Exham v Beamish

JurisdictionIreland
CourtHigh Court
Judgment Date28 November 1939
Date28 November 1939
Exham v. Beamish.
CECIL H. EXHAM AND OTHERS
Plaintiffs
and
LUDLOW H. BEAMISH AND OTHERS
Defendants.

Voluntary settlement - Construction - Freehold lands settled by husband and wife - Settlors tenants for life - Provision for children and grandchildren - Period of ascertaining class - Whether limitations for grandchildren void for remoteness - Admissibility of after events to determine remoteness under powers of appointment - Admissibility of evidence as to the age of child bearing - How far judicial decisions in Ireland before the Treaty and English decisions which were followed are now binding upon the Court.

Construction Summons.

By an indenture, dated the 19th day of April, 1865, and made between the Rev. William Hamilton Thompson and Anne Jane Margaret Thompson his wife of the first part, William Phillips of the second part, and Sir Thomas Tobin, Richard Pigott Beamish and Charles Beamish of the third part, the said William Hamilton Thompson, Anne Jane Margaret Thompson and the said William Phillips, according to their respective estates and interests, granted, released and confirmed unto the said Sir Thomas Tobin, Richard Pigott Beamish and Charles Beamish the lands of Garrantaggart, Ahern and Ballynaroon and also the lands of Gortarudden, Lismakeene and other lands and hereditaments therein described to hold the same unto and to the use of the said Sir William Tobin, Richard Pigott Beamish and Charles Beamish, their heirs and assigns to the several uses upon the several trusts and for the purposes and subject to the conditions, provisoes and limitations thereinafter expressed, namely, to the use of the said William Hamilton Thompson and Anne Jane Margaret Thompson his wife and their assigns during their joint lives and after the decease of either of them to the use of the survivor of them during his or her life and immediately after the decease of the survivor of them upon trust by demised sale or mortgage of the said settled hereditaments to raise the sum of £7,000 for the younger children of the said William Hamilton Thompson and Anne Jane Margaret Thompson, and, subject thereto, to the use of Charles Chetwode Thompson eldest son of the said William Hamilton Thompson and Anne Jane Margaret Thompson for life with remainder to his son or sons as he should appoint, with remainder to the use of Quintin Hamilton Thompson second son of the said William Hamilton Thompson and Anne Jane Margaret Thompson for life with remainder to his son or sons in like manner, with remainder to the use of Edith Annie Thompson and Fanny de Courcy Thompson daughters of the said William Hamilton Thompson and Anne Jane Margaret Thompson equally, share and share alike, as tenants in common and not as joint tenants, for and during their respective natural lives, and from and immediately after the decease of either of them to the use of the child if but one, or of the children equally share and share alike and of his, her or their heirs as tenants in common and not as joint tenants if more than one of such of them, the said Edith Annie Thompson or Fanny de Courcy Thompson, as should first happen to die, until the date of the decease of the survivor of them, the said Edith Annie Thompson and Fanny de Courcy Thompson, but if there should be no such children, or, there being such, they should all happen to die under the age of 21 years in the lifetime of such survivor of the said Edith Annie Thompson and Fanny de Courcy Thompson and without leaving issue, then, as to the share of such of them the said Edith Annie Thompson and Fanny de Courcy Thompson as should so die without a child or remoter issue in the lifetime of the survivor to the use of the survivor of them, the said Edith Annie Thompson and Fanny de Courcy Thompson, for and during her natural life, and from and immediately after the decease of the survivor of them, the said Edith Annie Thompson and Fanny de Courcy Thompson, upon trust that the trustees or trustee for the time being of the said indenture should, and they were thereby expressly so directed and empowered to make sale and absolutely dispose of all the said lands and hereditaments and stand and be possessed of the moneys to arise from such sale upon trusts to pay and hand over the proceeds thereof equally, share and share alike, unto, between and amongst all and every the grandchildren of the said William Hamilton Thompson and Anne Jane Margaret Thompson his wife upon their respectively attaining the age of 21 years as to sons and the like age or day of marriage as to daughters, but if any such grandchild should have previously died leaving issue such issue to take the share to which their parent would have been entitled if living. The said indenture provided that in computing the share of each grandchild any sum or sums of money which might have been previously paid or might then be payable to him or her out of and as part of the charges on the said estates imposed by the said indenture or by virtue of any power therein contained should be taken into account and brought into hotchpot so that each such grandchild or his or her issue should take and become entitled to an equal share or sum of money and no one be preferred to the other or be entitled to any further or greater sum. It was further provided that the said sum of £7,000 charged upon the said lands was so charged upon the trusts next thereinafter declared, namely, upon trust for all and every or any one or more of the children or child of the said William Hamilton Thompson and Anne Jane Margaret Thompson as they should jointly appoint by deed, and, in default of such appointment, upon trust for and to pay and transfer the same unto the said Edith Annie Thompson and Fanny de Courcy Thompson, share and share alike, upon their respectively attaining the age of 21 years or upon their respective days of marriage whichever shall first happen and upon trusts in events which did not arise and which are not material to this report.

There were four children of the marriage of the said William Hamilton Thompson and Anne Jane Margaret Thompson (hereinafter referred to as "the settlors"), namely, Charles Chetwode Thompson, Quintin Hamilton Thompson, Edith Annie Thompson, and Fanny de Courcy Thompson; the said Charles Chetwode Thompson and Quintin Hamilton Thompson both died in the lifetime of the settlors intestate and without issue. The said Edith Annie Thompson married Ludlow Axel Beamish and there were three children of the said marriage, Ludlow Hamilton Beamish, one of the defendants, Harold Delacour Beamish and Ethel Hilda Beamish, all of whom attained the age of 21 years; the said Fanny de Courcy Thompson married George Gerard Fenwick and had issue, one child, George Gerard de Borrowden Fenwick who attained the age of 21 years. The said Ethel Hilda Beamish died on the 5th July, 1896, intestate and unmarried and administration of her personal estate was granted to the said Ludlow Axel Beamish, her father. The said Harold Delacour Beamish died on the 20th June, 1934, without issue, having made his last will, dated the 30th day of January, 1918, and on the 8th of April, 1935, probate of his said will was granted to Emily Mary Sophia Beamish his widow. The said George Gerard de Borrowden Fenwick died on the 17th of August, 1937, without issue, having made his will, whereby he left all his property to his mother, the said Fanny de Courcy Fenwick. The said Ludlow Axel Beamish died on the 16th of May, 1923, having made his last will, dated the 22nd of January, 1914, whereby he appointed his wife Edith Annie Beamish and his son the said Harold Delacour Beamish executors, and he demised and bequeathed all his property, real and personal, to his sons, the said Ludlow Hamilton Beamish and of Harold Delacour Beamish, in equal shares. Probate of said will was on the 31st of August 1923 granted to the said Harold Delacour Beamish. The said Edith Annie Beamish died on the 20th of February, 1932, and the said Fanny de Courcy Fenwick died on the 20th of August, 1937, both the settlors predeceased their daughters and the daughters had entered into receipt of the rents and profits of the said hereditaments. The said Fanny de Courcy Fenwick by her will left all her property to her son, the said George Gerard de Borrowden Fenwick, who predeceased her.

On the respective marriages of the said Edith Annie Beamish and Fanny de Courcy Fenwick the said sum of £7,000 charged by the said indenture of the 19th of April, 1865, on the settled hereditaments was appointed by the settlors to their daughters in equal shares, and each of such daughters assigned her moiety thereof to the trustees of her marriage settlement upon...

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