Houston v Barry

• Jurisdiction: Ireland
• Judgment Date: 15 November 1843
• Date: 25 January 1843
• Court: Equity Exchequer (Ireland)

(Equity Exchequer.)

Houston

and

Barry.

Equity Exch.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

In putting a construction upon a deed, the Court will limit the primary signification of general expressions in it by the purposes for which it was executed, so far as those purposes can be discovered from the deed itself.

No party to a marriage settlement can take any thing under its provisions, who is himself a contracting party and has failed to fulfil his part of the contract.

By marriage settlement of the 13th of July 1810, between Philip B of the first part, Margaret B., his sister, of the second part, T. A. of the third part, and trustees of the fourth part, after reciting various unsettled demands which Margaret B. had upon her brother Philip; and that he had agreed to secure for her marriage portion the sum of £5000, and that Margaret B. had, in consideration thereof, agreed to release Philip B. from her claims upom him; and that in pursuance thereof, Philip B. had given his bond and warrant in the sum of £10,000 to the trustees of the settlement; the sum of £5000 was settled on certain trusts; and Margaret B. released Philip B. from the claims she had on him. This settlement contained an agreement “that any judgment to be entered on the bond should not affect or be a charge on the lands of K., part of the estate of Philip B., which said lands Philip B. intends to convey to trustees in strict settlement for family purposes. And it was thereupon agreed that the trustees should not enter judgment on the bond before the next Michaelmas Term.”

By settlement on the marriage of Philip B., dated the 26th of July 1810, he conveyed the lands of K. to trustees in strict settlement, reserving the ultimate reversion to himself in fee.

In Kaster Term 1814, judgment was entered upon the bond for £10,000; and in September 1831, Philip B. died intestate and without issue, and indebted to a very large amount by judgments on bonds with warrants. His wife had died in his lifetime.

Held, that the judgment of Easter Term 1814, was a charge upon the reversion in fee of the lands of K.

The Reverend Philip Barry being seized for lives renewable for ever of the lands of Great Kilcairnes, and for the term of three lives of the lends of Little Kilcairnes, both of which were situate in the county of Meath, and were subject to a head rent of £132. 10s. per annum, on the 13th of July 1810, executed a settlement upon the marriage of his sister Margaret, with Thomas Amory, Esq. This settlement was made between the Rev. P. Barry of the first part, Margaret Barry of the second part, Thomas Amory of the third part, and the Rev. George Connor and George M'Gusty of the fourth part. It recited that Elizabeth Savage, the grand-aunt of Philip and Margaret Barry, had duly made her last will, dated the 25th of May 1796, and after bequeathing several specific legacies, did thereby bequeath the residue of her fortune to Philip Barry the elder, deceased, the father of Philip and Margaret Barry, upon trust to pay Philip Barry, party thereto, the sum of £550 upon his marriage with the consent of his father, or upon the marriage or death of his father, whichever should first happen; and upon trust to pay to Catherine Barry, Margaret Barry party thereto, John and James Barry, children of the said Philip Barry the elder, the sum of £1400 on the days of their respective marriages with the consent of their father, or upon the marriage or death of their father, whichever should first happen: and upon trust after payment of said several sums of money, to pay whatever sum should remain unapplied and undisposed of to Mary Hicks, Philip Barry party thereto, Catherine Barry, Margaret Barry party thereto, John Barry and James Barry, share and share alike; to be paid to them respectively on the days and in the events before mentioned: and appointed Philip Barry the elder, her sole executor. That Elizabeth Savage died, leaving her several legatees surviving; and that P. Barry the elder duly proved her will, and possessed himself of all her fortune: that P. Barry the elder died intestate on the 20th of April 1809, leaving P. Barry party thereto, his eldest son and heir-at-law, and his before-mentioned younger children him surviving; that P. Barry party thereto had obtained administration to P. Barry the elder, and also administration de bonis non to Elizabeth Savage. That the amount of the sum to which Margaret Barry, or any of the children of P. Barry the elder, was entitled to in respect of their distributive shares of the residue of the personal fortune of Elizabeth Savage, as residuary legatees named in her will, had not been ascertained; neither had the amount of the sum to which the said children were respectively entitled to as their respective distributive shares of the personal fortune of P. Barry the elder, as his next of kin, been ascertained: that a marriage was intended to be shortly had and solemnised between Thomas Amory and Margaret Barry, and that P. Barry had agreed “to secure as and for the marriage portion of the said Margaret Barry, the sum of £5000; and the said Margaret Barry hath, in consideration thereof, agreed to release and discharge the said Philip Barry of and from all claims and demands which she should or might have against him, as one of the specific legatees and one of the residuary legatees named in the said will of the said Elizabeth Savage, and as one of the children and one of the next of kin of the said P. Barry deceased.” That Philip Barry party thereto had perfected his bond and warrant of attorney for confessing judgment thereon, bearing equal date with the settlement, in the penal sum of £10,000, conditioned for the payment of the principal sum of £5000, with lawful interest thereon, unto G. Connor and G. M'Gusty, their executors, administrators or assigns, on the 13th day of January then next. The settlement then declared the trusts of the £5000 to be—to permit Thomas Amory to take the interest thereof for his life; and after his decease, in trust for the benefit of Margaret Barry and the issue of the marriage as therein specified. By it, also, Margaret Barry released the Rev. P. Barry from all claims and demands whatsoever, which she could or might have against him on account of any claim or demand, which she could or might set up as legatee and one of the residuary legatees named in the will of Elizabeth Savage, and as one of the children and next of kin of P. Barry the elder; or in any other right or upon any account whatsoever, against the Rev. P. Barry, as the administrator of P. Barry the elder, or the administrator de bonis non of Elizabeth Savage. The settlement concluded with the following clause: “And it is hereby further agreed by and between the said parties to these presents, that any judgment to be entered on said bond shall not affect or be a charge upon the lands of Kilcairnes in the county of Meath, part of the estate of the said Philip Barry; which said lands the said Philip Barry intends to convey to trustees in strict settlement for family purposes. And it is thereupon agreed, that the said trustees shall not enter judgment on said bond before the next Michaelmas Term.”

