Latham v Travers

• Jurisdiction: Ireland
• Judgment Date: 10 November 1911
• Date: 10 November 1911
• Court: Chancery Division (Ireland)

Latham

and

Travers.

M. R.

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.

Will — Construction — Devise — Bequest — Lunatic — Fee-farm grant — Land purchase — Head rent — Redemption — Sale — “Surplus moneys” — Lunacy Regulation (Ireland) Act, 1871, ss. 63, 67 — Irish Land Act, 1903, s. 26.

Section 26 of the Irish Land Act, 1903, is inserted in and incorporated with the Lunacy Regulation (Ireland) Act of 1871, by force of the provisions of s. 26 itself.

Section 63 of the Lunacy Regulation (Ireland) Act, 1871, is, in effect, amended by the insertion therein, as one of the “purposes” for which the Lord Chancellor may order a sale of the lands of a lunatic, of the “purpose of a sale under the Land Purchase Acts.”

In a suitable case surplus moneys” in s. 67 of the Lunacy Regulation (Ireland) Act, 1871, may refer to the whole of the money raised and not merely to a balance.

“Land” in s. 26 of the Irish Land Act, 1903, includes a fee-farm rent, and by virtue of that section and of s. 63 of the Lunacy Regulation (Ireland) Act, 1871, the Lord Chancellor can order a sale of superior interests of which the lunatic is the owner.

Where a sale of real estate owned by a lunatic is carried out by virtue of s. 26 of the Irish Land Act, 1903, and s. 63 of the Lunacy Regulation (Ireland) Act, 1871, the real estate is not converted, or, if it has been dealt with by the lunatic's will, adeemed, but the “bonus” must be treated as personal estate.

Semble, ademption, as a branch of the law of revocation may involve some mental process.

Originating Summons taken out by Johanna Latham, the executrix of the will of James Thomas Nugent, the deceased, to determine (inter alia) the following questions:—

(1) Did the devise and bequest therein contained of “my share of the lands of Hermitage, Uttyneal, and Mullaghrea, in the parishes of Moynalty and Kilbegs,” operate as a devise of (a) the grantee's estate and interest therein under an indenture of fee-farm grant, dated the 12th November, 1808; (b) the testator's moiety of the fee-farm rent of £224 2s. 8d., payable thereout in equal moieties to the said deceased and the said plaintiff, Johanna Latham, respectively, as owners thereof?

(2) Did the sale of the said lands, under the circumstances in which the same took place, effect a conversion of the said interests, or either of them, in the said devise mentioned?

(3) Were the said interests, or was either of them, adeemed, and if so did such property pass to the heir-at-law or the next-of-kin of the deceased?

(4) Does the percentage payable under the Land Purchase (Ireland) Acts upon the sale of the said lands, and now represented by the sum of £612 14s. 4d., form part of the residuary personal estate of the said deceased?

The will of Colonel Nugent, the deceased, contained the following bequest:—“I hereby give and bequeath, out of my money in the New 2³/₄ per cent. Consols, to Mrs. Latham, of the above address, £1500, and my share of the lands of Hermitage, Uttyneal, and Mullaghrea in the parishes of Moynalty and Kilbegs, near Kells, Co. Meath, and my share of the property Nos. 1, 2, and 3, Luke Street, city of Dublin.”

Colonel Nugent was entitled to the lands of Hermitage, Uttyneal, and Mullaghrea, subject to a fee-farm rent of £224 2s. 8d. He was also absolutely entitled to one moiety of the said fee-farm rent.

Colonel Nugent, having decided to offer the said lands to the Estates Commissioners, advertised for proposals for purchase of the different lots, the purchase-money to be advanced by the Land Commission. A number of persons responded to this advertisement, and signed undertakings for purchase at sums amounting to £5363. These undertakings, which were in the form prescribed by the rules of the Irish Land Commission, were (save in one case) signed by the deceased early in the month of April, 1905, and the necessary originating request, signed and verified by the deceased, together with the said undertakings, was lodged in the Estates Commissioners' office on the 28th April, 1905. In the remaining case the undertaking to purchase, though dated the 2nd April, 1905, was not signed until the month of July, 1905, by Colonel Nugent's solicitor, under a power of attorney. Colonel Nugent became mentally affected in the end of the year 1905, and was declared a lunatic by order of the Lord Chancellor dated the 13th January, 1906. By an order in the lunacy proceedings, dated the 16th March, 1906, it was declared that the agreements entered into by the deceased with the tenants of his property at Hermitage for the sale to them of their holdings under the provisions of the Irish Land Act, 1903, should be confirmed and carried out accordingly, and it was ordered that the committee should proceed as he might be advised for the purpose of having such sales completed. On the 14th May, 1907, a further order was made by the Lord Chancellor that for the purpose of carrying out the sales under the Irish Land Act, 1903, authorized by the said order of the 16th March, 1906, the committee should be at liberty in the name and on behalf of the lunatic to consent to the purchase of the lands by the Estates Commissioners upon the terms sanctioned by the said order, and to include in such sale the untenanted lands.

