Mountcashell v Smyth

• Jurisdiction: Ireland
• Judgment Date: 02 March 1894
• Docket Number: (1892. No. 916.)
• Date: 02 March 1894
• Court: Court of Appeal (Ireland)

Earl of Mountcashell

and

Smyth (1).

Appeal.

(1892, No. 916.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Will — Republication by codicil — Bate of — Bringing down the will to the date of the codicil — Contrary intention — Settlement — Covenant to settle.

R. S., by will dated the 30th April, 1836, devised all his estates to the use of his daughter Charlotte S., for life, with remainder to her first and every other son in tail male, with remainder to six other persons (brothers and nephews of the testator) as tenants for life, with remainder to their first and other sons in tail male, with remainders over. The testator provided that it should be lawful for his said daughter, or any person who should be by virtue of the said limitations in the actual possession of or entitled to the receipt of the rents of the lands thereby devised, at any time, whether sole or covert, by any deed or instrument in writing to limit or appoint to the use of or in trust for any and every husband or wife whom his said daughter, or such person as aforesaid, should or might thereafter marry, for his or her life, any annual sum or sums of money or yearly rentcharge or rentcharges at the yearly rate of £8 for every £100 by the year of such portion as such husband or wife should pay or settle, not exceeding in the whole the yearly sum of £1000.

By a codicil to his will, dated the 18th June, 1855, the said E. S. limited an estate in tail female to the daughters of his daughter Charlotte, on the condition that if they married, they and their husbands should take the name and arms of S. The testator then provided that, his daughter Charlotte S. having married C. W. M., he bequeathed to her the whole of his estates and property for life, on condition that all the regulations, stipulations, and reservations in his will should be carried out by her and her husband. The testator added a second codicil dated the 18th April, 1858, which did not alter or revoke any of the provisions already mentioned.

In 1848, on the marriage of Charlotte S. with C. W. M., by indenture dated the 17th January, 1848, sums of £10,000, secured by mortgage, the fortune of C. W. M., and £10,000 Irish currency, the fortune of Charlotte S., were assigned to trustees upon trust to pay £100 a-year to the wife for pin-money, subject thereto upon trust to pay the income to C. W. M. for life; and after his death, in case the wife survived, to pay her £400 a-year for jointure; and after the death of husband and wife in trust for the children as the husband should appoint; and in default of such appointment, as the wife should

appoint; and, in default of appointment by either husband or wife, then for the children equally.

There were four children issue of the marriage, namely, Richard Charles, Harriette Gertrude, Helena, and Charlotte. R. S. the testator died in 1858. By indenture, dated the 10th April, 1865, Charlotte S., in pursuance of the power in the will, granted to C. W. M. a rentcharge of £800 a-year for his life, to commence from her death, and appointed the lands devised by the will to W. as trustee for 200 years to secure the same. After Richard Charles came of age the entail was barred, and by deed dated the 12th January, 1881, the estates were resettled, after the death of Charlotte S., to the use of Richard Charles for life, with remainder in tail male, with remainder to Harriette Gertrude for life, with remainders over. Richard Charles died in 1888 leaving an only child, Claude, who died an infant. Charlotte S. died in 1892, whereupon Harriette Gertrude became entitled to the estates, but refused to pay the rentcharge of £800 a-year:—

Held, (affirming the decision of Porter, M.R.), 1, That, although the codicils operated as a republication of the will, and for certain purposes brought down the date of the will to that of the codicils, they did not alter the construction of the will, and therefore the words “hereafter” and “may marry” were to be read as of the date of the will.

2. That the consideration for the raising of the rentcharge of £800 a-year, as prescribed by the will of 1836, was satisfied by the terms of the settlement of 1848 in settling the mortgage for £10,000.

