Clune v Apjohn

• Jurisdiction: Ireland
• Judgment Date: 18 January 1866
• Date: 18 January 1866
• Court: Rolls Court (Ireland)

Rolls.

CLUNE

and

APJOHN.

Walmsley v. VaughanUNK 1 D. & J. 114.

Simpson v. PaulENR 2 Cox, 34.

Chadwick v. DolemanENR 2 Vern. 527.

Tennison v. MooreUNK 13 Ir. Eq. Rep. 424.

Scarden v. WatsonENR 10 Beav. 200.

In re Graham's WillENR 33 Beav. 479.

Synge's TrustsUNK 3 Ir. Ch. Rep. 379.

Alloway v. Alloway 4 Dr. & War. 391.

Wilson v. Piggott 2 Ves., jun. 351.

Wombwell v. HanrotENR 14 Beav. 143.

Langslow v. LangslowENR 21 Beav. 552.

Foster v. Cautley 6 D. M. & G. 63.

Rucker v. ScholefieldENR 1 H. & M. 36.

Fortescue v. Gregor 5 Ves. 553.

Lee v. HeadENR 1 K. & J. 620.

Folkes v. Western 9 Ves. 456.

Fry v. CapperENR Kay, 163.

"in lieu and discharge of her share." See Wilson v. Pigott, 2 Ves., jun. 351. 4 D. & W. 380.

Simpson v. PaulENR 2 Eden, 34.

Lee v. HeadENR 1 Kay. & John. 620.

Forter v. Cautley 6 D., M. & G. 63.

Alloway v. Alloway 4 D. & W. 391.