In the course of the Land Commission proceedings it became apparent that there were no binding contracts for sale, and that most of the persons purporting to agree with Colonel Nugent were not tenants, and that the sale must be proceeded with on the basis that Colonel Nugent had merely initiated proceedings so as to enable him to sell, and the Land Commission to buy, if the Land Commission elected to make an offer. A proposal to purchase was issued by the Estates Commissioners on the 7th April, 1908.

On the 18th May, 1908, an order was made by the Lord Chancellor whereby it was declared to be for the benefit of Colonel Nugent, and to be just and reasonable, that the property of Colonel Nugent in the county Meath, being the lands of Uttyneal, Hermitage, and Mullaghrea, should be sold to the Estates Commissioners for the purposes of the Irish Land Act, 1903, for the sum of £5136, and it was accordingly further ordered that the committee be at liberty, through his solicitors, to take all requisite steps for carrying out such sale, and to apply that the net amount available in respect of the purchase-money should, in due course, be transferred to the credit of the lunacy matter and separate credit of the sale of the lands.

On the 14th November, 1908, an order was made that the committee be at liberty to accept a reduction of £30 in the purchase-money in the case of one holding, the offer of the Estates Commissioners being reduced by a like sum.

In pursuance of these orders the offer of the Estates Commissioners was accepted by the committee on the 12th June, 1908, and the sale duly carried out. An order of the Land Commission was made vesting the estate in the Irish Land Commission on the 2nd December, 1908. On the 7th December, 1908, an order was made in the lunacy proceedings that the committee be at liberty to apply to the Court of the Irish Land Commission that the fees and remuneration payable under the agreement which Colonel Nugent had entered into with his solicitors at the commencement of the proceedings for sale, be paid out of any moneys coming to Colonel Nugent in respect of the sale, either on foot of his claim as the owner of a superior interest or on foot of his claim to bonus.

The purchase-money of £5106 was paid on the 25th February 1909.

On the 15th January, 1910, an order was made in the lunacy proceedings giving liberty to the committee to consent to the deceased's moiety of the head-rent of £224 2s. 8d. being redeemed at the sum of £2450.

Title on behalf of Colonel Nugent was subsequently shown to the moiety of the head-rent in the Land Commission matter, and the amount of the redemption price thereof was transferred to the credit of the lunacy matter, and to separate credit of one moiety of the redemption price of the head-rent of £224 2s. 8d. The holdings were vested in the tenants on the 7th July, 1910.

The Solicitor-General, Herbert Wilson, K.C., and The Hon. C. Atkinson, for Johanna Latham:—

The attempted sale before the lunacy proceedings was wholly nugatory. There were no real tenants, and therefore no agreements. The first proceedings having no existence in law, the second proceedings taken after the lunacy matter cannot be tacked on to them. In the ordinary management of a lunatic's estate the Court pays no attention to those coming after, but it will not alter the general character of the estate more than is necessary: The Attorney-General v. The Marquis of Aylesbury (1); Ex parte Haycock (2); Pope on Lunacy, p. 339. There was no binding agreement when the Lord Chancellor made his first order. An originating application and an originating request differ toto cælo.

On an originating request it is open to the statutory body to inspect or not: Marianne Doyle's Estate (3).

G. FitzGibbon, K.C., Pigot, K.C., and F. Mooney, for Julia Travers, an assignee of the heir-at-law and of one of the next-of-kin:—

There is no change in the character of the property of a person under disability where his land is changed into money, because there is no election as to the form in which he will take the money. So where purchase-money is paid into Court under section 69 of the Lands Clauses Consolidation Act, 1845: Kelland v. Fulford (4). Assuming that the expression “my share of the lands of Uttyneal” comprised the superior interest belonging to the testator under the fee-farm grant, the redemption-price of that superior interest could not pass to the devisee, as the redemption of the fee-farm rent adeemed the devise.

Ademption does not depend upon intention, and...