Ferguson v Ferguson

• Jurisdiction: Ireland
• Judgment Date: 05 August 1886
• Date: 05 August 1886
• Court: Chancery Division (Ireland)

Appeal.

FERGUSON

and

FERGUSON.

Edwards v. HammondENR 3 Lev. 132.

Duffield v. DuffieldENR 3 Bli. (N. S.) 260.

Festing v. AllenENR 12 M. & W. 279.

Browne v. BrowneENR 3 Sm. & G. 568.

Holmes v. Prescott 33 L. J. (N. S.) Ch. 264.

Perceval v. percevalELR L. R. 9 Eq. 386.

Cunliffe v. Brancker 3 Ch. Div. 393.

Andrew v. Andrew 1 Ch. Div. 410.

Lechmere and Lloyd 18 Ch. Div. 524.

Festing v. AllenENR 12 M. & w. 279.

Williams V. watersENR 14 M. & W. 166.

Astley v. Micklethwait 15 Ch. Div. 59.

Gilliland v. Crawford Ir. R. 4 Eq. 35.

Hibbert v. CookeENR 1 Sim. & St. 552.

Dent v. DentENR 30 Beav. 363.

Jese v. Lloyd 48 L. T. Rep. 656.

Dunne v. DunneENRENR 3 Sm. & G. 22; on appeal, 7 De G. M. & G. 207.

Caldecott v. BrownENR 2 Hare 144.

Vyse v. FosterELR L. R. 7 H. L. 318.

Nairn v. MarjoribanksENR 3 RUSS. 582.

Caldecott v. BrownENR 2 Hare, 144.

Will — Contingent remainder — Lapse — Tenant for Life and remainderman — Unfinished houses — Expenditure in completion.

