Kearns v Manresa Estates
| Jurisdiction | Ireland |
| Judge | KENNYJ, |
| Judgment Date | 25 July 1975 |
| Neutral Citation | 1965 WJSC-HC 4316 |
| Date | 25 July 1975 |
| Docket Number | No. 193/1974 |
| Court | High Court |
1965 WJSC-HC 4316
THE HIGH COURT
BETWEEN
and
Judgment delivered 25th July 1975
This is the third case in our jurisdiction in which the validity and certainty of what is commonly called "a name and arms" clause has been questioned. In re Montgomery Deceased, Jellett .v.Waddington (1953) 89 I.L.T.R. 62 Mr. Justice Dixon decided that such a clause was void for uncertainly because it was impossible to state when the disuse of the name which the person was bound to assume occurred. In de Vero Deceased, Jellett .v. O'Brien (1961) I.R. 224 Mr. Justice Budd followed Mr. Justice Dixon's decision and held that such a clause was void for uncertainty on grounds corresponding to those given in the first case. Since those two cases have been decided, the Court of Appeal in England, declining to follow a number of earlier English decisions, held in re Neeld Deceased (1962)2 All E.R. 335 that such a clause was valid and was not void for uncertainty. The purchaser in this case is buying a substantial area of land in Clontarf which formerly formed part of the Vernon Estate and as the validity of the vendors' (the plaintiffs) title depends on the acceptance of the correctness of the views taken by the High Court in Ireland, has decided to bring this vendor and purchaser summons. The purchaser maintains, despite the two Irish decisions, that a name and arms clause in a deed made on the 18th December 1933 is valid and effective and that accordingly the vendors have not shown title in accordance with their contract. In order to indicate how the question has arisen it is necessary to deal with the history of the Vernon family to the lands in Clontarf. Unfortunately, this is a most complicatedtitle.
By an Indenture of Settlement made on the 23rd December 1879 made between John Edward Venables Vernon of the first part, Edward Vernon of the second part and numerous other parties, the lands known as the Clontarf Estate were conveyed to the use of John Edward Venables Vernon during his life with remainder to the use of Edward Vernon during his life with remainder to the use of Edward Kingston Vernon during his life with remainder to the first, second, third and every other son of Edward Kingston Vernon successivelyin remainder one after the other according to priority of birth and the heirs of their respective bodies. John Edward Venables Vernon died on the 29th April 1890, Edward Vernon died on the 20th November 1912 and thereupon Edward Kingston Vernon became entitled to the lands as tenant for life with remainder to his sons in tail male. Edward Kingston Vernon was married in 1911 and had four children. His eldest and only son was Robert Edward Kingston Vernon and he had three younger children, Gwendoline, Elizabeth and Cynthia (subsequently called Mabel Cynthia). These three ladies have married.
By a disentailing deed dated the 18th December 1933 the lands still subject to the settlement of the 23rd December 1879 were conveyed by Edward Kingston Vernon and Robert Edward Kingston Vernon with the consent of Edward Kingston Vernon as protector to John George Oulton and Edward William Davy and their heirs subject to the life estate of Edward Kingston Vernon but discharged from all estates in tail at law or in equity of Robert Edward Kingston Vernon to such uses, for such estates and subject to such powers and provisions as Edward Kingston Vernon and Robert Edward Kingston Vernon should at any time thereafter by any deed, revocable or irrevocable, jointly appoint. Edward Kingston Vernonand Robert Edward Kingston Vernon had agreed to make a settlement of the lands of Clontarf and this was done by a deed made on the same day but executed after the disentailing assurance.
By the deed made on the 18th December 1933 between Edward Kingston Vernon of the first part, Robert Edward Kingston Vernon, the eldest son of the said Edward Kingston Vernon of the second part and John George Oulton and Edward William Davy of the third part in which the earlier history of the title is elaborately recited, Edward Kingston Vernon and Robert Edward Kingston Vernon, in exercise of the powers vested in them by the disentailing deed, appointed Clontarf Estate (which was elaborately described in the First Schedule to the deed) subject to the life estate of Edward Kingston Vernon to the use of the said Robert Edward Kingston Vernon during his life and from and after his decease to the use of the first and every other son of the said Robert Edward Kingston Vernon successively in remainder one after the other according to their respective seniorities and the heirs male of their respective bodies and, in default of issue of the said Robert Edward Kingston Vernon, to the use of Gwendoline Vernon, Elizabeth Vernon, Cynthia Vernon and every other daughter of the said Edward Kingston Vernon successively in remainder one after the other according to theirrespectivesenorities and the heirs of their respective bodies.
The next clause in the settlement is the one which has caused the difficult problem in this case and as the decided authorities turn on nicoties of language, it is essential that it should be set out.
It read:
"It is hereby agreed and declared that every person who shall under the limitations hereinbefore contained become entitled as tenant in tail male or in tail by purchase to the possession or receipt of the rents and profits of the said lands and hereditaments hereby settled other than a person who shall then use the surname of Vernon and bear the arms of Vernon shall within one year after he or she shall so become entitled or being an infant within one year after he or she shall attain the age of 21 years and also that the husband of every female so becoming entitled not being a peer or the eldest or only son of a peer shall within one year after such female shall so become entitled or marry which shall last happen assume the surname of Vernon and apply for a proper licence to bear the arms of Vernon either alone or quarterly with his or her own arms and in case such licence is obtained shall forthwith assume such arms unless in either of such cases if such person shall be prevented from so doing by death and if the person so entitled as aforesaid orin the case of a married woman her husband shall refuse or neglect within such year to assume such surname or to apply for such licence as aforesaid or shall at any time afterwards disuse such surname or shall at any time after obtaining such licence disuse such arms then and in every case immediately after the expiration of such year or such disuse if the person so entitled as aforesaid shall be a tenant in tail male or in tail by purchase the estate in tail male or in tail of such person shall absolutely determine and the said lands and hereditaments hereby settled shall immediately devolve on the person next in remainder as if such person were dead without having had issue inheritable under such limitation in tail male or in tail."
The features of this clause which are relevant for this case are that if any daughter became entitled and married, her husband was to assume the name and arms of Vernon and in addition if either the daughter or her husband "shall at any time afterwards disuse such surname" the lands were to devolve on the person next in remainder as if the person entitled were dead without having had issue inheritable under such limitation in tail male or in tail.
By a deed dated the 15th July 1937 between the said Edward Kingston Vernon and Robert Edward Kingston Vernon of the one partand the said John George Oulton and Edward William Davy of the other part, which was expressed to be supplemental to the settlement of the 18th December 1933, Edward Kingston Vernon and Robert Edward Kingston Vernon in exercise of the power of appointment given to them by the deed of the 18th December 1933 appointed the lands settled by that settlement of the 18th December 1933 to the same uses as were by that settlement declared in default of any appointment by them save and except the use thereby declared in default of issue of the said Robert Edward Kingston Vernon in favour of Margaret Gwendoline Jane Vernon, Daisy Elizabeth Vernon and Cynthia Mabel Vernon and in lieu of the said use in default of issue of the said Robert Edward Kingston Vernon, the said lands and hereditaments should on his death be held to the use of the said Margaret Gwendoline Jane Vernon, Daisy Elizabeth Vernon and Cynthia Mabel Vernon and every other daughter of the said Edward Kingston Vernon as tenants in common in tail with cross remainders between such daughters as to their original and accruing shares as...
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