CHANCERY REPORTS. 25 1865. Rolls. Nov. 3, 4, 7. CLUNE v. APJOHN. 1866. Jan. 18. THERE were five motions in this case, by way of appeal from a decretal order of Master Litton. The questions arose on the conÂÂstruction of three deeds of appointment, and the will of Mrs. Mary Burke. The deeds and the will are fully stated in his Honor's judgment. • Mr. Warren, and Mr. F. White, in support of the appeals, argued that the appointees, being parties to the deeds of apÂÂpointment, and having accepted the benefits given to them by those deeds, in lieu and satisfaction of their claims to the trust funds in the marriage articles, were precluded from claiming their shares in default of appointment. The object of a power might release his interest, and these deeds amounted to a release of the interest of the appointees : Lord St. Leonards on Powers, p. 285 ; Walmsley v. Vaughan (a); Simpson v. Paul (b); Chadwick v. Doleman (c) ; Tennison v. Moore (d). The sons only took life interests under the will : Scarden v. Watson (e); In re Graham's Will (f); Synge's Trusts (y). Appointments by indentures, to which the appointees were parties, made under a power to apÂÂpoint to chilÂÂdren, with a limitation to them equally in default of appointment, and one of which the apÂÂpointee acÂÂcepted and took, as and for and in lieu and discharge of her share or portion ; and the other the appointee acÂÂcepted as and for her share and proportion of the properÂÂty, the subject of, the power, and in lieu, bar and full satisfaction of all claim which she might have as one of the children or otherwise Held, in each case to preclude the appointees of their shares in default of apÂÂpointment A; testatrix bequeathed 1000 each to her sons A and B during their lifetime, with reversion to their children lawfully begotten, and charged property over one part of which she had a power of appointment in favour of her children, and a general power over the other part, with 2000, to be levied and paid to a trustee for the use and benefit of A and B-i. e., to pay the interest to them during their life equally ; and after the decease of A, to pay 1000 to his lawful children, and in:default of such issue, to her own heirs, with a similar bequest of 1000 to the children of B, and in default of such issue, to her own heirs. Held, that A and B took only life interests. Held also, that the bequests to their children were charged on the property over which the testatrix had a general power of appointment. (a) 1 D. & J. 114. • (b) 2 Cox, 34. (a) 2 Vern. 527. (d) 13 Ir. Eq. Rep. 424. (e) 10 Beay. 200. (f) 33 Beay. 479. (g) 3 Ir. Ch. Rep. 379. Vol.. 17. 4 26 CHANCERY REPORTS. Mr. M. Morris, and Mr. Beytagh, for Mr. and Mrs. Laing. The following authorities were cited in support of the Master's decision: Alloway v. Alloway (a); Wilson v. Piggott (b); WombÂÂwell v. Hanrot (c); Langslow v. Langslow (d); Foster v. Gaut-ley (e); Rucker v. Scholvield (f); Fortescue v. Gregor (g); Lee v. Head (h); Folkes v. Western (i); Fry v. Capper (k). The MASTER OF THE ROLLS. A. motion has been made in this case on behalf of Redmond Burke, by way of appeal from the order of Master Litton, bearing date the 2nd, and signed the 7th of August 1865. The petition in this case prayed, amongst other matters, an acÂÂcount of all charges affecting the lands of Ballingalla and Miltown therein mentioned ; and the case having been referred to the Master by the Lord Chancellor, under the 15th section of the statute, the appellant Redmond Burke filed a charge. The facts of the case appear to be as follows :-.Mary Lloyd, previously to the date of the marriage articles of the 21st of OcÂÂtober 1812 hereinafter particularly mentioned, was entitled to a charge of 1600, affecting the said lands of Ballingalla and Mil-town, the said lands of Miltown being a subdenomination, of Ballingalla. The said Mary Lloyd became also entitled, before the date of the said marriage articles, to the said lands under the will of her brother Thomas Richard Lloyd. Those lands are stated in the Master's order to have been held under a lease, dated the 25th o August 1849, for twenty-one years, with covenant for perpetual renewal. The charge of 1600 did not, by reason of what occurred (a) 4 Dr. & War. 391. (e) 14 Bea,. 143. (e) 6 D. M. & G. 63. (g) 5 Yes. 553. (i) 9 yes. 456. (b) 2 Yes., jun. 351. (d) 21 Beay. 552. CO 1 H. & H. 36. (h) 1 B. & J. 620. (k) Kay, 163. CHANCERY REPORTS. 27 merge in the said Mary Lloyd's estate in the lands ; and that has been decided by the Master, and no objection has been made to his order on that ground. The said marriage articles, dated the 21st of October 1812, were executed on the marriage of the said Mary Lloyd and John Burke, and were made by and between the said John Burke of the first part, the said Mary Lloyd of the second part, and Michael Lloyd and George Fawcett, trustees, of the third part. The articles recited the then intended marriage, and that Mary Lloyd was entitled to the said charge of 1600 ; and was also entitled, under the will of her said brother, to the said lands on which the 1600 was a charge ; and recited a certain agreement, on the part of the father of the said John Burke, to make a certain settlement therein mentioned on his son and the issue of the marriage, and to provide a certain portion for the said Mary Lloyd ; and recited that the said Mary Lloyd, in case the said settlement should be carried into legal effect, would vest the said John Burke with power of disposing of a moiety of such property as she might eventually recover by virtue of her said brother's will; and after such recitals it was, by said marriage articles, witnessed, that the said Mary Lloyd granted to the said trustees all her right and interest in said sum of 1600, and all the property to which she should become eventually entitled under the will of her said brother (which included the lands of Ballingalla and Miltown), to hold the said charge of 1600, and the property which she should become entitled to under her said brother's will, on trust as to the said sum of 1600, in case the father of the said John 'Burke should not fulfil his agreement to make a settlement (which settlement was not made) to pay unto Mary Lloyd, for her life, the interest on said sum of 1600, for her sole and separate use, &c.; and after the decease of the said Mary Lloyd, upon trust "to the use of such child or children of said intended marriage, in such shares and proportions as the said Mary Lloyd shall, by any deed duly executed in her lifetime, or by her last will and testament, direct, limit and appoint" (which power I shall hereafter call power No. 1); " and for want of such appointment, then to the children of the said 28 CHANCERY REPORTS. intended marriage, share and share alike ; and if there is no issue of said marriage, then upon trust to the use of such person or persons, and in such manner and form as the said Mary Lloyd shall, by any deed to be by her duly executed in her lifetime, or by her last will and testament, direct, limit and appoint"-(that power did not come into operation as there were children of the marriage); "and for want of such appointment, then to the use of the heirs, executors, and administrators of the said Mary Lloyd. Then follow the trusts as to any property which she should be entitled to under her brother's will (which included the said lands of Ballingalla and Miltown); under which trusts she was entitled to an estate for life for her sole and separate use ; and after her death the property was limited to the use of the said John Burke for life ; and from and after the decease of the said John Burke, " one moiety or one half thereof to be and enure to the use of the children of the said marriage, in such shares and...