Duddy v Gresham

• Jurisdiction: Ireland
• Judgment Date: 06 May 1878
• Date: 06 May 1878
• Court: Chancery Division (Ireland)

Q. B. Div.

Before FITZGERALD and BARRY, JJ.

DUDDY

and

GRESHAM AND OTHERS

Egerton v. Earl BrownlowENR 4 H. L. C. 1.

Walcot v. BotfieldENR Kay, 534.

Fillingham v. Bromley T. & R. 530.

Colston v. NorrisENRENR Jac. 257; S. C. 6 Madd. 89.

Wynne v. FletcherENR 24 Beav. 430.

Jones v. JonesELR 1 Q. B. D. 279.

Gulliver v. AshbyENR 4 Burr. 1940.

Thomas v. HowellENR 1 Salk. 170.

Garret v. PrittyENR 2 Vern. 293.

Genery v. FitzgeraldENR Jac. 470.

Lloyd v. LloydENR 2 Sim. N. S. 263

Bellairs v. BellairsELR L. R. 18 Eq. 510.

Clavering v. EllisonENR 7 H. L. C. 707.

Jervois v. DukeENR 1 Vern. 19.

Wheeler v. BinghamENR 3 Atk. 364.

Jones v. Suffolk 1 Br. C. C. 528.

Fillingham v. BromleyUNK 1 T. & R. 530.

Construction of will Condition precedent or subsequent Condition that the wife of testator should retire into a convent.

