Is The Matter of The Estate of Georgiana Grove West, Owner and Petitioner

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 08 December 1896
• Date: 08 December 1898
• Court: Court of Appeal (Ireland)

In the Matter of the Estate of Georgiana Grove West, Owner and Petitioner.

Ross, J.

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1898.

Deed — Construction — Annuity — Whether charged on corpus or on income only.

By marriage settlement the intended husband granted lands to trustees, upon trust to permit him to receive the rents and profits for life, without impeachment of waste, and after his death to permit the intended wife to receive £300 a-year “out of the rents, issues, and profits thereof, for and during her life, without impeachment of waste, and for her jointure,” and in lieu of dower, and “immediately after her decease” in trust for the settlor, his heirs and assigns. The settlor covenanted that the lands or any property to be taken in exchange thereof under a power of exchange therein contained should, during the life of the wife, produce the clear yearly sum of £300. In case of there being issue of the marriage living at the death of the settlor all his estate and property at the time of his death was charged with a sum of £3500 for such issue.

Held, by Ross, J., that the annuity was a charge only upon the rents and profits accruing during the annuitant's life.

Held, by the Court of Appeal, reversing the judgment of Ross, J., that the annuity was a charge upon the corpus of the settled property.

Objection to the final schedule of incumbrances by mortgagees of the premises at Harcourt-terrace, in the county of Dublin, claiming under George White West, deceased. The question raised by the objection was whether an annuity of £300 a-year provided for Mrs. West, by settlement dated the 17th August, 1840, was charged upon the corpus of the estate or on the rents and profits only.

By this indenture of settlement, which was made between George White West of the first part, Arthur Grove Annesley and Georgiana Grove Annesley, his daughter, of the second part, and the Rev. Augustus William West, and Richard Grove Annesley of the third part, being the settlement executed on the marriage of George White West and Georgiana Grove Annesley, reciting that George White West, was seised in fee-simple or otherwise, of an estate of inheritance in a plot of ground, with seven dwellinghouses thereon (known as Harcourt-terrace), in the county of Dublin, producing as then let to undertenants, the annual sum of £341 10s., subject to a ground or head rent of £25, and was also seised of lands in the county of Cork, the said George White West, in consideration of the marriage portion of the said Georgiana Grove Annesley, granted to the said Augustus William West and Richard Grove Annesley the said plot of ground known as Harcourt-terrace (described by a metes and bounds), to hold to the said Augustus William West and Richard Grove Annesley, their heirs and assigns, upon trust to pay and satisfy the yearly rents and outgoings; and from and after the solemnization of the marriage to permit and suffer the said George White West and his assigns to receive the rents, issues, and profits thereof for his life, without impeachment of waste, and “immediately after the decease of the said George White West, then to permit and suffer the said Georgiana Grove Annesley and her assigns to receive and take the annual sum of £300 out of the rents, issues, and profits thereof for and during her life, without impeachment of waste, as and for her jointure in lieu, bar, and full satisfaction of and for all dower and thirds at Common Law which she might otherwise have or claim in or out of any freehold, lands, tenements, or hereditaments which he the said George White West at anytime during said intended coverture shall be seised, or which he shall be entitled to, for any estate of freehold inheritance to which dower is incident, and immediately after the decease of the said Georgiana Grove Annesley, in trust for the use of the said George White West, his heirs and assigns, for ever.” The said George White West inter alia covenanted with the said Augustus William West and Richard Grove Annesley, their heirs, executors, administrators and assigns, that the said plot or parcel of ground (i.e. Harcourt-terrace), and the houses erected thereon, or other property to be taken in exchange thereof, or purchased with the produce thereof, or with any fines taken pursuant to the power thereinafter contained, should “during the lifetime of the said Georgiana G. Annesley produce the clear yearly sum of £300 sterling over and above head rent and all outgoings.” In case there should be any issue of the said marriage living at the death of George White West, all the estate and property of which he should die seised of or entitled to was charged with £3500 for a provision for such issue, subject to appointment by him, and in default of appointment in equal shares. Powers of sale and exchange were vested in the trustees, and it was provided that the trustees should stand possessed of any lands acquired by re-investing the proceeds of sale or fines taken upon leases of the said premises at Harcourt-terrace, or lands and premises taken in exchange for the same, upon trust for securing the jointure thereinbefore provided for the said Georgiana Grove Annesley, in the same manner as the said plot or parcel of ground, and houses erected thereon, thereby vested in the said parties.

There were children of the marriage who survived George White West.

The Right Hon. The Macdermot, Q.C. (with him W. M. Jellett), for the objectors:—

There is here a limitation of the corpus of the estate to other uses “immediately after” the death of the annuitant, an expression relied on in Foster v. Smith (1) as showing that the annuitant had a charge on the rents only which accrued during her lifetime.

In Birch v. Sherratt (2) the gift over was “subject to” the

annuity—words which do not occur here, and except for which Lord Cairns was of opinion that the annuity would have only been a charge upon the income.

In Stelfox v. Sugden (1) where the annuity was held not to be a charge on the corpus, the Court relied on the fact that the terms of the will showed that the testator believed that the trust property would produce an income more than sufficient to pay the annuity. The recitals in the settlement here prove that the settlor considered that the income would be adequate. A power to recover arrears by sale is not enough to charge the corpus: Addecott v. Addecott (2). Here there is a power of sale, but it is not given as a remedy to the widow.

The question was considered by Ormsby, J., in Matthew's Estate (3), where Taylor v. Emerson (4), a decision of Lord St. Leonards, was cited. Wormald v. Muzeen (5), referred to in the report of that case, note (3), was reversed on appeal (6).

In Carmichael v. Gee (7) there was a general and indefinite gift of an annuity, and though there was a dedication of a particular fund to provide it, the House of Lords held that there was no real separation of that particular fund from the residue of the testator's estate.

Kelly v. Kelly (8), and Sheppard v. Sheppard (9), are cases where the annuity was held to be charged upon the income only. The authorities are collected in 1 Smith's Real and Personal Property, 6th Ed., p. 14, where the principles to be deducted from them are succinctly stated.

Lawson, for the younger children of Mrs. West, supported the objection, and cited In re Pepper's Trusts (10); Theobald on Wills (2nd Ed.), 636; Taylor v. Taylor (11); In re Moore's Estate (12); In re King's Estate (13); In re Belton's Estate (14).

O'Connor, Q.C., and H. Wilson, for the assignees in bankruptcy of Mrs. West:—

First, an indefinite charge of an annuity on rents and profits prima facie creates a charge on the corpus. The rule in Phillips v. Gutteridge (1) was accepted by Monroe, J., as the true exposition of the law on this subject: In re Moore's Estate (2). There is nothing here to rebut the presumption that the settlor intended to charge the corpus:Metcalfe v. Hutchinson (3); Salvin v. Weston (4).

Secondly, there is no gift over, and the deed must be construed most strongly against the grantor, and most favourably towards the grantee. This is not a contest between two grantees of the same estate, or of an estate put in strict settlement. Subject to the annuity there is a mere reservation of the estate to the grantor. He could have alienated the lands, and so defeated the covenant quoad them.

Thirdly, the words “without impeachment of waste,” which can have no technical meaning applicable to the subject matter, are meaningless except as an indication that the gift of the annuity was to be enjoyed in the fullest manner that the settlor was capable of giving effect to it.

W. M. Jellett, in reply, cited Parker v. Harvey (5). [He was stopped by the Court.]

The Right Hon. The Macdermot, Q.C. (with him W. M. Jellett), for the...