By indenture of marriage settlement, executed on the marriage of the Rev. P. Barry with Miss Catherine Staples, dated the 26th of July 1810, after reciting, amongst other things, that the lands of Great and Little Kilcairnes were subject to a head rent of £132., 10s. payable thereout to the devisees of the Rev. Richard Barry deceased; and that the same was about to be sold under a decree of the Court of Exchequer for payment of the debts and encumbrances affecting the same; and that the Rev. P. Barry had it in contemplation to purchase the same, and in case he did so, to convey the same to the persons in whom the lands of Kilcairnes were thereby intended to be vested, in order that the rent might merge therein: and further reciting, that the lands of Kilcairnes were subject to certain judgment debts amounting to about £6000,* and that he had agreed to exonerate the lands of Kilcairnes from all charges and encumbrances affecting the same—the Rev. P. Barry, in consideration of the marriage, granted and released the lands of Great and Little Kilcairnes, and also the lands of Belis and Alexandreade, to George Knox and the Rev. George Connor, and their heirs; as to the lands of Great and Little Kilcairnes, to the use, after the marriage, of the Rev. P. Barry for his life; with remainder to the use of trustees and their heirs during his life, in trust to preserve contingent remainders; with remainder to trustees, their executors, &c., for the term of ninety-nine years; then to the use that Catherine Staples should receive thereout a jointure of £600 per annum for her life; with remainder to the use of the first and other sons of the body of the Rev. P. Barry on the body of Catherine Staples to be begotten in tail male; with remainder to the use of the right heirs of the Rev. P. Barry for ever. The trust of the term of ninety-nine years was to secure the jointure of £600 per annum. And as to the lands of Belis and Alexandreade, to the use, after the marriage, of two trustees, their executors, &c., for the term of 500 years; and subject thereto, to the use of the Rev. P. Barry and his heirs for ever. The trusts of the term of 500 years were to indemnify the lands of Great and Little Kilcairnes against the scheduled debts, before mentioned, and all charges and encumbrances affecting the same; and

for that purpose, by sale or mortgage of said lands, to raise money and pay off such charges and encumbrances as often as they should be attempted to be raised off the lands of Great and Little Kilcairnes: then to raise £4000 for the younger children of the marriage.

In Easter Term 1814, the Rev. George Connor and George M'Gusty, as trustees in the marriage settlement of Thomas Amory and Margaret his wife, caused judgment to be...