Ledwith v Ross

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 01 March 1910
• Court: Chancery Division (Ireland)
• Date: 01 March 1910

Ledwith

and

Ross.

Ross, J.

CASES

DETERMINED 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.

1910.

Landlord and tenant — Lease for life in being — Order fixing fair rent — Devolution of lessee's interest — Land Law (Ireland) Act, 1881 (44 & 45 Vict c. 49), s. 21 — Ejectment — Costs — Plaintiff successful on issues of law, unsuccessful on issues of fact.

A testator holding a farm of land under a lease to the lessee, his heirs and assigns, for three lives, one of which was in existence at his death, by his will devised the farm to his wife during widowhood, and made a residuary bequest of his personal property to the plaintiff and another jointly, and died intestate as to the residue of his real property. His widow, before the death of the last life in the lease, had a fair rent fixed under the Land Law (Ireland) Act, 1881. The last life in the lease died in the lifetime of the widow, who subsequently purchased the fee under the Land Acts.

Held, that the tenancy pur autre vie, notwithstanding the fixing of the fair rent, remained a tenancy pur autre vie for the purpose of devolution. M'Evoy v. M'Evoy, [1897] 2 I. R. 295, dissented from; In re Ruttledge's Estate, [1895] 1 I. R. 328, followed.

Held, further, that the tenancy from year to year arising on the determination of the tenancy pur autre vie was personal property of the testator, and passed to the plaintiff as survivor of the two residuary legatees in the will.

Plaintiff at the trial was successful as to the issues of law, but failed on the issues of fact.

Held, that each of the parties should bear his own costs.

Trial of Action.

Prior to the year 1866, Michael Ledwith became possessed of and entitled to the tenant's interest in that part of the lands of Sleehaun, containing 228 acres and 19 perches, in the county of Longford, held under a lease dated 6th May, 1839, and made between Richard Fox and John Fleming, whereby Richard Fox demised the said lands to John Fleming, his heirs and assigns, for a term of three lives or thirty-one years, from the 1st day of May, 1839, and in that other part of the said lands containing 79 acres, and held by the said Michael Ledwith as tenant from year to year.

By his will dated 29th December, 1866, the said Michael Ledwith devised to his wife, Catherine Ledwith, his house and lands at Sleehaun, during widowhood, with a gift over to the testator's son, Patrick, in case his said wife should marry, or in the event of his said son surviving her, and the testator appointed his two elder sons, Patrick and Peter (the plaintiff), joint residuary legatees, and nominated his wife and two others executors of his will.

The testator being possessed of and entitled to the said lands, died on 7th September, 1869. Shortly after the death of the testator, his widow, Catherine Ledwith, who did not re-marry, entered into possession of the lands, with the assent of the executors, as tenant, under the devise to her contained in the said will, and continued in possession of the same up to the date of her death on 16th September, 1909.

Catherine Ledwith, as such tenant, by notice dated 31st October, 1887, applied to the Land Commission to fix a fair rent upon that portion of the said lands comprised in the said lease, viz., 228 acres and 19 perches, and by an order dated 22nd August, 1890, Catherine Ledwith was declared to be deemed a tenant of a present tenancy in the said portion of the said lands, and the fair rent thereof was duly fixed and determined.

By an agreement dated 1st May, 1908, and made between Captain William Waller Fox and Mrs. Fox of the one part, and the said Catherine Ledwith of the other part, the said Catherine Ledwith agreed to purchase that portion of the said lands containing 228 acres and 19 perches, pursuant to the provisions of the Irish Land Act, 1903.

Patrick Ledwith, the testator's eldest son, died intestate and unmarried on 8th June, 1894, leaving the plaintiff, the testator's second son, the surviving residuary legatee under the said will.

The said Catherine Ledwith, who was the surviving executor of the said Michael Ledwith, made her last will dated 7th March, 1901, whereby she bequeathed, subject to certain pecuniary bequests, all the residue of her property to the defendant, Mary Ross, and died on 16th September, 1909, and probate thereof was granted to the defendants Mary Ross and James Ross, the executors named in the will. It appeared that the last life named in the lease, Fox to Fleming, died in 1904.

The plaintiff alleging that the defendant Mary Ross, and her husband, the defendant John Ross had entered into possession of all the said lands, and had refused to deliver up possession of the same to the plaintiff, and that the defendants Mary Ross and James Ross had refused to convey or assign to the plaintiff their estate or interest in the said lands, or the benefit of the said agreements, claimed—(a) to have it declared that the interest of the said Catherine Ledwith, as tenant of the said lands under the order of the 22nd August, 1890, and her interest therein upon the expiration of the statutory terms thereby created, and her interest in the said lands under the said agreements of 1st May, 1908, were respectively grafts upon her previous interest therein; (b) for a declaration that, in the events which had happened, the plaintiff was now entitled to all the tenant's estate and interest in the said lands, under the orders or agreements aforesaid, and to the full benefit of the said agreements, and that the defendants Mary Ross and James Ross held the same as trustees for the plaintiff, and that they be ordered to convey to the plaintiff all their estate and interest in the said...