Fitzgerald v Fitzgerald

• Jurisdiction: Ireland
• Judge: M.R.
• Judgment Date: 16 December 1901
• Date: 16 December 1902
• Court: Chancery Division (Ireland)

FITZGERALD

and

FITZGERALD

Chancery Division

Appeal

Settlement — Rectification — Mistake — Limitation of real estate without words of inheritance — "In tail" — No evidence of intention dehors the deed.

Annesley v. AnnesleyUNK 31 L. R. Ir. 457.

Averall v. Wade Ll. & G. temp. Sugden, 252.

Barstow v. Kilvington 5 Ves. 593.

Bird's TrustsELR 3 Ch. D. 214.

Champ v. ChampUNK 30 L. R. Ir. 72.

Coates v. Kenna I. R. 7 Eq. 113.

Doe v. MartinENR 4 T. R. 39, at p. 65.

Doran v. Ross 1 Ves. Jun. 57.

Earl Bradley v. Earl RomneyENR 30 Beav. 431.

Ethel and Mitchell's and Butler's ContractELR [1901] 1 Ch. 945.

Ex parte RiceDLTR 30 I. L. T. R. 57.

Fenton v. Fenton 1 Dr. & Walsh, 66.

Holliday v. OvertonENR 14 Beav. 467.

Marquis of Breadalbane v. Marquis of ChandosENR 2 My. & Cr. At p. 739. [404.

Meyler v. MeylerUNK 11 L. R. Ir. 522.

Milner v. Milner 8 Ir. Eq. R. 488.

Owen v. SmythENR 2 H. Bl. 594.

Phillips v. James 3 DeG. J. & S. 72; 2 Dr. & Sm.

Re Bennett's EstateIR [1898] 1 I. R. 185.

Re Whiston's SettlementELR [1894] 1 Ch. 661.

Shelly's CaseUNK 1 Rep. 93 (b).

Taggart v. Taggart 1 Sch. & Lef. 84.

Uvedale v. HalfpennyENR 2 P. Wms. 151.

Van Grutten v. Foxwell [1897] App. Cas. 677.

Wheeler v. DukeENR 1 C. & M. 210.

