Gaussen and French v Ellis and Others

• Jurisdiction: Ireland
• Judgment Date: 29 May 1930
• Date: 29 May 1930
• Docket Number: (1926. No. 4137.)
• Court: Supreme Court (Irish Free State)

S. C., I.F.S.]

Gaussen and French

and

Ellis and Others

Re-settlement - Implication of cross-remainders -Limitations imported into settlement by reference to another instrument - Executory declaration of trust - Nature of disentailed money - Conversion - Fines and Recoveries (Ir.) Act, 1834 (4 5 Wm. 4, c. 92), s. 63.

Testator directed his trustees to receive the whole of the income, rents, and profits arising from all his property, and to pay thereout a jointure to his widow and annuities to his two eldest sons. In addition to this annuity, the eldest son, B., was given certain powers of jointuring and providing for younger children. Subject to these payments, the trustees were to use the rents and profits of said property to pay off certain legacies bequeathed by testator to his younger children. Of the surplus that remained when these annual sums and legacies had been provided for, a sum of £1,200 was directed to be set aside each year during the lifetime of B. to form an "accumulated fund," which was to be used "to purchase any eligible property which may offer for sale in the County of Tyrone," and whatever thereafter remained was to be divided equally amongst all the children the testator living at his death. This accumulation was to cease on the death of B., and the limitations in the will in regard to the testator's estates in Tyrone and Clare and to the accumulated fund (or any estate purchased therewith) were to come into operation. These limitations were to the first and every other son of B., and the respective heirs male of their bodies, according to priority of birth, followed by an estate for life for R., the testator's third son, with remainder to his first and every other son successively and their heirs male, and similar trusts in regard to the testator's fourth and fifth sons, A. and C.and their heirs male. Testator further directed that, "in default of such issue [of C.], remainder in paying over the aforesaid income of said trust estate and funds to my daughters for their natural lives respectively as tenants in common and as their respective separate estates, free from the control and debts of any husband which they may respectively marry; remainder to my said trustees and their heirs during the lives of my said daughters, to preserve contingent remainders from being defeated or destroyed; remainder in paying over the aforesaid income of the said trust estates and funds to the first and every other son of my said daughters...