Horan v Horan

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date25 July 1935
Date25 July 1935

Supreme Court.

Horan v. Horan
EDWARD HORAN
and
MARY HORAN (1)

Estate pur autre vie - Devolution of estate - Special occupant - Intestacy - Statute of Frauds (7 Wm. 3, c. 12 (Ir.)), sect. 9 - Wills Act, 1837 (7 Wm. 4& 1 Vict. c. 26), sects. 3, 6.

Appeal from an order of the High Court, dated the 5th April, 1933, affirming a decree of the Circuit Court.

The plaintiff Edward Horan, brought a Civil Bill against the defendant, Mary Horan, claiming to recover possession"of the dwellinghouse at Silver Street, Nenagh, in the County of Tipperary, which is the property of the plaintiff, and possession of which the defendant wrongfully withholds."The Circuit Court Judge (Judge Sealy) dismissed the Civil Bill. The plaintiff appealed to the High Court and that Court (Sullivan P. and O'Byrne J.) dismissed the appeal, but certified that their decision involved a question of law of such importance as to be fit to be the subject of an appeal to the Supreme Court. The facts are fully stated in the judgment of Kennedy C.J.

The judgment of Sullivan P., with which O'Byrne J. concurred, was as follows:—

The plaintiff appealed to the Supreme Court.

If land be demised to A and his heirs, to hold to him and his heirs pur autre vie, and A by his will devises it to B, simpliciter, by words which indicate an intention on the part of A to pass all his estate, and B dies intestate in the lifetime of cestui que vie, the land passes to the heir-at-law of B.

So held by a majority of the Supreme Court (FitzGibbon and Murnaghan JJ.) reversing the High Court, Kennedy C.J. stating that he would hold to the contrary if he considered that the facts of the case were wholly covered by this statement of the law, which he was of opinion they were not, and he held on the facts that the lands in question passed to the administrator of B under sect. 6 of the Wills Act.

Per Murnaghan J.: A choice must be made between two opposing principles: one, that where the heir is designated as special occupant this special occupancy is intended to attach until it is altered by a limitation of an express nature, the other view is that each disposition must create the special occupant afresh and in the absence of mention of the special occupant the statute gives the estate to the executors.

King v. KingIR, [1899] 1 I. R. 30, followed.

In re Inman, Inman v. Inman, [1903] 1 Ch. 241, and dictum of Lord Davey in Earl of Mountcashel v. More-Smyth, [1896] A. C. 158, not followed.

Sullivan P. :—

On the question to be determined in this appeal there is a conflict of authorities in this country.

If the opinions expressed by FitzGibbon L.J. and Holmes L.J. in King v. King(2) are correct they would

entitle the appellant to succeed in this case, but they seem to conflict with the decision in Croker v. Brady(1) which was not cited in King v. King(2). In these circumstances I think we should follow the most recent Irish decision, viz., Murray v. Condren(3) which followed Croker v.Brady(1).

I am, therefore, of the opinion that this appeal should be dismissed.

Cur. adv. vult.

Kennedy C.J. :—

By an indenture of lease, made on the 28th of November, 1795, between William Smyth of the one part and John Griffin of the other part, William Smyth demised to John Griffin the dwellinghouse in Silver Street, Nenagh, in the County of Tipperary, the subject of this action, to hold unto the said John Griffin his heirs and assigns during three lives therein named and the survivors and survivor of them (all long since dead), and the lives from time to time

for ever thereafter to be added thereto, at the yearly rent of £8 10s. 0d., with a covenant for perpetual renewal thereof on payment of one quarter of a year's rent by way of renewal fine.

The lessor's estate and interest in the premises became vested in Aquilla Smith who, by an indenture, made on the 30th of July, 1846, between the said Aquilla Smith of the one part and Thomas Ryan and Bridget Ryan, otherwise Griffin his wife (she being the heir-at-law of the original lessee John Griffin) of the other part, pursuant to the covenant in the lease for perpetual renewal, all the original cestui que vies having died, demised the premises as described in the lease to the said Thomas Ryan and Bridget Ryan to hold unto the said Thomas Ryan and Bridget Ryan and their assigns according to the estate and interest of the said Thomas Ryan and Bridget Ryan therein and to the heirs and assigns of the said Bridget Ryan for the three lives therein named and such lives as should be added thereto by virtue of the covenant for perpetual renewal in the lease.

