Chism v Lipsett

• Jurisdiction: Ireland
• Judgment Date: 30 June 1904
• Date: 30 June 1904
• Court: Court of Appeal (Ireland)

CHISM

and

LIPSETT.

CHANCERY DIVISION

Appeal

Settlement — Construction — Lost deed — Evidence of contents — Memorial — Estate pur antre vie — Grant to trustees in trust for A and his heirs for life, and after his death to the use of the first and every other son of A and his intended wife, and in default of such issue to the issue female of the marriage — Power to appoint by will — Deed executed by donee of the power inconsistent with exercise of power — Release of power.

Barton v. BriscoeENR Jac. 603.

Brenan v. Boyne 16 I. R. Ch. R. 87.

Buckler's Case 1 Co. Rep., Part II., 55 a.

Crozier v. Crozier 3 Dr. & W. 382.

Darlington v. Hamilton Key, 550.

Davis v. Tollemache 2 Jur. (N. S.) 1181.

Doe v.RobinsonENR 8 B. & C. 296.

Fitz Gerald v. Fitz GeraldIR [1902] 1 I. R. 477.

Foulkes v. JacksonELR [1900] 1 Ch. 807.

Granville's CoutractELR 24 Ch, D, 11.

Greene v. GreeneUNK 2 J. & LaT. 541.

Heath v. WickhamUNK 3 L. R. Ir. 376.

Heath v. WickhamUNK 3 L. R. Ir. 381.

Horner v. Swaine T. & R. 430.

Hume v. BentleyENR 5 De G. & Sm. 520.

In re Chambers 11 Ir. Eq. R. 518.

In re National Provincial Bank of England and MarshELR [1895] 1 Ch. 190.

In re Scott and Alvares's Contract; Scott v. AlvarezELR [1895] 2 Ch. 603.

Isaac v. Hughes 2 J. & L. 529. 541.

Isaac v. Hughes L. R. Ir. 191.

Lambert's EstateIR [1901] 1 I. R. 261.

Lamphier v. Drapes 14 Ir. Ch. R. 33.

Manifold v. JohnstonIR [1902] 1 I. R. 7.

M'Clintock v. Irvine 10 Ir. Ch. R. 480.

M'Clintock v. Irvine 10 Ir. Ch. R. 485.

M'Vicker's ContractUNK 25 L. R. Ir. 307. 311.

Oakden v. Pike 34 L. J., Ch. 620.

Palmer v. LockeELR 15 Ch. D. 294.

Radcliffe v. BewesELR [1892] 1 Ch. 227.

Re Hughes and Ashley's ContractELR [1900] 2 Ch. 595.

Re Lyons and Carroll's ContractIR [1896] 1 I. R. 386, 390.

Reid v. Shergold 10 Ves. 369.

Scott v. AlvarezELR [1895] 2 Ch. 603.

Shepherd v. KeatleyENR 1 C. M. & R. 117.

Smith v. RobinsonELR 13 Ch. D. 148.

Smith v. WhitmoreIR [1896] 1 I. R. 520.

Stuart v. Kennedy 3 Ir. Jur. (O. S.) 305.

Waddell v. WolfeELR L. R. 9 Q. B. 515.

Walsh's TrustsUNK 1 L. R. Ir. 320.

Warren v. RichardsonENR You. 1.

