Haverty v Curtis

• Jurisdiction: Ireland
• Judgment Date: 13 January 1894
• Date: 13 January 1894
• Docket Number: (1893. No. 967.)
• Court: Chancery Division (Ireland)

Haverty

and

Curtis.

M. R.

(1893. No. 967.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Settlement — Portion — “Payable on marriage, or at such time as settlor should appoint” — No appointment — Held vested, subject to divesting on death unmarried — Misrecital in will not an execution of power.

A, by settlement on the occasion of his second marriage, conveyed lands to trustees, upon trust to raise a sum of £600 for B, a daughter of his first marriage, “to be paid and payable to her on her marriage, or to be payable at such other time as he should by deed or will appoint”; and, subject thereto, upon the usual trusts for the wife and children of the second marriage.

A, by his will, bequeathed all his property to C, the surviving child of his second marriage, reciting that he made such disposition considering that B had been sufficiently provided for by his marriage settlement, under which she would be entitled to receive the sum of £600 after his death. B survived the testator, and was unmarried;—

Held, upon the construction of the settlement, that B was entitled to a vested interest in the sum of £600, liable to be divested in the event of her dying without having been married, and that the incorrect recital in the will was not an exercise of the power of appointment

Adjourned Summons.

This was an application by way of originating summons on behalf of the plaintiff, Lina Haverty, cestui que trust under a settlement of December 10th, 1860, made on the second marriage of Martin Haverty, for a declaration—1, that the defendant Mary Haverty, the surviving child of the first marriage of Martin Haverty was not entitled to a vested interest in the sum of £600, charged upon the lands in the settlement; and, 2, that no interest was payable to her unless and until she should marry. The other defendants were Rohert Curtis and Catherine Curtis, the trustees of the settlement. The facts of the case are fully set out in the judgment of the Master of the Rolls.

Kenny, Q. C., and Philip White, for the plaintiff Lina Haverty:—

As to 1, the £600 is a portion charged on real estate, and does not vest till it becomes “payable,” i.e. on marriage, or at a time appointed by the settlor: Theobald on Wills, p. 380. The erroneous recital in the will is not an exercise of the power of appointment: L'Estrange v. L'Estrange (1); Re Webster's Trusts (2); Farwell on Powers, p. 194.

As to 2, the owner of the lands charged is not bound to pay interest on the portion before the period of vesting, or time for payment, which are here the same. It makes no difference whether the portion is secured by settlement or by will: Smith v. Smith (3); Lord v. Lord (4); Theobald on Wills, p. 131.

Piers White, Q.C., and M'Cann, for the defendant Mary Haverty:—

Mary Haverty is entitled to the principal sum of £600, and interest thereon as a paramount charge on the estate of Lina Haverty, who has paid interest on the amount till 1890. This is an exceptional case; if there was no will the Court will not, on the construction of the settlement, deprive the defendant of the provision conferred by it, because it is charged on land, and is not raiseable until the occurrence of a particular event. The settlement and will should be read together.

The settlor recognizes a duty to provide for the children of his first marriage. The settlement was for valuable consideration, and should be treated as a money settlement. The covenant for further assurance could be enforced against the plaintiff as his

executrix, who also takes the ultimate interest in the property. The portion having been created by the settlement, all the settlor had to do was to indicate the time when it was to be paid. The clause in the will is inartificially framed, but the evident intention was to exercise the power, and indicate that it was to be paid on his death: Re Morgan (1); Minchin v. Minchin (2); Pennefather v. Pennefather (3); L'Estrange v. L'Estrange (4); Farwell on Powers, p. 194. Even if the will was not an exercise of the power, the portion vested at the death of the settlor at latest. But for the merger clause it would have vested at the date of the settlement. Payment was postponed for the convenience of the estate. This is an exception to the rule, that in the case of portions charged on real estate the time for payment is the time of vesting. It is not like the cases where it was held that the personal representative of a deceased child was not entitled to the portion, because it was not wanted; here it is wanted. In any case the defendant is entitled to interest. [They cited on this branch of the case Mayhew v. Middleditch (5); Hinchinbroke v. Seymour (6); Smith v. Partridge (7); Lowther v. Condon (8); Remnant v. Hood (9); Mathew on Portions, p. 10; Vaizey on Settlements, p. 78; Norton and Elphinstone on Deeds, p. 375.]

