MARY ANNE GIVAN'S ESTATE. [Land Commission.]

• Jurisdiction: Ireland
• Judge: Ross J.
• Judgment Date: 21 December 1917
• Court: Land Commission (Ireland)
• Docket Number: (E. C. 4047.)
• Date: 21 December 1917

MARY ANNE GIVAN'S ESTATE.

Land Commission.

(Ross J.)

(E. C. 4047.)

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.

1918.

Express trust — Annuity — Lands charged in exoneration of other Lands — Redemption of Annuity — Real Property Limitation Act (3 & 4 Wm. 4, c. 27), ss. 2, 25.

By his will, made in 1770, A. M. devised all his estates subject to legacies to trustees in trust to pay certain legacies and annuities, and subject thereto to A. S. for life, with remainder in tail male to his first and other sons, with remainders over. By a first codicil deceased left to other trustees a sum of £20 per annum, payable out of the testator’s lands of Grange, in trust for certain poor men and poor widows therein described. By a second codicil, deceased, having recited the devise in his will, revoked the remainders and limitations therein mentioned, and devised his freehold estates to A. S., his heirs, and assigns for ever, and in other respects confirmed his will and first codicil. A. S. predeceased the testator, leaving no issue, and on the latter's death his three daughters took as co-heiresses. A partition deed was executed in 1781 by them and their respective husbands, reciting (inter alia) the creation of the annuity of £20; and the lands charged therewith were thereby assured to M. (one of the daughters) subject to the said annuity.

In 1880 portions of the lands of the objector (the successor in title of M.) were sold in the Land Judge's Court in twenty-four lots, and lot 24 (being the lands now sold) was sold liable to pay the annuity in exoneration of the other lands; and by a Land Judge's conveyance lot 24 was conveyed to the purchaser subject to the annuity in exoneration of the other lands sold. In 1908 certain other lands belonging to the objector and derived from M. were sold, and, the annuity having been placed on the schedule with a denial of liability, the Commissioners of Charitable Donations and Bequests lodged an objection which was allowed; but the present vendors were not parties, and were ignorant of the application. The annuity was never paid at any time.

Held:—First, that the vendors not being parties to the decision given in 1908 were not bound by it. Secondly, that the annuity was secured by an express trust within the meaning of 3 & 4 Wm. 4, c. 27, s. 25, and consequently was not barred. Thirdly, that the words used in the second codicil only affected the devise to A. S., giving him an estate in fee instead of in tail. Fourthly, that it was immaterial that the trustees to whom the estate was devised, and those who were to distribute the annuity, were different persons. Fifthly, that the person whose money was applied in redemption of the annuity stepped into the shoes of the annuitant, and that therefore it was not necessary that the claim for contribution should have been made within six years from the date of the payment of the redemption moneys.

Objection to final schedule of incumbrances.

By his will, made in the year 1770, Acheson Moore, of Ravilla, County Tyrone, devised all his estates subject to legacies to trustees in trust to pay certain legacies and annuities therein mentioned, and subject thereto to the use of Andrew Stewart for life, with remainder in tail male to his first and other sons, and with divers remainders over. By a codicil to his will, dated 30th January, 1770, the testator bequeathed to certain other trustees the sum of £20 per annum for ever, to be paid to the officiating clergyman of the Church of Mooretown, payable out of the lands of Grange, the said £20 yearly in trust for the use of six poor men and four poor widows of men who had been tenants of some parts of his estates in Tyrone or Monaghan, the same to be divided among them, a preference being always given to members of the Established Church, and to the poorest and most worthy of them, and to be continued from time to time to six poor men and four poor women, regard being always had to the poor of his own estate.

By a second codicil to his will, dated the 3rd February, 1770, the testator recited the said devise in his will to his said trustees in trust to pay the debts, legacies, and annuities in the said will mentioned, and subject thereto to Andrew Stewart for life, with remainder to his sons in tail male. He then goes on to say as follows:— “Now I, the said Acheson Moore, do hereby revoke, annul and make void all the said remainders and limitations of my said estate in the said will mentioned, and do hereby alter and make void my said will as to the limitations of my said...