Jameson and Scrutton v McGovern

• Jurisdiction: Ireland
• Judgment Date: 27 April 1934
• Date: 27 April 1934
• Court: Supreme Court (Irish Free State)

Jameson v. McGovern.

ANDREW JAMESON and WALTER SCRUTON,Executors of EMILY ROBINSON, Widow, Deceased, and the said ANDREW JAMESONas Administrator of WILLIAM HENRY ROBINSON, Deceased

Plaintiffs

and

MARY McGOVERN, Defendant (1)

High Court

Supreme Court

Settlement - Construction - Real estate - Executed trust - Grant of life estate - Absence of words of limitation - Intention of settlor.

On a contract for the sale of certain freehold premises, a question arose on the title as to the construction of a marriage settlement.

By this settlement W. H. R. (the intended husband) conveyed to a trustee and his heirs the said premises, and E. A. (the intended wife) assigned to the trustee her reversionary interest in certain moneys, and trusts were declared to pay the income of all and singular the trust premises therein before expressed to be thereby granted and assigned respectively. The first trust was to pay the income under a protected life estate for the husband, followed by a life estate with restraint upon anticipation in favour of the wife during her life, and thereafter a trust for the issue subject to appointment, and in default of appointment in trust for all the children or any the child of the said intended marriage who, being sons or a son, should attain the age of twenty-one years, or, being daughters or a daughter, should attain that age or marry, and if more than one in equal shares. The settlement then provided that in default or failure of children (which event happened), "the said trustees or trustees shall hold the trust promises hereinbefore brought into settlement by the said W. H. R. and the annual income thereof, or so much thereof respectively as shall not have boon applied under any of the trusts or powers herein contained in trust for such person or persons and for such estates and interests as the said W. H. R. shall by deed or will appoint, and in default of such appointment and so far as no such appointment shall extend, then for the survivor of them, the said W. H. R. and E. A., absolutely." No appointment was made by the husband and the wife survived the husband.

The purchasers contended that, as the gift to the survivor (the wife) did not contain any words of limitation, she had only a life estate, the vendors contending that the fee passed to her.

The Supreme Court were of opinion, differing from the High Court, that it was now settled that a limitation in a trust, perfected and declared by the settlor, must have the same construction as in the case of a legal estate executed, and therefore that in the absence of words of limitation only a life estate was taken, the Supreme Court agreeing with the decision of the Court of Appeal in England in In re Bostock's Settlement, [1921] 2 Ch. 469,and being of opinion that so many of the Irish authorities as were base on In re Tringham's Trusts, [1904] 2 Ch. 487, must be overruled.

But, on the facts, as the settlement was made before marriage and the agreement was to settle the husband's lands on the wife absolutely if she survived him, every provision with regard to her fell directly within the consideration. Accordingly the wife had an equity independent of the declaration of trust made by the settlor and this equity was sufficient to construe the settlement as giving her the equitable fee which it was contracted that she, should have in the events which had happened.

Two Appeals from the Circuit Court which were heard together, the plaintiffs and the defendant being the same in both cases.

In an Equity Civil Bill the plaintiffs averred:—

1. By agreement, dated 11th July, 1925, and made between William Henry Robinson of Glenboy, in the County of Leitrim, and Emily Robinson his wife, and Thomas McGovern and the defendant Mary McGovern, the said William Henry Robinson and Emily Robinson agreed to sell, and the said Thomas McGovern and the defendant Mary McGovern agreed to purchase, the licensed house and premises situate in the town of Manorhamilton and then in the occupation of the said Thomas McGovern and held by him under a yearly tenancy from the said William Henry Robinson, at the price of £500, said purchase money to be paid as follows:—£100 to be paid on or before the execution of the agreement and the balance to be paid by half-yearly instalments of £50 each to the said William Henry Robinson, in the event of William Henry Robinson predeceasing Emily Robinson, the balance of the purchase money to be paid to the said Emily Robinson.

2. The said William Henry Robinson died intestate on the 26th day of June, 1927, and Letters of Administration of his estate were granted forth of the Ballina District Registry to the said Emily Robinson on 15th day of October, 1927.

3. The said Emily Robinson died on the 9th day of January, 1928, and probate of her will and codicil was granted forth of the Ballina District Registry on the 11th day of February, 1929, to the plaintiffs.

