Horan v MacMahon

• Jurisdiction: Ireland
• Judgment Date: 05 March 1985
• Date: 05 March 1985
• Court: Chancery Division (Ireland)

Appeal.

Before NAISH, C., and FITZGIBBON and BARRY, L. JJ.

HORAN

and

MACMAHON

Williamson v. CodringtonENR 1 Ves. Sen. 511.

Hales v. CoxENR 32 Beav. 118.

Cray v. MansfieldENR 1 Ves. Sen. 379.

Stannard v. Ullithorne 4 Moore & Scott, 359.

Nanney v. WilliamsENR 22 Beav. 452.

Bulkley v. WilfordENR 2 Cl. & Fin. 102.

Green-Field v. Bates 5 Ir. C. L. Rep. 219.

Lovesy v. Smith 15 Ch. Div. 655.

Hall v. HallELR L. R. 8 Ch. App. 430.

Toker v. Toker 3 D. G. & S. 487.

Armstrong v. Armstrong Ir. Rep. 8 Eq. 44.

Keogh v. M'GrathUNK 5 L. R. Ir. 518. 519.

Bulkley v. WilfordENR 2 Cl. & Fin. 102.

Hall v. HallELR L. R. 8 Ch. App. 430.

Bulkley v. WilfordENR 2 Cl. & Fin. 102.

Toker v. TokerUNK 3 D. J. & S. 487. 491.

Voluntary deed Absence of power of revocation Improvident limitations Solicitor taking an originally remote benefit under a deed prepared by himself Inadequate advice to client, but without fraud Duty of solicitor Bulkley v. Wilford (2 Cl. & Fin. 102).

