Latham v Travers

• Jurisdiction: Ireland
• Judgment Date: 07 May 1912
• Date: 07 May 1912
• Court: Court of Appeal (Ireland)

Latham

and

Travers (1).

Appeal.

CASES

DETERMINITD BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND.

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1912.

Lunatic — Estate — Sale to Estates Commissioners — Fee-farm grant and moiety of reserved rent — Will — Devise — Ademption — Lunacy Regulation (Ireland) Act, 1871, ss. 63, 67 — Irish Land Act, 1903, s. 26.

N. devised his share of certain lands to L. These lands were held in fee-farm, and N. was entitled to a moiety of the fee-farm rent as well as to the lands comprised in the grant, the other moiety of the rent being vested in L. In 1905 he lodged an originating request with the Estates Commissioners for the purpose of selling to the tenants.

N. was afterwards found a lunatic by inquisition, and the Estates Commissioners, in the year 1908, sent in a proposal to the committee of the lunatic's estate to purchase the lands for the sum of £5136. This proposal was submitted to the Lord Chancellor, who, on the 18th May, 1908, made an order declaring that the sale was for the benefit of the lunatic, and just and reasonable, that the committee should be at liberty to carry out such sale, and to apply that the net amount available in respect of the purchase-money should be transferred to the credit of the lunacy matter, and separate credit of the sale of the lands. The sale was accordingly carried out, and on the 15th January, 1909, an order was made by the Lord Chancellor in the lunacy matter, giving the committee of the estate liberty to consent to the redemption of. L.'s moiety of the fee-farm rent at the sum of £2500, and in pursuance of consent under that order the moiety of the fee-farm rent was redeemed at £2450, paid out of the purchase-money, and the balance was transferred to the credit of the lunacy matter. After the death of N. questions were raised by his heir-at-law and next-of-kin whether the devise of his share in the lands, so far at least as the moiety of the fee-farm rent was included in it, was adeemed by the sale.

Held, affirming the decision of the Master of the Rolls, that the sale having proceeded under section 26 of the Irish Land Act, 1903, section 67 of the Lunacy Regulation (Ireland) Act, 1871, negatived ademption.

Appeals by Mary E. Duffy and by Eugene Robinson, assignee of Julia Travers, by indenture of assignment dated 3rd March, 1911, from so much of the order of the Right Hon. the Master of the Rolls, dated 10th November, 1911, as declared that the

sale of the lands in the said order referred to, under the circumstances under which the sale took place, did not effect an ademption of the testator's moiety of the fee-farm rent of £224 2s. 8d., therein referred to”; see ante, p. 140, where the hearing of the case in the Rolls Court and the Master of the Rolls' judgment will be found reported.

In addition to the documents mentioned in the report in the Court below, it is deemed advisable to state that on the 15th January, 1909, an order was made by the Lord Chancellor, that the committee be at liberty to consent to the redemption at the price of £2500 of one moiety of the head-rent of £224 2s. 8d. payable out of the Meath estate of James Thomas Nugent, and that the committee be at liberty to apply to the Land Commission that the balance of the purchase-money of the estate of the said James Thomas Nugent be invested. By a consent, dated 30th January, 1909, signed by Johanna Latham and Sir Walter Nugent, committee of the lunatic, entitled in the Land Commission matter, reciting that the fee-farm rent originally reserved had been reduced to £224 2s. 8d., and that Mrs. Latham was owner of one moiety thereof, and that the vendor, in addition to being owner of the estate in the matter, was owner of the other moiety of the said rent, “and in consequence thereof, it was not necessary to deal with the redemption of the latter moiety,” and the finding in lunacy, and appointment of the committee, and reciting the Lord Chancellor's order of the 15th January, 1909, it was thereby consented and agreed that an order should be made in the matter for the redemption of Mrs. Latham's moiety of the rent, and that the redemption price thereof be fixed at £2450. No order of the nature of that dated 15th January, 1910, mentioned ante, p. 143, was produced at the hearing of the appeal. But on the allocation schedule, after rulings as to Mrs. Latham's moiety of the rent, there appears the following:—“Fix redemption price of other moiety of rent at £2450, transfer said sum to the separate credit of the moiety of said rent payable to vendor, and place same on D. R.—J. O. W.,15th Feb., 1909.”

The lunatic died on the 28th December, 1909, and probate of his will was granted to Mrs. Latham, as executrix, on the 9th February, 1910.