VOL. /.] CHANCERY DIVISION. 477 FITZGERALD v. FITZGERALD. M. R. 1901. Settlement—.Rectffication—Mistake—Limitation of real estate without words June 27. of inheritance—" In tail"—No evidence of intention dehors the deed. By a marriage settlement, executed in the year 1859, lands belonging to the sister of the husband were, subject to her life estate, limited to the husband for life, with remainder (in default of exercise of a power of appointment given to him), if there should be only one child of the marriage, to such child "in tail." The only interest limited back to the settlor was a general power of appointment in default of issue of the marriage. A power of sale and a leasing power were given to the trustees exercisable during the respective lives of the two tenants for life, with their respective consents, and during the minority of any child of the marriage. There was no evidence of the intention of the parties apart from the settlement itself, the instructions on which it was preÂpared not being forthcoming, and the solicitor who prepared it, as well as the parties to it, being dead. There was only one child of the marriage, the plaintiff, who brought this action against the heir-at-law of the settlor and the trustees, seeking to have the deed reformed by the insertion of proper words of limitation, so as to confer on her an estate tail in the lands : Held (by the Court of Appeal, affirming the decision of the Master of the Rolls), that the deed itself afforded evidence of the intention of the parties sufficient to enable the Court to rectify the mistake and to reform the settleÂment by the introduction of technical words of limitation, so as to confer an estate tail on the plaintiff. In re Bird's Trusts (3 Ch. D. 214) approved and followed. TRIAL OF ACTION. This action was brought by the plaintiff, Helen Maria Fitzgerald, seeking—(1) a declaration that the settlement exeÂcuted upon the marriage of her father and mother should be rectified and reformed in such manner and form as that in the events that had happened she should take thereunder an estate tail in the property thereby settled ; (2) a declaration that by the limitation in the said settlement contained in default of appointÂment by her father, Stephen Fitzgerald, if there should be only one child of the marriage, it was intended to confer on such child, not a life estate, but an estate tail, and that the said indenture 1902--Vor.. I. 2 L 478 THE IRISH REPORTS. [1902. M. R. ought to be rectified by reading the same as if the said limitation 1901. were framed in the words, " To the use of such child and the heirs FITZGERALD of his or her body"; and (3) that a copy of such declaration should V. FITZGERALD. be endorsed on the said settlement. By indenture, dated the 23rd day of September, 1859, and made between Maria Fitzgerald of the first part, Stephen Fitzgerald, her brother, of the second part, Wm. Talbot Crosbie and S. M. Hussey (thereinafter called " the trustees ") of the third part, being a settlement executed in contemplation of a marriage then intended, and shortly afterwards celebrated, between the said Stephen Fitzgerald and Margaret Story—the said Marat. Fitzgerald granted unto the trustees and their heirs the lands of Kilbride Pass, therein described, to hold the same unto the said trustees and their heirs TO THE usr: of Maria Fitzgerald, her heirs and assigns, until the said intended marriage, and from and after the solemnization thereof TO sum USES as Maria Fitzgerald should, in the event of her marriage, appoint, and subject thereto TO THE USE of Maria Fitzgerald for life, with remainder TO THE USE of Stephen Fitzgerald for life, with remainder limited verbatim in the words following:—"To THE USE of the child or all or such one or more of the children or other issue born in the lifetime of the said Stephen Fitzgerald, or his now intended wife, of the said now intended marriage for such estates or estate, and in such shares and proportions and manner and form in every respect as the said Stephen Fitzgerald shall by deed or deeds or testamentary instrument appoint, and in default of and until such appointment, and so far as any such appointment shall not extend if there be only one child of the said now intended marriage TO THE USE of such child in tail." The marriage settlement next provided that if there should be two or more children of the intended marriage (so far as Stephen Fitzgerald should not appoint), the lands should go To THE USE of all, every, or such or one or more of such children or other issue as aforesaid of the marriage for such estates, and in such shares as Maria Fitzgerald, in case she should survive Stephen Fitzgerald, should by deed or will appoint, and in default of such appointÂment "TO THE USE of all the children of the said intended marriage who shall attain the age of twenty-one years as tenants in common Vor.. I.] CHANCERY DIVISION. 479 in tail, and for default of such issue TO SUCH USES upon such trusts, Al. R. and for such ends, intents, and purposes, and under and subject 1901. to such powers, provisos, and declarations, as the said Maria EnzGyERIT'D Fitzgerald, notwithstanding her coverture, shall by will or testa- FITZGERALD. mentary instrument appoint." The settlement then conferred certain powers on the trustees for the management of the premises, the maintenance and educaÂtion of the children of the marriage, and the accumulation and investment of the rents and profits of the lands. It enabled Maria Fitzgerald during her life, and after her death Stephen Fitzgerald during his life, and after the death of the survivor, the trustees during the minority of any child of the marriage, to make leases of the lands. It provided that the trustees might sell the lands thereby settled with the consent of Maria Fitzgerald during her life, and after her death with the consent of Stephen Fitzgerald during his life, and after the death of the survivor of them, during the minority of any child of the marriage at the discretion of the trustees, and should lay out the money received upon any sale in the purchase of 'other lands to be settled to the uses, upon the trusts and subject to the powers thereby limited, and that until such money should be so laid out the trustees should invest the same and pay the income thereof as therein mentioned. Maria Fitzgerald died on August 15, 1893, without having ever been married, and without having made, or purported to make, any further or other disposition or appointment, by will or otherwise, affecting the said lands. Her will, dated April 10, 1885, and proved with six codicils thereto, on September 26, 1893, did not in anywise deal with the lands, and contained no residuary devise of real estate. Stephen Fitzgerald died on December 17, 1893, without having exercised the power of appointment conferred on him by the settlement, and leaving him surviving the plaintiff, who was the only child born of the marriage solemnized between him and Margaret Story. The plaintiff was born in the year 1861. During the lifetime of Maria Fitzgerald the lands were sold under the power of sale in the settlement, and the proceeds inÂvested in Railway Stock in the names of the trustees. On June 30, 1894, the plaintiff was declared to be of unsound 2 L 2 480 THE IRISH REPORTS. [1902. M. It. mind by an order of the Lord Chancellor of Ireland made " in 1901. the matter of Helen Maria Fitzgerald, a person of unsound mind," and in pursuance of a subsequent order made in the same matter v. FITZGERALD. the trustees transferred the said Railway Stock to credit of the lunacy matter, and separate credit of the trusts of the said settlement. The plaintiff subsequently recovered her reason, and on the 24th day of February, 1900, was by an order made in the said matter discharged out of lunacy. On the 10th of March, 1900, she executed a disentailing deed, which was subsequently enrolled, by which she disentailed the said sum of Railway Stock. The plaintiff then applied in the said lunacy matter to have the said Railway Stock transferred out of Court to her, and that if necessary the settlement should be treated as rectified so as to confer on her an estate tail in the property. The...