Von. XVII.] CHANCERY DIVISION. Chancellor gave leave to bring the appeal on behalf of the minor merely puts the appellant for that purpose into the position of an adult, and is no reason for expending the respondents' money upon litigation in which they have been successful. Appeal dismissed with costs. Solicitor for the appellant : Mr. J. Casimir 0' Meagher. Solicitor for the respondents : Hr. MacNamara. HORAN v. MAC MAHON (1). Voluntary deed-Absence of power of revocation-Improvident limitations Solicitor taking an originally remote benefit under a deed prepared by him self-Inadequate advice to client, but without fraud-Duty of solicitor Bulkley v. Wilford (2 Cl. & Fin. 102). C.-a man of full mental capacity, who had been many years married, but had had no children, and was seised of property which, according to the opinion of one eminent counsel, was limited to the use of himself for life, with remainÂÂder to his first and other sons in tail male, with remainder to himself in fee, and, according to another opinion, was limited to himself in tail male-verbally instructed M., a solicitor who had acted generally for him, to prepare a voluntary deed " settling " his property on his (C.'s) three nephews, who were then healthy lads, from sixteen to twenty years of age, brothers of the half-blood of M., and whose father was still living. M. sent instructions to counsel to prepare a deed, barring the entail, And settling the lands in equal shares among the nephews. The deed was prepared by counsel, who, in his draft, suggested that a life estate should, as the first limitation, be reserved to C., and then inserted a limitation in remainder to the three nephews, as tenants in common in fee, with a covenant on the part of C. to hold the grantees free from charges, &c., created, " or to be created," by him, or by anyone claiming under him. The suggestion as to reserving a life estate for C. was adopted, and, in accordance with a request of his, made at the instance of his wife (in a further interview, at which M. informed him that the intended deed could only be "broken" by selÂÂling the property), a limitation giving her a life estate in remainder after C.'s (1) Before NAISII, C., and FITZ GIBBON and BARRY, L.JJ. death was subsequently inserted in the draft. The deed, which contained no power of revocation, was executed in 1852, but was not registered. The three nephews all died intestate and without issue, the last survivor of them in 1864, leaving M. his heir-at-law. C., in 1868, after being further advised by counsel as to the effect of the deed of 1852, and his position with respect to it, executed another voluntary deed, duly registered, to the trustees of the deed of 1852, limiting the property in favour of H., his adopted daughter, but took no pro.. ceedings to set aside the deed of 1852, and died in 1874, and his widow in 1880, In an action, brought by H. in 1882, to have M. declared a trustee for her and others entitled under the deed of 1868 : Held, on appeal (reversing the decision of Porter, M.R.), that, although there was no evidence of fraud or undue influence, it was the duty of M., under the circumstances, to have distinctly called the attention of C. to the advisableness of inserting a clause of revocation in the deed of 1852, and to have pointed out the results which might ensue from its omission ; and that therefore M. could not bold a title depending on the absence of a clause of reÂÂvocation in the deed. Per Fitz Gibbon, L. J. :-Although the absence of a clause of revocation in a voluntary deed is, in itself, a material circumstance-but not more than a circumstance-to be considered in deciding upon its validity, still, in order to get over such absence, the other circumstances must show-(1) that the deed is the free act of a settlor, who knows what he is doing, and (2) either that it is a deed provident and just in itself, or that any apparent improvidence and inÂÂjustice in it is in accordance with the actual intention of the settlor. APPEAL by the plaintiff from the judgment of Porter, M. It, of the 5th March, 1885, dismissing her action, with costs. The pleadings and facts of the case are stated in His Honor's judgment : see 15 L. R. Ir., 471; and also appear fully from the judgments, post. Mr. Jellett, Q. C., and Mr. John Gibson, Q. C. (with them Mr. Orr, Q. C., and Hr. G. V. Hart), for the appellant:- The deed of the 14th June, 1852, which was prepared under the direction of the defendant, acting as the solicitor of Neal T. Coleman, failed entirely to effectuate his intentions. The object of Neal T. Coleman was evidently to provide for the event of his having no children, in which case he desired to make a settlement of the property on his nephews, who at that time were under age. VOL. XVII.] CHANCERY DIVISION. 643 To carry out this intention by means of a voluntary deed, it was 1111)8866a.l. essential that the property should be settled in such a form that in the event of Neal T. Coleman surviving his wife, and contracting got AN V. a second marriage, a provision could be made for his wife and MAC MABON. children. The instructions for the preparation of the deed neither state the age of Neal J. Coleman nor the infancy of his nephews, and the property is not " settled" in any sense of that word,,as it is given as a vested remainder to his three nephews absolutely in fee. According to the defendant's statement, the advisability of insertÂÂing a clause of revocation in the deed, or settling it subject only to a general power of appointment in Neal T. Coleman, never occurred to his own mind, and was never presented to the mind of the settlor. The necessity of some such provisions is obvious, when it is considered that the settlor was only of the age of 52, and that his three nephews were all infants. The authorities undoubtedly establish that the absence of a clause of revocation will not per se invalidate a voluntary deed, and that it is a fact of more or less weight, according to the circumstances of each case. But the conÂÂdition of the settlor and his family in the present case made it imperative that his wishes on this subject should have been ascerÂÂtained by the solicitor, and the consequence of omitting it exÂÂplained. The instructions to counsel show that neither of these duties was observed by the defendant. On the contrary, according to his own evidence he told the settler " the deed could not be broken, save by selling the property." This was an erroneous statement of the law in two respects :-First, by not informing the settlor that the object could-be effected either by a general power of appointment preceding the limitations of the deed, or by a clause of revocation ; and, secondly, by leading the settler to believe that he could safely sell the property for value. In the event of such a sale the settler would at once be liable for the full value of the estate under the covenants for title : Williamson v. Codrington (1) ; Hales v. Cox (2) ; which were improperly inserted in the deed : Cray v. Mansfield (3); and which per se are evidence of culpable neglect : Stannard v. Ullithorne (4). The limitation of a life estate to the (1) 1 Ves. Sen. 511. (3) 1 Ves. Sen. 379. (2) 32 Beay. 118. (4) 4 Moore & Scott, 359. VOL. XVII. 3E 644 LAW REPORTS (IRELAND). R.1. Appeal. settlor impeachable for waste, the absence of a leasing power, and 1886. the insertion of vendor's covenants for title, all afford additional HOBAN evidence of gross negligence in the preparation of the deed. The v. MAc MAnorr. deed must be read as against the defendant, the solicitor under whose direction it was prepared, as if it contained the clause of revocation which he should have taken care to insert : Nanney v. Williams (1) ; in which case the estate would have vested in the plaintiff, according to the settlor's intentions. The defendant canÂÂnot insist on the absence of such a clause ; to do so would be to make his own negligence a link in his own title to the estate : Bulkley v. Wilford (2) ; Sugden's Law of Property, p. 194 ; GreenÂÂfield v. Bates (3) ; Lovesy v. Smith (4). Serjeant Campion, Q. C., and Mr. M'Laughlin, Q. C. (with them Mr. Thomas W. Bell), for the respondent : As to the basis of this suit, all charges of fraud, undue inÂÂfluence, and mala fides are wholly withdrawn, and, on the eviÂÂdence, conclusively disproved. The grounds are simply and only :-The preparation by the defendant of a voluntary conveyance, without a clause of revocaÂÂtion, and the long subsequent fact that, after a series of the most remote and improbable contingencies, the defendant himself beÂÂcame entitled to the estate, as heir-at-law of the last grantee in that deed-an event sworn by him never to have been contemplated. When is the suit brought ? Thirty-two years after the execuÂÂtion of that deed ; the grantor, whose perfect capacity is conceded, having lived for twenty-two years after its execution, and having survived his last nephew by a period...