Ferguson v Benyon

• Jurisdiction: Ireland
• Judgment Date: 22 March 1886
• Date: 22 March 1886
• Court: Chancery Division (Ireland)

CHANCERY DIVISION.

FERGUSON

and

BENYON

Steed v. PreeceELR L. R. 18 Eq. 192.

Hyett v. Mekin 25 Ch. Div. 735-742

Mordaunt v. Benwell 19 Ch. Div. 302.

Curteis v. Wormald 10 Ch. Div. 172.

Mildmay v. Quicke 6 Ch. Div. 553.

Batteste v. Maunsell Ir. R. 10 Eq. 97,314.

Atwell v. AtwellELR L. R. 13 Eq. 23.

Fellow v. Jermyn W. N. 1877,P. 95.

Field v. BrownENR 27 Beav. 90.

Steed v. PrecceELR L. R. 18 Eq. 192.

Scott v. ScottUNK 9 L. R. Ir. 367.

Foster v. Foster 1 Ch. Div. 588.

Curteis v. Wormald 10 Ch. Div. 172.

Scott v. ScottUNK 9 L. R. Ir. 367.

Hyett v. Mekin 25 Ch. Div. 172.

Curteis v. Wormald 10 Ch. Div. 172.

Mordaunt v. Benwell 19 Ch. Div. 302.

Field v. BrownENR 27 Beav. 90.

Scott v. ScottUNK 9 L. R. Ir. 367.

Steed v. PreeceELR L. R. 18 Eq. 192.

Ackroyd v. Smithson 1 Br. C. C. 503.

Richardson v. NixonUNK 7 Ir. Eq. Rep. 620.

Real estate Conversion Order for sale, made by consent of parties, and for benefit of infants interested Covenant to settle property during corerture.

FERGUSON v. BENYON. Real estate-Conversion-Order for sale, made by consent of adult parties, and for benefit of infants interested - Covenant to settle property during coverture. Under the limitations of a settlement certain real estate stood limited, after the estate for life of T. F., to his children, as he should appoint, and in default of appointment, amongst them equally. In 1853 E., a daughter of T. F., marÂÂried R. S., and, by the settlement executed on her marriage, R. S. covenanted that if at any time during the coverture he should become entitled in possession, in right of his wife, to any real or personal estate exceeding 100 in value, he would convey the same to the trustees of the settlement on the trusts thereof. T. F. afterwards died, having made a will and codicil purporting to exercise his power of appointment ; and in a cause petition suit to carry out the trusts of the settlement of 1827, and the will and codicil of T. F., it was declared that the testamentary appointment operated to create a life estate in all the real estate subject to the settlement in J. S. F., T. F.'s eldest son, and that, subÂÂject to such life estate, T. F.'s children were entitled to the settled property in equal shares of one-ninth each ; and, by the consent of the adult defendants in the suit, comprising all the children of T. F., and on the statement of counsel on behalf of certain infants interested in the property, that a sale would he for their benefit, the real estate, subject to the settlement, was ordered to be sold, and a sale thereof took place accordingly. E., the wife of R. S., died intestate in the lifetime of J. S. F., leaving her surviving her eldest son A. (who also died intestate in the lifetime of J. S. F.) and a second son W. On the death of J. S. F., E.'s one-ninth share in the proceeds of sale being claimed, first, by her administrator ; secondly, by the trustees of her settleÂÂment ; thirdly, by the administrator of A. ; and, fourthly, by W., as A.'s heir-at-law: Held, first, that E.'s one-ninth share, not having fallen into possession durÂÂing the eoverture, was not captured by the covenant to settle after-acquired property contained in the settlement ; secondly, that the sale ordered in the cause petition suit being for the convenience of the parties, and not otherÂÂwise necessary for the purposes of the suit, was not in the nature of a judicial sale, and therefore worked an absolute conversion, and that, consequently, the administrator of E. was entitled to her share of the proceeds of sale. BY indenture dated. the 10th February, 1827, certain lands, Vol.. XVII.] CHANCERY DIVISION. 213 held under four several indentures of lease, bearing date the 10th V.-C. February, 1827, for three lives renewable for ever, were granted 1886. unto John Francis Ferguson and Thomas Benyon, their heirs and FERGUSON v. assigns, upon trust (after the marriage of Thomas Ferguson and BE/4mm Emma Benyon), to pay the rents, renewal fines, and to renew the said. leases from time to time and subject thereto, upon trust for Thomas Ferguson for life, and after his death, upon trust to pay a jointure of 700 a-year to Emma Benyon for her life, and subÂÂject thereto, upon trust for the children and issue of said marÂÂriage, as the said Thomas Ferguson should, by deed or will, appoint, and in default, as Emma Benyon should appoint, and, in default of any appointment under the foregoing powers, and so far as any such appointment should not extend, then in trust for all and every the child and children of the said marriage, share and share alike, and their several and respective heirs and assigns. The said indenture contained a power enabling the said trustees and the survivor of them, after the death of Thomas Ferguson, at their or his sole discretion, to sell all or any part of the lands comprised in said indenture, and to invest the money to arise by such sale in purchase of other hereditaments in England, Ireland, or Wales, of an indefeasible inheritance, in fee-simple, in possession, or of lands of leasehold or copyhold tenure. And it was declared that the said trustees and the survivor of them, and the heirs and assigns of such survivor, should stand seized and possessed of the hereditaments so to be purchased for the same trusts, intents, and purposes as were thereinbefore declared conÂÂcerning the lands so sold; and it was lastly provided that, until the...