Loftus v Stoney

• Jurisdiction: Ireland
• Judgment Date: 16 February 1867
• Date: 16 February 1867
• Court: Rolls Court (Ireland)

Rolls.

LOFTUS

and

STONEY.

Dubber v. TrollopeENR Ambler. 453.

Burley's caseENR Cited 1 Vent. 230.

Curtis v. Price 12 Ves. 89.

Doe v. PerrattENR 9 Cl. & Fin. 614.

Counden v. ClarkeENR Hob. 29.

Archer's caseUNK 1 Rep. 66.

Wrightson v. MacaulayENR 14 M. & W. 214.

Lord Beaulieu v. Lord CardiganENR Ambler, 533.

Doe v. LainchberryENR 11 East, 290.

Doe v. Morgan 6 B. & Cr. 512.

Doe v. EvansENR 9 Ad. & El. 720.

Mayor, &c., of Hamilton v. Hodsden 6 Moo. P. C. C. 76.

Sanderson v. DobsonENR 1 Exch. 141.

Day v. DavorenENR 12 Sim. 200.

Acheson v. Fair 3 Dr. & War. 512.

Winders v. Winders 6 D., M. & G. 559.

Hillas v. HillasUNK 10 Ir. Eq. Rep. 134.

Blackford v. LongUNK 7 Ir. Ch. Rep. 87.

Spearing v. HawkesUNK 6 Ir. Ch. Rep. 297.

Parker v. Hasell 26 Law Jour., Ch. 576.

Baker v. Wall 1 Lord Ray. 185.

Dormer v. Phillips 3 Dr. 39.

Doe v. Perratt; Lywood v. KimberENR 29 Beav. 38.

Horsfield v. Ashton 1 W. R. 259.

Milroy v. MilroyENR 14 Sim. 48.

Burley's case 4 M. & Cr. 331.

Curtis v. PriceENR 29 Beav. 288.

Doe v. PerrattENR 29 Beav. 207.

Counden v. ClarkeUNK 14 Ir. Ch. Rep. 262, 388.

Archer's case 2 M. & K. 265.

Wrigktson v. MacaulayENR 5 Hare, 115.

Lord Beaulieu v. Lord Cardigan 1 Swanst. 566.

Doe v. LainchberryENR 4 Beav. 231.

Doe v. MorganUNK 2 B. & P., N. R. 220.

Doe v. EvansENR Cited Hob. 34.

Mayor, & c., of Hamilton v. HodsdenENR 3 Salk. 336.

Sanderson v. DobsonENR 14 M. & W. 214.

Day v. DavorenENR 2 P. Wms. 1.

Acheson v. FairENR 1 Drew. 633.

Winders v. WindersENR 2 T. R. 659 n.

Hillas v. HillasENR 1 Cox, 362.

Blackford v. LongENR 9 Sim. 447 n.

Spearing v. HawkesENR 7 Taunt. 79.

Parker v. HaswellENR 2 Atk. 102.

Baker v. WallENR 29 Beav. 222.

Dormer v. Phillips 6 D., M. & G. 549.

Doe v. Perratt; Lywood v. KimberUNK 10 Ir. Eq. Rep. 134.

Horsfield v. AshtonENR 7 M. & W. 382.

Milroy v. Milroy Com. 337.

Hall v. Warren 9 H. of L. Cas. 435.

Moody v. Walters 16 Ves. 283.

Toldervy v. Colt 1 Y. & C. 240.

Doe v. Angell 9 Q. B. 328.

Bernal v. Bernal 3 M. & Cr. 559.

Davis v. NortonENR 2 P. Wms. 390.

Culsha v. CheeseENR 7 Hare, 243.

Doe v. FrostENR 5 B. & Ald. 546.

Locke v. Southwood 1 M. & Cr. 411.

King v. MellingENR 1 Vent. 230.

Willis v. Hiscox 4 M. & Cr. 197.

White v. CollinsENR 1 Com 289.

Pawsey v. LowdallENRENR Sty. 249; 1 Vent. 232.

Wilkins v. Whiting 1 Rol. Abr. 836; pl. 11.

Winter v. PerrattENR 5 B. & Cr. 65; S. C., 9 Cl. & Fin. 606.

Doe v. LanglandsENR 14 East, 370.

D'Almaine v. Moseley 1 Dr. 632.

Newman v. NewmanENR 26 Beav. 220.

Gover v. DavisENR 29 Beav. 222.

Phipps v. Lord Anglesea 7 Bro. P. C. C. 433. Toml.

Otway v. Sadlier 4 Ir. Jur., N. S. 97.