Richard Smyth, by his will dated the 30th April, 1836, devised all his estates of Ballynatray with its sub-denominations, of which he was seized in fee, and the lands of Gortgarriffe, in the county of Limerick, of which he was also seized in fee, and all his estates in Cork and Waterford, to his daughter Charlotte Mary for life, with certain limitations over, which, so far as material, will be found stated in the judgment of the Lord Chancellor, infra, p. 356. The will contained a provision that it should be lawful for his daughter, or any person who by virtue of the said limitations should for the time being be in the actual possession of or entitled to the receipt of the rents and profits of the hereditaments thereby devised, at any time or times, or from time to time, either before or after marriage, and whether sole or covert, by deed or instrument in writing, revocable or irrevocable, to limit or appoint to the use of or in trust for any and every husband or wife whom his said daughter, or such person as aforesaid, should or might thereafter marry, for his or her life, any annual sum or sums of money or yearly rentcharge or rentcharges, at the yearly rent of £8 for every £100 by the year, of such portion as such husband or wife should pay or settle on his said daughter or such person as aforesaid, not exceeding in the whole the yearly sum of £1000. And for the purpose of securing such annual sum or sums or yearly rentcharges so to be appointed as aforesaid, he declared and devised that it should be lawful for her or them to limit and appoint the usual powers and remedies for recovering and enforcing payment thereof by distress and entry by perception of the rents and profits of the said hereditaments so to be charged as aforesaid, to any person or persons whomsoever for any term or terms of years as to her or them should seem meet, but so that any such term be made to determine on the death of the person for the benefit of whom the same should be created, and the payment of the arrears of his rent-charge, and the expenses incurred by the non-payment thereof.

The testator made a codicil to his will, dated the 18th June, 1855, in the following terms:—“Having made alterations in said will, and having revoked or cancelled all other codicils made by me, my will and desire now is that the clause in p. 5 of my will, and commencing at the seventh word of the twenty-eighth line (‘and in default, &c., &c., and ending of her body’), being the sixth, seventh, and eighth words of the thirty-ninth line of said p. 5 respecting the daughters of my child Mary (who has now three daughters) be inserted, and take place between the words ‘Smyth’ (here insert the clause ‘then’), being the eighth and ninth words of the thirty-ninth line of the second page of said will, as my wish and desire is that they and such daughters as said Charlotte Mary may have may come under the intent and meaning of said clause, and that they should take precedence of my late brother Henry's children and all others as in succession mentioned in my said will, on the conditions that they if they marry, that they do so with the consent of their parents and guardians; and that they and their husbands do take and assume the arms of ‘Smyth,’ and likewise the surname of ‘Smyth’ and their descendants do likewise from time to time for ever. And my further desire and wish is that they should strictly observe all the stipulations, limitations, and restrictions as contained in my said will, and be subject to the penalties thereto for non-compliance with what is set forth in said will, to be observed by those who may inherit my estates and property. My daughter, Charlotte-Mary, having married the Hon. Charles W. More, I leave and bequeath to her the whole of my estates and property for her own and separate use during her life, but first paying out of same all my just and lawful debts, or the interest thereof, as the creditors may desire, as well as those persons to whom I have left legacies. Likewise I do curtail and limit the sum of £15,000 to the sum of £8000 for younger children, to be divided among them at such times and portions as my said daughter Charlotte may think proper to allocate among her said younger children; and I leave my estates and property subject thereto. But should my said daughter Charlotte have a son, I trust his education and any other son she may have may be closely attended to, and should hope that her husband, the Hon. Charles, may closely attend to the same, as well also to the education of all their children. When I bequeath my estates and property to my said daughter for her life, I do so on the express conditions that all the regulations, stipulations, and reservations as mentioned in my said will be carried out by her and her husband as fully as set forth in said will, and if possible more fully to accomplish my wishes as therein detailed. My further will and desire is that whoever inherits my estates and property is only to consider himself or herself as tenants for life to the same for ever.”

On the 18th April, 1858, the testator made a second codicil to his will, not material to the questions raised in this case.

In the month of January, 1848, the plaintiff (who was then the Hon. Charles William More) married Charlotte Mary Smyth, and previous thereto two deeds were executed. By the first, a mortgage, dated the 17th January, 1848, and made between Stephen, Earl of Mountcashell, of the first part, the plaintiff of the second part, the said Richard Smyth and Charlotte Mary Smyth of the third part, and Alfred William Cleverly and William St. Leger Alcock...