Philip White, in reply:—

The argument for the defendant assumes that she is to be treated as a purchaser under the settlement; but this is not so: Re Cameron and Wells (10). The charges created by the settlement are not paramount. The £600 charged in favour of the defendant is to be paid upon marriage, and is therefore in the nature of a contingent gift: Atkins v. Hiccocks (11). As regards interest the settlor may well have intended that the defendant should not have any benefit unless she married. The onus is on the defendant to show that there was an intention to exercise the power.

Kenny, Q. C., and Philip White, for the plaintiff Lina Haverty:—

Piers White, Q.C., and M'Cann, for the defendant Mary Haverty:—

The Master of The Rolls:—

By indenture of marriage settlement dated the 16th. December, 1860, and made between Martin Haverty of the first part, John Rogers of the second part, Kate Mary Rogers of the third part, Gwendoline Haverty and Mary Haverty (one of the defendants) of the fourth part, and Michael Fitzgibbon and Francis Sullivan (trustees) of the sixth part, the lands of Kilbehy, containing about 247 acres statute measure in the county Limerick, of which Martin Haverty was owner in fee, were put in settlement, on the occasion of his second marriage with Miss Rogers. By his first marriage he had two daughters, Gwendoline and Mary, of whom Mary, who is unmarried, is the survivor, Gwendoline having died in 1873. The defendants Robert Curtis and Catherine Curtis have been appointed and now are the present trustees of the settlement, one of the original trustees having died, and the other having declined to act. The settlement, which is a very badly drawn instrument, recites that a marriage was contemplated between Martin Haverty and Kate Mary Rogers, and that John Rogers, the lady's father, had agreed to give to Martin Haverty the sum of £500 as a marriage portion with his daughter, and that Martin Haverty had agreed to settle the said lands of Kilbehy “upon the said Kate Mary Rogers and the issue of the marriage, if any,” as thereinafter expressed “subject to the charges thereout in favour of his daughters the said Gwendoline and Mary Haverty” as thereinafter expressed; and, after reciting that John Rogers had paid to Martin Haverty the said sum of £500, the deed witnesses “that in pursuance of the said agreement and in consideration of the said sum of £500 paid to the said Martin Haverty, and in order to make a provision in life for the said Kate Mary Rogers and the issue of the said marriage, if any, and in further consideration of the sum of 10s. each paid by the said Michael Fitzgibbon and Francis Sullivan to the said Martin Haverty, he the said Martin Haverty doth grant to the said Michael Fitzgibbon and Francis Sullivan all that and those the town and lands of Kilbehy, to hold unto the said Michael Fitzgibbon and Francis Sullivan their heirs and assigns for ever, upon trust out of the said lands to raise two several sums of £400, one of which is to be paid and payable unto each of them the said Gwendoline Haverty and Mary Haverty upon their marriage, provided such marriage, if it takes place in the lifetime of the said Martin Haverty, shall be with the full consent of the said Martin Haverty, or to be payable at such other time or times as the said Martin Haverty shall by deed or will appoint, but neither of the said sums to carry or bear interest during the lifetime of the said Martin Haverty, or unless the said Martin Haverty shall sooner appoint, the said interest not to exceed the rate of five per cent. per annum, and, subject to the said two several charges of £400 and £400, that the said trustees, or other the trustees or trustee of these presents, shall stand and be seized of the said lands upon trust to receive and pay the rents and profits thereout to the said Kate Mary Rogers, during her life, for her separate use and free from the control of the said Martin Haverty, or any other husband with whom she may hereafter intermarry, and from and after the decease of the said Kate Mary Rogers, to pay the said rents to the said Martin Haverty during his life, and after the death of the survivor of them, upon trust as to the said lands and the annual profits thereof (subject to the said two several charges of £400 for them the said Gwendoline Haverty and Mary Haverty as aforesaid) that the said trustees shall stand possessed of the said lands and the annual profits thereof for the children, issue of the said marriage, in such shares and proportions as the said Martin Haverty and Kate Mary Rogers or the survivor shall appoint, and in default of appointment upon trust for the use and benefit of all such children, their heirs and assigns, equally, and in case there shall be but one such child then upon trust for such one only child absolutely and for ever.”

The deed then provides that in default of issue the lands are to be held in trust for the survivor of Martin Haverty and Kate Mary...