By an indenture of conveyance made on the 23rd of July, 1867, between the said Thomas Ryan and Bridget Ryan otherwise Griffin his wife of the first part, Mary Horan wife of Edward Horan of the second part, and John O'Brien of the third part, reciting the renewal lease of the 30th of July, 1846, and that Mary Horan had contracted and agreed with Thomas Ryan and Bridget Ryan for the absolute purchase of their estate and interest in the said dwellinghouse and premises for the price therein mentioned and had desired that the same be conveyed to the said John O'Brien as trustee upon trust and for the purposes thereinafter mentioned, it was witnessed that the said Thomas Ryan and Bridget Ryan for the considerations therein mentioned, granted, bargained and sold etc., unto the said John O'Brien and to his heirs and assigns the dwellinghouse and premises as described in the lease to hold unto the said John O'Brien, his heirs and assigns for the lives named in the renewal lease and every life to be from time to time thereafter added thereto "nevertheless upon the trusts and to and for the uses, intents, and purposes following, that is to say, for the sole and only use and benefit of the said Mary Horan notwithstanding her coverture and to permit and suffer the said Mary Horan to dispose of said dwellinghouse and premises and the estate and interest therein in such manner as the said Mary Horan shall deem fit and proper." This deed contained a covenant for further assurance in favour only of the said John O'Brien, his heirs and assigns.

Mary Horan, whose husband pre-deceased her, died in the year 1910, having previously made her will, dated the 17th of March, 1904, whereof she appointed her son James Horan sole executor. Having bequeathed several pecuniary legacies, including a sum of £60 to her son Edward Horan, she made a residuary disposition in the terms following:—

"All the rest, residue and remainder of my real and personal estate (subject as hereinafter directed) I hereby give, devise and bequeath to my son James Horan absolutely and I appoint him my residuary legatee and devisee but I hereby direct that in case my son Edward Horan leaves my house at Silver Street immediately after my death and gives my executor no trouble about the possession of my house in Silver Street he is to get a further sum of £30."

The son Edward was in fact her eldest son and her son James was her youngest son.

After the death of his mother, James Horan went into possession of the house at Silver Street, being the property comprised in the lease already quoted.

James Horan died intestate in the year 1928. No person has, up to the present, extracted any grant of administration to his estate. The defendant, Mary Horan, who is one of his next-of-kin according to the statute for the distribution of intestate's estates, has been in possession of the house at Silver Street, Nenagh, comprised in the lease since his death up to the present time. The heir-at-law of the said James Horan is his brother Edward Horan, the plaintiff.

Edward Horan, claiming as heir-at-law of James Horan, issued a Civil Bill in the Circuit Court at Nenagh in the County Tipperary (Title Jurisdiction) to recover possession of the dwellinghouse and premises comprised in the lease from Mary Horan the defendant. The case was heard by Mr. Circuit Judge Sealy and, after an elaborate legal argument, he held that the plaintiff was not entitled in his character of heir-at-law to recover possession of the premises and dismissed the Civil Bill. The plaintiff appealed to the High Court. The appeal was heard by the President of the High Court and Mr. Justice O'Byrne who dismissed the appeal but certified that the decision involved a question of law of such importance as to be fit to be subject of an appeal to the Supreme Court. Pursuant to that certificate the plaintiff has carried his appeal to this Court.

The learned Circuit Judge held that the rule is that the terms of the last conveyance determine the quality of an estate pur autre vie, and, therefore, inasmuch as the con veyance of the 23rd of July, 1867, did not limit the property to the heirs of Mary Horan and she did not in her will name a special occupant, the plaintiff was not entitled to succeed. He also considered he was bound byMurray v. Condren(1). The opinion of the High Court was stated by the President. He said that the opinions of FitzGibbon L.J. and Holmes L.J. in King v. King(2),seemed to conflict with the decision in Croker v. Brady(3),which was not cited to them, and that the High Court should follow the most recent Irish decision, Murray v.Condren(1) which followed Croker v. Brady(3).

It is not a little surprising that the devolution on death of property held under this tenure by which (especially coupled with a covenant for perpetual renewal) a large part of the land of Ireland has been held for several centuries (see Lyne on Leases for Lives, Dublin, 1837; at pp. 1 et seqq., note (1)), and upon which a vast amount of learning has been expended in the Courts and in the books, should in our day raise a question of law in a case, one would suppose, of common occurrence and that a question upon which we are told that there is a striking conflict of judicial opinion. Though the question has been raised in respect of a very small piece of property indeed, it has...

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