60 THE IRISH REPORTS. [1905. M. B. CHISM v. LIPSETT. 1904. Feb. 5,6, 18. Settlementonstruction—Lost deed—Evidence of contents—MemorialÂMarch 2. Estate pur autre vie—Grant to trustees in trust for A and his heirs for life, and after his death to the use of the first and every other son of A App-ea and his intended wife, and in default of such issue to the issue female of June 8, 9, 30. the marriage—Power to appoint by will—Deed executed by donee of the power inconsistent with exercise ofpower—Release of power. By marriage settlement, dated the 1st May, 1806, made on the marriage of T. L. and A. D., lands held under a lease for lives renewable for ever were conveyed by J. L. (the father of T. L.) to trustees and their heirs, on trust to permit T. L., his heirs and assigns, to occupy and enjoy the lands during his life, and after his death to the use of the first, second, and all and every other the sons of the said T. L. lawfully begotten, and in default of such issue, then to the issue female of the marriage. The settlement of the 1st May, 1806, was lost, and the only evidence of its. contents was taken from a memorial from the Registry of Deeds. The lease for lives renewable for ever was converted into a fee-farm grant in 1856. By his will, dated the 4th June, 1858, T. L. devised one portion of the lands to his son W. L. and to the heirs of his body, and the remaining portion to him for life, with remainder in each case as he should by will appoint. By his will, dated the 13th February, 1883, W. L. appointed all the lands to T. W. L. and H. C. L. in fee ; and by indenture, dated the 11th November, 1884 (executed on the marriage of his niece, A. L.), W. L. granted the same lands to trustees, in trust, subject to limitations which determined, for A. L. in fee. A. L. died in 1886 ; W. L. died in 1902 :— Held, by the Master of the Rolls—(1) on the construction of the settlement of the 1st May, 1806, that T. L. took an estate for life, with an ultimate limiÂtation in fee, and that, the estates of the sons and daughters being life estates only, the title should be traced through T. L. ; (2) that the power of appointÂment, though exercisable by will only, could be released ; and that the deed of the 11th November, 1884, operated as a release of the power, and that the plaintiff was entitled to the lands as heiress of A. L. or of T. L. Stuart v. Kennedy (3 Ir. Jur., 0. S., 305) not followed. Held, by the Lord Chancellor and Holmes, L.J., that under the settlement of the 1st May, 1806, the sons and daughters took life estates only, and that there was an ultimate remainder to T. L. in fee. life estates, with a resulting trust to the settlor, J. L., and that on the death of J. L., in 1829, intestate, T. L., as his heir, became entitled. Held, also, by the Court of Appeal, that the deed of the 11th November, 1884, being inconsistent with the exercise of the power of appointing by will, operated as a release of the power, and that the plaintiff was entitled to the lands. Amor/ by Elizabeth Dorcas Chism against Thomas William Lipsett for a declaration that the plaintiff was entitled to a portion of the lands of Cashel in the county of Donegal. By indenture of settlement, dated the 1st May, 1806, made between James Dundas and Anne Dundas (his daughter) of the first part ; John Lipsett and Thomas Lipsett of the second part ; and Robert Dundas and Francis Lipsett of the third part ; being the settlement made on the marriage of Thomas Lipsett and Anne Dundas, John Lipsett granted to Robert Dundas and Francis Lipsett and to their heirs, part of the lands of Cashel, in the county of Donegal, then held under a lease for lives renewable for ever " in trust to permit and suffer the said Thomas Lipsett, his heirs and assigns, to hold and occupy the said lands, and the rents and profits thereof, during his life, and after his decease then to the use of the first, second, and third, and all and every the son and sons of the said Thomas Lipsett, lawfully to be begotten on the body of the said Anne Dundas, and in default of such issue, to the issue female of the said intended marriage." The settlement was lost, and the only evidence of its contents was a copy of the memorial from the Registry of Deeds. Thomas Lipsett entered into possession of the property comÂprised in the settlement, and remained in possession until his death on the 5th June, 1859. In 1829 John Lipsett, the settlor, died, leaving Thomas Lipsett his heir-at-law. Thomas Lipsett had six sons and four daughters, namely : 1. John Lipsett, who died on the 20th April, 1845, in the lifetime of his father, leaving three children. (a) John Lipsett, junior, who died on the 27th August, 1867, intestate and unmarried. (b) Elizabeth Dorcas Lipsett, the wife of John B. Chism, the plaintiff in this action. 1905—Vol.. I. THE IRISH REPORTS. [1905. (c) Annie Lipsett, who married Sir Thomas F. Brady, and died on the 14th June, 1886, in childbirth, leaving one child only, an infant son, who survived her only a few hours. 2. James Lipsett, died on the 22nd March, 1876, unmarried. 3. Thomas Lipsett, died on the 17th May, 1842, in the lifeÂtime of his father, unmarried. 4. William Lipsett, died on the 5th June, 1892, unmarried. 5. Robert Lipsett, died on the 15th June, 1849, unÂmarried. 6. Henry Caldwell Lipsett, died in May, 1869, leaving a widow, Emma Lipsett, and three children, him surviving, namely : 7. Thomas William Lipsett--the defendant in this action. 8. Henry Caldwell Lipsett. 9. Marianne Lipsett. The four daughters of Thomas Lipsett the elder all survived him, and died without having been married, viz. Sarah Lipsett died on the 5th May, 1882 ; Frances Lipsett on the 22nd January, 1895 ; Mildred Lipsett on the 29th April, 1901 ; and Louisa Lipsett on the 15th December, 1902. Thus, the only surviving issue of the marriage of Thomas Lipsett the elder, living at the date of the action, were the plaintiff, the daughter of John Lipsett, the eldest son, and the three children of Henry Caldwell Lipsett, the youngest son, viz. the defendant, Thomas William Lipsett, and the defendant's brother and sister, Henry Caldwell Lipsett and Marianne Lipsett. The plaintiff claimed that in the events which had happened she was entitled to the lands as tenant in tail under the settlement of the 1st May, 1806. In the alternative the plaintiff claimed that on the death of Thomas Lipsett the elder, in 1859, his second son, James Lipsett, and his fourth son, William Lipsett, entered into possession of all the property comprised in the said settlement of the 1st May, 1806, and held exclusive possession thereof as joint tenants, and acquired a title thereto under the Statute of Limitations, and the plaintiff submitted that on the death of William Lipsett, the survivor, VoL. L] CHANCERY DIVISION. 63 she, as his heiress-at-law, and also under a settlement dated the M. R. 11th November, 1884 (more fully stated hereafter, infra), became 1904. entitled to the same. CHism In the alternative the plaintiff claimed that prior to the death L -IPSETT. of Thomas Lipsett the elder, in 1859, the said James Lipsett and William Lipsett were in exclusive possession of the lands in two moieties, and continued in such possession until their deaths, James Lipsett, until his death on 22nd March, 1876, and William Lipsett, until his death on 5th June, 1892, and each acquired a title to the moiety occupied by him under the Statute of LimitaÂtions. As to the moiety of the lands comprised in the indenture of settlement of 1st May, 1806, so occupied exclusively by William Lipsett since 1859, and also as to all right and title he had acquired in the whole of the lands comprised in the settlement, the plaintiff claimed that by an indenture dated the 11th November,1884, made...