4. On the 22nd day of September, 1930, a Grant of Administration de bonis non to the estate of William Henry Robinson deceased was obtained by the plaintiff Andrew Jameson forth of the Principal Probate Registry.

5. The plaintiffs have always been ready and willing to complete the said contract, but neither the said Thomas McGovern in his lifetime nor the defendant Mary McGovern have made any payment on account of the unpaid instalments of the balance of the purchase money.

6. The said Thomas McGovern died on 7th day of July, 1930, leaving the defendant, his lawful widow, him surviving, who is now in possession of the premises.

7. The plaintiffs have shown good title to the premises, and the defendant has not made any attempt to pay the instalments of £50 per half year. There is now due and owing by the defendant on foot of the unpaid balance of the purchase money the sum of £450.

Plaintiffs claimed (a) that the defendant be ordered to carry out the said contract and to pay forthwith to the plaintiffs the sum of £450, being the amount due on foot of the instalments of £50 per half year from the 11th day of January, 1926.

(b) That in default of payment of the said sum of £450 within a period to be fixed by the Court the plaintiffs be at liberty to rescind the said contract.

The defendant in her defence, alleged that the plaintiffs had not, nor had any of them, shown a good title to the premises in respect of the purchase money, of which there had already been paid to William Henry Robinson during his lifetime the sum of £220, apart from a further transaction in respect of a promissory note for £80, for which the defendant did not, in the events that have since transpired, now claim credit.

2. Alternatively, the defendant relied on the objection and requisitions on the title already delivered, and alleged that they had not been duly complied with, and that Emily Robinson, deceased, was only entitled to a life estate in the premises, and that upon her death there was a resulting trust for the heir-at-law of William Henry Robinson, deceased, and that the purchase money was in the same position as the premises and was subject to the trusts of the marriage settlement referred to in the abstract of title.

The premises in question were held under a fee-farm grant made in pursuance of the Renewable Leasehold Conversion Act, 1849.

The other Civil Bill was issued in respect of the promissory note above referred to. This promissory note, dated the 9th April, 1927, was made by Thomas McGovern, deceased, and William H. Robinson, deceased, for the accommodation of the said Thomas McGovern, and was for £97 9s. 9d., being £80 amount of the promissory note and £17 9s. 9d. interest to 6th March, 1931.

The abstract of title offered on behalf of the plaintiffs was as follows:—By his will, dated 31st May, 1881, Robert Robinson bequeathed to his son John Robinson the premises in question "to have and to hold during his life and his heirs after him, but should he die without issue or offspring, then in that case, the said house and premises is to be given up and become the property of my son William Robinson after the death of the said John Robinson, and I further direct that the aforesaid John Robinson is neither to sell, mortgage, or otherwise dispose of said house during his life or his offspring after him."The said Robert Robinson died on the 7th August, 1881, without having altered his will. The said John Robertson died within a short time after the death of Robert Robinson and the said William Henry Robertson mentioned in said will became absolute owner in fee simple of the premises. By indenture of marriage settlement, dated the 26th December, 1881, made between the said William Henry Robinson of the first part, Emily Abbey of the second part, and Robert Treacey of the third part, the said William Henry Robinson in pursuance of an agreement and for the consideration therein granted to the said Robert Treacey and his heirs the said premises and the rents, issues and profits thereof to hold the same unto and to the use of the said Robert Treacey and his heirs upon trust for the said William Henry Robinson, his heirs and assigns until the intended marriage referred to in said indenture, and after the solemnisation thereof upon the trusts thereinafter declared concerning the same. By deed of appointment of new trustees, dated the 24th September, 1898, made between the said William Henry Robinson, the said Emily Robinson (formerly Emily Abbey), the said Robert Treacey and Arthur Salisbury Cox, the said Arthur Salisbury Cox was appointed a trustee of the said indenture of marriage settlement in the place of the said Robert Treacey so that all the estate and interest of the said Robert Treacey in the premises subject to the trusts of the said indenture of marriage settlement should forthwith vest in the said Arthur Salisbury Cox as trustee of the said indenture of marriage settlement. By deed of appointment, dated 8th January, 1906, William Henry Robinson, Emily...