares as William Nunan and Ellen Burton or the survivor should by deed or will appoint, and upon further trust that if William Nunan should survive Ellen Burton, she having lived more than five years, then to hold the said lands and premises for the sole and absolute use and benefit of William Nunan, his heirs, executors, and administrators.

In the year 1872, John Nunan died, having made a will dated August 16th, 1871, and two codicils dated the 13th and the 25th September, 1872, but he did not thereby dispose of his interest, if any, in the said lands and chattels, nor did the will or codicils contain any residuary devise or bequest. He appointed his sons, William Nunan and Joseph Nunan, his executors, who duly proved the said will and codicils. William Nunan was his eldest son and heir-at-law. John Nunan left five other children, three sons and two daughters; all of them had since died, but four of them had married and left children, who were still surviving.

William Nunan went into possession of the lands and chattels on his marriage, and continued in possession of them till his death. In 1897 William Nunan purchased the lands from the landlord under the Purchase of Land (Ireland) Acts, and on June 5th, 1897, an order was made by the Irish Land Commission vesting the fee-simple in him subject to an annuity of £37 payable to the Irish Land Commission. On July 16th, 1897, William Nunan was registered under the Local Registration of Title Act, 1891, as owner in fee-simple of the lands, subject to the said annuity payable to the Land Commission, or such other annuity as might be substituted therefor, pursuant to the 25th section of the Land Law (Ireland) Act, 1896, until the sum of £925 (the purchase-money of the lands) with interest thereon should have been repaid, and subject to the rights and equities (if any) arising from the interest vested in William Nunan by order of the said Commission, dated the 5th June, 1897, being deemed to be a graft on his previous interest in the land, or arising in any other manner from the existence of such previous interest.

William Nunan died on November 2nd, 1905, leaving his wife surviving, but no issue of the marriage. By his will, dated June 18th, 1905, William Nunan devised and bequeathed the said lands, with the stock, horses, and equipments of all kinds, to his nephew, the defendant, Joseph T. Nunan, charged with payment of £40 a year to his wife for her life, and appointed the plaintiffs his executors, by whom his will was proved on January 26th, 1906. The executors were advised that, in the events which happened, on the death of William Nunan, the next-of-kin of John Nunan the settlor became entitled to the said lands and chattels, and accordingly they took out this summons.

John Murphy, one of the children of a deceased daughter of John Nunan, was appointed to represent the class of the next-of-kin of John Nunan.

A. M. Sullivan, for the plaintiffs.

Charles Doyle, K.C., for the defendant, J. T. Nunan:—

It may be contended that when William Nunan died the lands went to the personal...