Mooney v M' Mahon

JurisdictionIreland
JudgeM. R.
Judgment Date30 January 1911
Year1911
CourtCourt of Appeal (Ireland)
Date1911

In re Owen Mooney'S Estate

Mary Mooney (Continued in the name of Peter Coyle)
Plaintiff
and
Patrick M'Mahon, His Majesty's Attorney-General for Ireland, the Venerable Archdeacon P. M'Glone, and Margaret M'Mahon,
Defendants.

M. R.

Appeal.

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.

1911.

Will — Charitable devise — Estate in lands — Death of testator within three months — Registration — Estate passing — 7 & 8 vict. c. 97, s. 16 — Local Registration of Title (Ireland) Act, 1891, sects. 25 and 35.

A., the owner in fee of lands purchased by him (prior to the passing of the Local Registration (Ireland) Act, 1891), under the provisions ef the Irish Land Purchase Acts, subject to an annuity to the Irish Land Commission, purported to divide the lands into four lots, which in 1905 he sold to purchasers, subject to apportioned parts of the annuity, the sale in each case being made subject to the consent of the Irish Land Commission being obtained to such sub-division and apportionment, and power being reserved to the vendor to annul the sale in case such consent should be withheld. Subsequently, each purchaser was let into occupation of his portion of the lands under an agreement which provided that he was to be regarded as in possession temporarily only, and that in the event of the sale being annulled he should be chargeable with an occupation grant. A., who had never been registered as owner of the lands under the Local Registration of Title (Ireland) Act, 1891, died prior to the consent the Irish Land Commission being obtained to the said sub-division, having on the day prior to his death executed a will, by which, without expressly referring to the said lands, or the purchase-moneys payable therefor, he devised and bequeathed the residue of his property for charitable purposes. Some time after the testator's death, the consent of the Irish Land Commission having been then obtained to the said sub-division, the executors of his will were registered as owners of the lands, and, thereupon, executed transfers to the four purchasers, each of whom became registered as owner of the portion of the lands purchased by him.

Held, by the Court of Appeal (affirming the decision of the Master of the Rolls), that the testator had an “estate” in the lands at the time of his death, within the meaning of section 16 of 7 & 8 Vict. c. 97; and that, accordingly, the residuary devise of the said lands for charitable purposes failed.

Summons.

Owen Mooney, prior to the passing of the Local Registration of Title (Ireland) Act, 1891, purchased the lands of Anveyerg, Drumcreeghan, and Drumhillagh, under the provisions of the Irish Land Purchase Acts, and the said lands were vested in him in fee subject to a terminable annuity payable to the Irish Land Commission.

On the 31st January, 1905, Owen Mooney purported to divide the said lands into four holdings, which he put up for sale by public auction on the 31st January, 1905, subject to apportioned parts of the annuity. The conditions of sale provided that each lot was offered for sale strictly subject to the approval of the Irish Land Commission to the sub-division and apportionment aforesaid, and that in the event of the Irish Land Commission objecting to sub-divide the lands comprised in the vendors vesting order, and to apportion the annuity, the vendor should be entitled to annul the sale.

Three of the lots were sold on the 31st January, 1905, and the fourth on the 10th day of March, 1905, and each purchaser was let into occupation of the lands purchased by him under an agreement made between the vendor and the four purchasers respectively on the 31st March, 1905, whereby it was (inter alia) provided that each purchaser agreed that he was let into occupation temporarily, and not into the full ownership, that in case the sale of any lot should be annulled by the vendor, the purchaser of such lot would thereupon deliver up quiet possession of the same; and that in case any sale should be annulled, the purchaser of the lot should pay to the vendor an occupation rent to be thereafter determined. The said Owen Mooney made his will on the 9th day of October, 1905, whereby, after certain pecuniary bequests, he directed his executors to sell his farms of land in Carrickabawn and Mullinanault (to which this appeal did not relate), and all his stock, crop, and chattels thereon, and to lodge the proceeds of such sale in bank; he bequeathed the interest on same, and on all other moneys, to his wife for her life, and after her death (subject to a legacy for masses) he bequeathed and devised “the residue of my property of whatsoever nature for charitable purposes to be distributed, share and share alike, between the Catholic convents in the towns of Cootehill, Castleblayney, and Monaghan.”

Owen Mooney died on the 10th October, 1905, and on the 30th March, 1906, letters of administration with the said will annexed of his personal estate were granted to his widow, Mary Mooney, the above-named plaintiff; the executors named in the will, and the Attorney-General for Ireland (as the person entitled to administration with said will annexed) having duly renounced.

Owen Mooney during his lifetime had applied to be registered under the provisions of the Local Registration of Title (Ireland) Act as full owner of the said lands of Anveyerg, Drumcreeghan, and Drumhillagh, but such registration had not been completed at the time of his death. After his death the plaintiff, Mary Mooney, applied to be registered as limited owner of the lands, but this application was refused by the registering authority. Subsequently, however, the registering authority agreed to register the executors of Owen Mooney's will as owners, notwithstanding that they had renounced probate of the will, and this registration was completed on the 15th November, 1906. Four separate transfers were on the 17th December, 1908, executed by the said executors to the four purchasers of the respective holdings purchased by them, and these purchasers became registered as full owners, each of his own holding, the Land Commission having, on the 18th October, 1907, consented to the sub-division of Owen Mooney's original holding, and to the apportionment of the annuity. The present summons was brought by the plaintiff as personal representative of Owen Murray, against the heir-at-law of the deceased, one of his next-of-kin, and the Attorney-General for Ireland, for the determination of the question whether, in the events which had happened, the bequests and devise contained in the will for charitable purposes were valid, and if so to what extent—(a) as regards the lands of Anveyerg, Drumcreeghan, and Drumhillagh; (b) as regards the lands of Carrickabane and Mullinanault; and (c) as regards the remainder of the testator's estate and effects.

M'Cann, K.C., and Collins, for the plaintiff.

Molony, K.C., and Dudley White, K.C., for the Attorney-General in support of the alleged charitable gift.

Dromgoole, K.C., and Calvert, for the heir-at-law of Owen Mooney, the deceased testator, contra.

The Master of the Rolls:—

I have heard a most able argument from Mr. Molony and Mr. Dudley White on behalf of the Attorney-General, and when I say argument I may extend that word, because neither of...

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4 cases
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