LAW REPORTS (IRELAND). QUEEN'S BENCH, COMMON PLEAS, AND EXCHEQUER DIVISIONS. DTTDDY v. GRESTTAM AND OTHERS (1). Construction of will-Condition precedent or subsequent-Condition that the wife of testator should retire into a convent. A testator devised all his property, both real and personal, to his wife, on condition that she should, immediately after his death, retire into a convent; -without any devise over in ease of non-compliance with the condition ; the wife survived, but did not retire into a convent : Held, in ejectment on the title by the heir of the husband against the devisee of the wife, that the condition (at all events as respected the real estate) was a condition precedent, and that the Plaintiff was entitled to recover. Semble--per FITZGERALD, S., that the result would be the same though the condition were a condition subsequent. EJECTMENT on title to recover possession of part of the lands of Clooney, in the liberties of the city of Londonderry, and for 1200 mesne rates, tried before Fitzgerald, B. at the LondonÂÂderry Summer Assizes, 1877. . The Plaintiff sued as heir-at-law of his cousin William Duddy, owner in fee of the premises, who made his will dated the 7th August, 1868, and died in October, 1868, without issue, and. leavÂÂing a widow. (1) Before FITZGERALD and BARRY, JJ . Vor. 11. LAW REPORTS (IRELAND). [L. R. I. The property consisted of premises held in fee, leaseholds for years, stook in trade, shares, and other personal property. The testator devised and bequeathed unto his wife Helen "all my right, title, and interest in and to all my said property, both real and personal, of which I may die seised and possessed, on the condition that my said wife shall retire immediately after my death into a convent of her own choice." He then bequeathed. two legacies of 60 each to be paid by his wife out of his said proÂÂperty, and his will proceeded thus : "And lastly, I leave, devise and bequeath all the rest, residue and remainder of my said property of which I shall die seised and possessed, both real and personal, to go to and belong to my said wife, she being bound to go into a. convent, and not to marry after my death as aforesaid, after payÂÂment by her of all my just debts, funeral and testamentary expenses." Probate was obtained by the testator's widow in February, 1869, and she died on the 24th March, 1870, never having entered a convent. The Defendants in the present case claimed under her will. The learned Judge directed a verdict for the Plaintiff, giving leave to have the verdict changed in case he should have so directed. A conditional order having been obtained pursuant to leave reserved :- O'Hagan, Q. C. (with him Holmes, Q. C., and M'Conchy), showed cause. The condition is a condition precedent. But assuming it to be a condition subsequent, the condition is capable of defeating the gift and rendering it void. A contingent gift or interest has an existence capable, as well as a vested interest or estate, of being made to cease and become void : Egerton v. Earl Brown-low (1). The law on the subject of conditions precedent and subÂÂsequent will be found clearly laid down in 2 Jarman on Wills. A proviso in a will, that a person shall reside at a particular house for six months in the year, has been held a good condition: (1) 4 H. L. C. 1. VOL. II.] Q. B., C. P., & EX. DIVISIONS. 3 Wakot v.Botfield (1). In Fillingham v. Bromley (2) the condition Q. B. Die. was held void. as being too uncertain ; that is not the case here. 1878' The condition is not merely in terrorem : Colston v. Norris (3). In DuB.Br Wynne v. Fletcher (4) the condition as to residence was held good, GRESHAM. and not void for uncertainty. The law relating to personalty will not apply : Jones v. Jones (5). Carson, Q. C. (with him The Solicitor-General, Hamilton, Q. C., and Keys). The presumption is against the condition being precedent, because the condition is not capable of being performed instanter, but time is requisite for its performance : Gulliver v. Ashby (6). The circumstance of a definite time being appointed for the perÂÂformance of the condition, but none for the vesting of the estate, has been held to favour the supposition of its being a condition subsequent : Thomas v. Howell (7). There is no devise over in the present case ; this has been held sufficient to defeat the condition : •Garret v. Pritty (8). It is a general rule that such conditions annexed to estates as go in defeasance, and tend to the destruction of the estate, being odious to the law, are taken strictly, and shall not be extended beyond their words, unless it be in some special cases: 1 Shep. Touch. 133. Where real and personal property are mixed, the law relating to personalty must prevail : Genery v. Fitzgerald (9). The rule as to conditions subsequent is thus laid down in Lloyd v. Lloyd (10) : "With regard to that which is an apparent condition subsequent, annexed to the estate of a tenant for life, by the rule of law it is void. as to M. M. Lockley; but according to the authorities such a condition is not void as to the wife, the law recognising in the husband such an interest in his wife's widowÂÂhood as to make it lawful for him to restrain her from making a second marriage, by imposing a condition that on such marriage any provision he shall make for her shall cease." This is the utmost extent the law will go. (1) Kay, 534. (2) T. & 14. 530. (6) (7) 4 Burr. 1940. 1 Salk. 170. (3) he. 257 ; S. C. 6 Madd. 89. (8) 2 Vern. 293. (4) 24 Beay. 430. (9) Jas. 470. (5) 1 Q. B. D. 279. (10) 2 Sim. N. S. 263. B2 Q. B. Dir. 1878. LAW REPORTS (IRELAND). [L. R. L A. condition subsequent in restraint of marriage is void if a-nnexed to a gift of an income arising from a mixed fund conÂÂsisting of the proceeds of a sale of real estate and pure personal estate : Bellairs v. Bellairs (1). There is no foundation for the docÂÂtrine that, if there is a limitation in a will which by itself gives a vested estate, and a condition is afterwards added, on a breach of which the estate is to go over, the limitation and the condition will be construed into a contingent devise. A condition which is to defeat a vested estate must depend. on an event ascertainable from the beginning : Clavering v. Ellison (2). The condition is merely in terrorent : Jervois v. Duke (3). They also cited Wheeler Bingham (4) and Jones v. Suffolk (5). DUDDY GRESHAM. FITZGERALD, S. : The Plaintiff sued. as heir-at-law of William Duddy, the tesÂÂtator, to establish his right to certain lands and premises of which the testator was seised in fee. The testator died on the 7th of October, 1868, and. by his will he enumerated all his property, consisting of premises held in fee, and leaseholds for years, stock in trade, shares, and other personal property and effects ; and. he devised and bequeathed. unto his wife Helen " all my right, title and interest in and to all my said property, both real and. personal, of which I may die seised and. possessed, on the condition that my said wife shall retire immediately after my death into a convent of her own choice." The testator then bequeathed two legacies of 60 each to be-paid by his wife out of his said property ; and his will proceeds thus :-" and lastly, I leave, devise and bequeath all the rest, residue and remainder of my said property of which I shall die seised and possessed, both real and. personal, to go to and belong to my said wife, she being bound to go into a convent, and not to marry after my death as aforesaid, after payment by her of all my just debts, funeral and testamentary expenses ; " and the testator nominated his wife executrix of his will. (1) L. R. 18 Eq. 510. (4) 3 Atk. 364. (2) 7 H. L. C. 707. (5) 1 Br. C. C. 528. (3) 1 Vern. 19. VOL. II.] Q. B., C. P., & EX. DIVISIONS. t) v. She by her will devised to the Defendants. GRESHAM. The learned Judge at the trial directed a verdict for the PlainÂÂtiff, subject to be turned into a verdict for the Defendants. Counsel for the Plaintiff contended that the devise by William. Duddy to his wife was subject to a condition precedent-that she should immediately after his death retire into a convent-which had not been performed, and that, in consequence, the estate had. never vested ; and further, that if the condition was to be interpreted as a condition subsequent, yet that as it had not been performed, the estate had been divested, and the Plaintiff as heir-at-law was -entitled. The Defendants' principal contention was that the condition, if -any, was a condition subsequent, and that it was so uncertain that effect could not be given to it to defeat a vested estate. Our first duty is to ascertain, from the language of the testator, -what was his intention ; and it seems to us that he had two prinÂÂcipal objects before him, viz., to give the whole of his property to his wife and' to induce her to retire into a convent. There is no technical difficulty about the language used. The testator expresses himself clearly and definitely that his gift was on the condition that his wife should retire into a convent ; and, when he repeats the gift...