Miley v Carty

• Jurisdiction: Ireland
• Judgment Date: 17 October 1927
• Docket Number: (1927. No. 3,978.)
• Date: 17 October 1927
• Court: High Court (Irish Free State)

Miley v. Carty and Miley

In the MATTER of the Trusts of the Will of MATTHEW LAWLESS, deceased; ELEANOR O'CONNELL MILEY

Plaintiff

and

MARY KATE CARTY and VALENTINE MILEY

Defendants.

(1927. No. 3,978.)

Will - Devise of real estate - Agreement to sell under the Land Purchase Acts entered into subsequent to devise - Death of testator - Sanction of advance - Conversion - Ademption.

M. L. made his will, whereby he specifically devised certain lands. Subsequently he entered into an agreement with the tenant of portion of the lands that, in the event of the Irish Land Commission advancing the sum of £500 Guaranteed Land Stock under the Land Purchase Acts to the tenant, the tenant would purchase and he would sell the holding for that sum, and the agreement also provided that the parties would execute the formal Land Commission agreement for sale on the terms of this agreement. M. L. died shortly afterwards, and his executors entered into a formal agreement under the Land Purchase Acts with the tenant for the sale of the holding at £500, the sale to be carried out by vesting order, and the lodgment of the agreement to be deemed to be an application for an advance of the purchase money under the Land Purchase Acts. The advance was sanctioned, and the sale carried out. A summons having been issued to determine whether the Land Stock which represented the purchase money passed under the specific devise of the lands or as personalty under the gift of the residue:

Held, that the land stock passed under the residuary clause in the will as personalty as and from the date on which the Land Commission agreed to advance the purchase money.

Lawes v. Bennett, 1 Cox Ch. Cas. 167; Weeding v. Weeding, 1 J. & H. 424; and Mooney v. M'Mahon, [1911] 1 I.R. 125, applied.

Drant v. Vause, 1 Y. & C. Ch. Cas. 580; and Emuss v. Smith, 2 De G. & Sm. 722, distinguished.

In re Huddlestone's Estate, [1921] 1 I.R. 1; and In re Marlay, [1915] 2 Ch. 264, commented on.

Originating Summary Summons for the determination of the question as to whether, upon the true construction of the will of Matthew Lawless, the devise of the lands of Riverview and Scarloughbush contained in the said will included the sum of £414 11s. 9d. Guaranteed Land Stock, representing the sale of portion of the said lands of Riverview, under the provisions of the Irish Land Acts, or whether the said stock passed under the residuary clause in said will as personalty. The material portions of the will are set out in the judgment.

Cur. adv. vult.

Johnston J. :—

Matthew Lawless, by his will, made on March 28th, 1895, devised "My lands of Riverview and Scarloughbush, together with the rents payable by the tenants of part thereof," to the testator's wife, Annie Lawless, for life, and he provided that after her death "my will is that said lands shall be forthwith sold, and the proceeds divided equally between my brother, Anthony Lawless; my sister, Eliza Callaghan; and my sister, Bridget Hallen." He bequeathed a number of pecuniary legacies, including one of £1,000 to Andrew Lawless and to Bridget Hallen, and one of £500 to Eliza Callaghan. The residue of his property, "and every part thereof," was then bequeathed to the testator's wife for her own use absolutely. By a codicil, dated October 6th, 1896, he revoked the legacies of £1,000 to Andrew Lawless and Bridget Hallen, and substituted therefor legacies of £500. This was the only provision in the codicil.

By an agreement in writing, dated November 25th, 1896, in which it was recited that William Murphy held from Matthew Lawless part of the lands of Riverview under a...