S. L. Brown, K.C. (with him, M'Cann, K.C., and Macrory), for the appellant, Mary E. Duffy:—

Prior to the Lunacy Regulation Act, 1871, the Lord Chancellor had power to sell the estate of a lunatic, but the jurisdiction was exercised very rarely and only when it was necessary to do so for the personal benefit of the lunatic. The reason was, first, that if the lunatic recovered, he should find his property, as far as possible, in the same condition it was in when he became insane; secondly, to preserve if possible the rights of devisees under a will made when he was sane. By section 63 of the Act of 1871, power is expressly given to the Lord Chancellor to sell any estate or interest of a lunatic in land, where it appears to the Lord Chancellor to be just and reasonable, or for the lunatic's benefit, for the purpose of raising money to be applied for seven specified purposes. [Counsel read the section.] The principle upon which the tribunal having jurisdiction in lunacy (in England, the Lords Justices) acts in dealing with the property of lunatics was very fully and clearly stated by the House of Lords in The Attorney-General v. Marquis of Ailesbury (1). [Counsel read from the judgment of Lord Macnaghten, p. 688.] Section 63 of the Act of 1871 extends the power which the Lord Chancellor antecedently possessed; section 67 provides that the surplus of the proceeds of any sale shall belong to the person who on the death of the lunatic would have been entitled to the lands if unsold. Sect. 26 of the Irish Land Act, 1903, gave additional powers of sale to the Lord Chancellor by enacting that where a person who would otherwise be entitled to sell land under the Land Purchase Acts is a lunatic the Lord Chancellor may order the land to be sold as if the sale was required for one of the purposes mentioned in section 63 of the Lunacy Act, 1871, and that section shall apply accordingly. That section does not apply to the sale or redemption of a head rent. The person having power to sell under the Land Purchase Acts is defined by section 17 of the Act of 1903. The word “land” has a special signification in section 26. The wording of the section is practically conclusive. Throughout the whole Land Purchase Code, a distinction is taken between

“land” and “superior interest”: see sections 17 and 62 of the Act of 1903, section 16 of the Act of 1887, and section 33 of the Act of 1896. Superior interests may be sold voluntarily, independently of the Land Purchase Acts; but if so, they remain existing interests. On the other hand, superior interests compulsorily redeemed in proceedings under the Land Purchase Acts are not sold, but are extinguished. In In re Close's Estate (1), the Lord Chief Baron, speaking of the mode of valuing these superior interests, says: “In my opinion, the subject-matter to be valued is the superior interest, that is the estate in the land sold of which the appellants were seised at the moment of the sale.”

In a case of this kind there is no purchase of the superior interest; therefore there is an ademption of the devise at least so far as the superior interest is concerned, because there is nothing in existence to answer the devise.

But even if the word “land” in section 26 could include such an interest as the moiety of the fee-farm rent, the only operation of section 26 is to attract section 63, and not section 67, of the Lunacy Act, 1871. Section 63 of that Act is the only section mentioned in section 26 of the Land Act, 1903; and section 26 concludes by saying, “that section”—i.e., section 63—“shall apply accordingly.”

Ronan, K.C., H. Wilson, K. C., and The Hon. C. T. Atkinson for Mrs. Latham:—

If the lunatic had been entitled to the whole of the fee-farm rent, he would have been owner in fee-simple. The basis of the Lord Chancellor's order of the 18th May, 1908, was that the lunatic was owner of the land, subject only to the moiety of the fee-farm rent vested in Mrs. Latham. In The Attorney-General v. Marquis of Ailesbury (2), Lord Macnaghten, at p. 688, summing up the result of the views expressed by four Lord Chancellors, says that “it is the duty of the Court so far as may be possible not to alter the character of the lunatic's property, or to interfere with any rights of succession.” The sale here was certainly outside the ordinary course of management of the lunatic's estate, and Lord Macnaghten's words expressly apply. That being the rule

prevailing in England, the English Lunacy Regulation Act, 1853, was passed, section 116 of which is identical with section 63 of the Irish Act of 1871. The effect of that section in defining, and to some extent limiting, the original jurisdiction in lunacy was considered in In re Corbett (1). Lord Chelmsford says, p. 517: “The power”—i.e., of selling land to the particular case—“must now be governed by the Lunacy Regulation Act, 16 & 17 Vict. c. 70. That Act extends and defines the powers of the Court, and the Court must confine itself within the limits defined. … I am bound by the terms of the 116th section, beyond which I cannot go.”

Therefore, the general power of the Lord Chancellor to order a sale was withdrawn, and he can only...