552 LAW REPORTS (IRELAND). [L. R. I. Land Judges. I therefore hold that the estate goes over to the four sisters, and 1885. the order will be to allow the cause shown, with costs. In re MOORE'S ESTATE. Solicitor for the petitioner : Hr. Wm. Fitzsimons. Solicitor for Elizabeth Moore : Hr. Wm. Sterne. M. R. FERGUSON v. FERGUSON. ]885. Nov. 12, 13. Will-Contingent remainder-Lapse-Tenant for life and remaindermanÂDee. 3. Unfinished houses-Expenditure in completion. Appeal. A testator, being seized of lands held in fee-simple, under leases for 1886. lives renewable for ever, and of estates subject to mortgages, devised all May 4, 5. his real and freehold estate to his eldest son (if any) who should attain June 30. Aug. 5. the age of twenty-one years, or be married, and failing such son, in equal shares to such daughters of his who should attain twenty-one, or be married, for their separate use for their lives ; and if only one daughter, who should attain twenty-one or marry, the whole to be for such one daughter. Failing all sons and daughters who should attain twenty-one, or be married, then to his sisters in equal shares, for their separate use, for their respective lives ; with remainder, as to their respective shares, to their respective eldest sons who should respectively attain the age of twenty-one years, or be married; and failing such sons, to their respective daughters in equal shares per stirpes. And as to all the rest, residue, and remainder of his property, chattels, goods, money, effects, and personal property of any description, he gave and beÂqueathed the same to his executors and trustees, in trust for all his children by his wife who should attain the age of twenty-one years or be married, in equal shares ; and if only one such child, in trust, as to the whole, to such one child ; and if no such child should attain the age of twenty-one, or be married, in trust to divide the said residuary and personal estate into five equal parts, and pay the income of one share to his mother for life, and after her death the principal for the benefit of his sisters and their issue ; and upon further trust, as to the remaining shares, to pav the income to and among his sisters, in equal shares, for their respective lives, for their sole and separate use during their lives ; with remainder, as to the principal, to their respective issue, in equal shares per stirpes. The testator died without issue ; his four sisters survived him, two of whom died, leaving sons under twenty-one and unmarried : Held, (1) that the remainders to the sisters' sons in the fee-simple estate were contingent remainders, which failed as to the sons of the deceased sisters ; but VOL. XVII.] CHANCERY DIVISION. (2) That the contingent gifts in the renewable freeholds and equitable estates were not destroyed by the expiration of the life estates before the hapÂpening of the contingencies ; (3) That the lapsed shares of the fee-simple estates passed by the residuary clause. The testator had commenced to build, upon part of his real estate, a terrace of thirteen houses, and expended upon them a large sum of money. These houses were unfinished at the testator's death, and the executors, at the request of the tenants for life, laid out the sum of £2314 on their completion, and the houses were then let at a good rent. In a suit for the administration of the testator's real and personal estate, an inquiry was directed as to the circumstances under which the expenditure by the executors had been made, and it was proved that at the death of the testaÂtor the thirteen houses in question were unfinished, and were without doors or windows, and were in such a condition that they became the resort of bad characters, and were being knocked down and becoming dilapidated ; and, on the evidence, the Court of Appeal came to the conclusion that if the houses had not been completed, the expenditure upon them by the testator would have been totally lost, and the portion of real estate on which the houses stood would have become valueless : Held (1), by the Master of the Rolls and by the Court of Appeal, that the expenditure by the executors was an unauthorized application of the personal estate, and that, as it was incurred at the request of the tenants for life of the real estate, they were bound to recoup the executors. Held (2), by the Court of Appeal (reversing the decision of the Master of the Rolls), that the expenditure came within the principle of salvage, and that the tenants for life of the real estate were entitled to a lien upon the houses so completed for such expenditure incurred in their completion ; but, having regard to the perishable nature of house property, that such lien should be reÂpaid within fifty years. HEARING on further consideration. Action by Mrs. Ferguson and Mrs. Lord, legatees and devisees of James Anderson, for the administration of the testator's real and personal estate. The material portions of the will of the testator, the decree made on the first hearing, and the Chief Clerk's certificate will be found sufficiently stated in the judgment of the Master of the Rolls, in which the arguments and authorities cited are fully noticed. Mr. Piers P. White, Q. C., and Mr. .J. J. Shaw, for the plaintiffs. 554 LAW REPORTS (IRELAND). [L. 11. I. M. R. Serjeant Campion, Mr. Dodd, Q.C., and .Mr. A. H. Bates, for 1885. the executors. FERGUSON V. FERGUSON. Mr. Twigg, Q.C., and Mr. J. H. Moore, for the infant children of Mrs. Lord. Mr. Jellett, Q.C., and Mr Hart, for J. A. Brown, an infant. Mr. Jackson, Q. C., and Mr. Hume. for James Arthur. Dec. 3. THE MASTER OF THE ROLLS : This suit commenced by bill, filed in 1873, and amended in 1875, now comes before me on further consideration. The amended bill prayed that the real and personal estate of the testator James Anderson, might be administered, and that the trusts of his will should be carried into execution under the direction and decree of the Court, and that the rights of all persons interested under said will should be ascertained,. and that, for that purpose, all necessary accounts might be taken, directions given, and inquiries made, and for an account of the real and personal estate of which the said testator was, at the time of his death, seized and possessed, and of the nature and particulars of such real estate, and of the management of the same, and as to the carrying on and disposal of a felt manuÂfactory, carried on by the testator ; an account of the moneys laid out by Robert Ferguson, in order to prevent the deterioration of the freehold and chattel real estate ; and of the improvements thereof ; and that if necessary the real and personal estate should be adjusted so as to enable the said Robert Ferguson and George Lord to be indemnified from such expenditure, &c. The decree was made in March, 1876. Besides the ordinary accounts in an administration suit, it directed the following inquiries : No. 9, An inquiry as to the condition in which thirteen unfinished houses in the course of building, the property of the testator mentioned in the 9th paragraph of the bill, were at the time of his death ; No. 10, An inquiry whether such houses were being built under a contract with any builder ; No. 11, An VOL. XVII.] CHANCERY DIVISION. inquiry as to the circumstances under which the executors Robert Ferguson and George Lord completed the building of those houses or any of them ; No. 12, An account of the actual amount of money spent in the completion of those unfinished houses by the said Robert Ferguson and George Lord ; No. 13, An inquiry whether the estate on which those unfinished houses stood was benefited by their completion, and to what extent ; No. 14, An account of any sums of money spent in draining and in making roadways, streets, and footpaths, or forming open spaces or enclosures, or in laying out ground, or in works of a similar character, spent by the said Robert Ferguson and George Lord in connexion with the testator's estate, and under what circumÂstances ; No. 15, An inquiry whether such latter expenses were caused by any notice on the part of the Belfast Corporation, or under any other, and what state of facts. The Chief Clerk, in answer to these inquiries has certified :- " No. 9, At the time of testator's death the condition of the thirteen unfinished houses mentioned in the plaintiffs' bill was as follows :-Five of the said houses, known as Lorne-terrace, were erected to the first floor, the joists being laid on the walls ; sculÂleries were also built, but none of said five houses had doors or windows fixed ; the remaining eight of said houses, then known as Grafton-street, but now known as Thorndyke-street, had the brickÂwork almost completed, the flooring joists almost completed, the roofs completed, the flooring of ground and first storey partly laid, the return-rooms built, slated, and flooring joists in sculleries and pantries, and the yard walls completed ; but...