O'Hea Slattery

• Jurisdiction: Ireland
• Judgment Date: 18 May 1894
• Date: 18 May 1894
• Court: Court of Appeal (Ireland)

O'Hea

and

Slattery (1).

Appeal.

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 — Personalty — Limitation to the use of the husband and intended wife, and the husband's children by former marriage and children of intended marriage — Joint tenancy — Springing use — Bankruptcy of husband.

A settlor assigned to trustees tenancies from year to year and personal chattels, to hold upon trust for the settlor until his then intended marriage, and after the solemnization thereof to the use of the settlor, his intended wife, and the children of the settlor by a previous marriage and any issue to be born of the intended marriage:—

Held (affirming the decision of the Vice-Chancellor), that the husband and wife, with the children of the first and second marriages, took as joint tenants, the class of unborn children to be opened when and as necessary, so as to include new members.

Appeal from an order of the Eight Hon. the Vice-Chancellor of Ireland, dated October 31st, 1893, in so far as it declared that Thomas Slattery and Johanna Slattery, otherwise Boland, his wife, and the children of the said Thomas Slattery, by his former marriage, and any children of his second marriage as the same should be born, were entitled to the property comprised in the settlement of February 11th, 1893, in joint tenancy.

By an indenture dated February 11th, 1893, and made between Thomas Slattery of the first part, Johanna Boland (widow) of the second part, and Richard Coghlan and Patrick O' Hea of the third part, reciting that Thomas Slattery was possessed of two several holdings held under statutory tenancies from year to year, and also of the chattels specified in the schedule to the said indenture, and reciting that a marriage was intended to be solemnized between the said Thomas Slattery and Johanna Boland, and that upon the treaty therefor it was agreed that the interest of the said Thomas Slattery in the said yearly tenancies, and the said chattels, should be settled upon the trusts thereinafter declared, in pursuance of the said agreement the said Thomas Slattery, as beneficial owner (with the approval of the said Johanna Boland), assigned

unto the said Richard Coghlan and Patrick O'Hea the said lands held as aforesaid, and the chattels specified in the schedule, to hold upon trust for the said Thomas Slattery until the said intended marriage, and after the solemnization thereof to the use of the said Thomas Slattery and Johanna Boland, and the children of the said Thomas Slattery, and any issue that might be born of the said intended marriage. And it was thereby agreed that the power of appointing a new trustee or trustees of the said indenture should be exerciseable by the said Thomas Slattery and Johanna Boland during their joint lives. And the trustees and trustee for the time being might from time to time for the advancement of any child or children of the said Thomas Slattery, or for any purpose essential to the improvement and better and more efficient working of said lands raise such sum or sums of money as in their judgment the necessities of the case should require, such sum or sums not to exceed in the aggregate £500, for the entire or part of which they might in their discretion require the bond of the said Thomas Slattery.

The children of Thomas Slattery mentioned in the said indenture were his children by a former marriage. Shortly after his marriage with Johanna Boland, and before the birth of any issue of the said marriage, Thomas Slattery became bankrupt.

The trustees of the said settlement issued an originating summons before the Vice-Chancellor, asking the Court to determine the following questions arising in the administration of the trusts of the said settlement, to wit:—“1. Have the trustees, on the true construction of the said deed, a discretionary power to determine in what proportion or to what extent Thomas Slattery and Johanna Boland are entitled to participate in the income or capital of the property put in settlement? 2. If the trustees have no discretion as expressed, what is the extent of the interest that Thomas Slattery takes in the said property? What is the extent of the interest of Johanna Boland, and of the children of the said marriage?” By his order of October 31, 1893, now appealed from, the Vice-Chancellor answered the first of these questions in the negative, and declared in answer to the second question that Thomas Slattery and Johanna Slattery, otherwise Boland, his...