178 CHANCERY REPORTS. 1866. Rolls. Dec.4, 6,7, 8. 1867. Feb. 16. LOFTUS v. STONEY. A testator, af- ROBERT FANNIN, being seised of a dwelling-house in Leeson-street, ter various be quests, left all in the city of Dublin, and other freehold property in the city and his remaining properties, county of Dublin, and being possessed of large personal property in upon trust. upon the death the funds and otherwise, made his will, dated the 14th of December of his wife, to divide his plate 1841, as follows :-" I leave and bequeath to Thomas Butler Stoney, among his sur viving child- my son-in-law, James Butler Stoney, Joseph Burke, Esq., and Sir ref ; and he left and be- Robert Harty, Baronet, their successors or assigns, 80,000 old queathed to all his " daughters 3-1- per cent. Government stock, and 40,000 new 3-i per cent. then unmar- Government stock, now standing in my name and to my credit ried, my house (which was a in the books ,of the governor and company of the Bank of Ire freehold), fur niture, pic- land, in trust, and as trustees, for the uses, purposes, and intents tures, &c, &c., to have and hereafter named, and for no other use, purpose, or intent what enjoy the same, and to soever-that is to say : I leave to, and bequeath unto each of the last mar ried, as long as she pleases, or any one of them in succession ; then in remainder to the next male heir ; upon the express condition" that the house should be kept in repair (to. which purpose he appropriated certain property), same being for, and intended as a residence for two of his granddaughters ; it being his will, wish, and desire that it should be maintained as a family mansion. The testator at his death had five daughters, four of whom were unmarried a grandson, 'the son of the married daughter ; and two granddaughters, daughters of a deceased son, who were his coÂÂheiresses. All the testator's daughters married in his wife's lifetime. Held, that the gift to the testator's daughters was limited to daughters who were unmarried at the death of his wife, and had failed. Held also, that the gift to the "next male heir " had failed, because, if those words were words of limitation, and meant the next male heir of a daughter who should take under the preceding gift, that gift had failed ; and, if they were words of purchase, there was no one to answer the description of " next male heir " of the testator at his or his wife's death. The testator having previously disposed of all his property, real and personal, left and bequeathed all the rest, residue, and remainder of his properties, debentures, funded, and securities, &c., &c., to be equally divided, share and share alike, amongst his then surviving children, as residuary legatees. Held, that real estate, the devise of which had failed, passed by that residuary clause. Two wills, devising real estate, were executed and attested on the same day, and at the same place. The witnesses could not state which was signed last. Both documents were endorsed in the testator's handwriting-one, with the words "The last will and testament of R. F ;" the other, " Duplicate will of R. F." The same words were written on each will after the attestation clause ; and each revoked al; previous wills. The wills were inconsistent. Held, that the former document was the last will. CHANCERY REPORTS. 179 my four unmarried daughters, viz., Martha, Mary Anne, MarÂÂgaret, and Catherine Fannin, the sum of 10,000 new 32 per cent. Government stock, to be paid or assigned to each as a marÂÂriage portion on their respective marriages, and 20,000 old 3-} per cent: Government stock, to be settled on each marriage, strictly on my said daughters, and, on their demise, on their lawful issue, share and share alike, not to be subject in any manner to the conÂÂtrol or management of any husband my said daughters may at any time marry. And, in case any of my said four daughters dying and leaving no lawful issue to attain the age of twenty-one years, or get married, then such share or shares of 20,000 old 32 per cent. stock, to be divided, share and share alike, between the survivors of my said four daughters. I leave and bequeath to my dearly beloved wife all the rest, residue, and remainder of my properties, real, perÂÂsonal, freehold, and funded, of whatsoever nature, for and during her natural life, subject, however, to the conditions and impositions hereinafter contained and expressed ; that is to say"-[The testator then bequeathed some pecuniary legacies and annuities.]---"I do leave and bequeath, on the demise of my said dear wife, all my remaining properties, of what nature soever, again in trust, to my aforesaid trustees, their executors or assigns, for and upon the intents and uses following-that is to say, upon the death of my said dear wife my said trustees shall divide my plate amongst my then surviving children, as equitably and satisfactorily as possible, share and share alike. I leave and bequeath to all my daughters then unmarried my house, furniture, pictures, china, glass, and all appurtenances thereunto belonging, to have and enjoy the same, and to the last married, as long as she pleases, or any one of them, in succession, then in remainder to the next male heir, upon the express condition and understanding that said house and premises, situate in Leeson-street, shall be kept in permanent and substantial order and repair ; and for such keeping I leave and bequeath all my leasehold and freehold properties in the county and city of Dublin (my house in Mount-street excepted, same being for and intended as a residence for my dear grandchildren Mary Anne Marsh and Martha Henrietta Fannin); it being my will, wish, and desire, that 180 CHANCERY REPORTS. said house in Leeson-street should be maintained as a family manÂÂsion. I leave and bequeath, in trust as aforesaid, to my said trustees, all my bank stock, now or then at present amounting to 21,000, now standing in my name and to my credit in the books of the governors of the Bank of Ireland ; that, after allowing 200 a-year each for the maintenance and education of my two aforesaid grandchildren, the remaining interest to accumulate and fructify till they get married, or arrive at twenty-one years of age, then to be divided, share and share alike, and, if but one living, all to that one; but, in case my said grandchildren should not get married, or attain the age of twenty-one years, then said bank stock and accumulation to be divided, share and share alike, between my then surviving children generally. It is my. will that, in the event of my daughter-in-law Henrietta Fannin shall die or get married again, that my said grandchildren should be made wards of her Majesty's High Court of Chancery in Ireland. I do leave and bequeath, in trust, one hundred 34 Government debentures, now in my, possession, to be invested and divided, share and share alike, between the children of my dear daughter Sarah Stoney, as they may become of age, or get married. I also leave and bequeath, in trust, 1000 3 per cent. consols, now in my name in the books of the Bank of Ireland, to my grandson Robert Fannin Stoney, the interest thereof to be appropriÂÂated as pocket-money for him till of age, and, in case of his death, to the next son. I leave and bequeath all the rest, residue, and remainder of...