Parnell v Boyd

• Jurisdiction: Ireland
• Judgment Date: 28 April 1896
• Date: 28 April 1896
• Court: Court of Appeal (Ireland)

Parnell

and

Boyd (1).

Q. B. Div.

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1896.

Will — Absolute gift followed by gift over of property undisposed of — Estate pur autre vie — Power of sale — Election — Disclaimer.

B., who was possessed of a house in Stephen's-green, Dublin, held under a lease for three lives, by his will dated the 27th May, 1833, devised to his eldest son J. R. B. his house in Stephen's-green, with all the furniture therein (excepting such articles as his wife might select to take to Ballymacool), his pictures, books, private books of prints, coins, wines, and everything contained therein, except plate and linen, he paying the rent thereof, and in case that his said son J. R. B. should not think proper to occupy or keep his said house, he might be at liberty to sell the same, together with (if he thought proper) the pictures, coins, wines, &c.; but it was the testator's wish that his books should not be sold, but remain in his family; the amount of the sale to be applied to his own use and benefit; and in case his eldest son J. R. B, should die without having a family before he should have sold the said house, the testator devised the house in the same manner to his second son W. B.; and in case he should so die, the house was to be sold, and the proceeds divided among his daughters.

The testator died in 1836, and J. R. B. entered into possession. He died in 1890, having by his will devised all his property to the defendant, who entered into possession of all the property except the house in Stephen's-green, Dublin. By deed poll, dated the 16th March, 1895, the defendant disclaimed the interest in this house. In an action against the defendant for arrears of rent of this house:—

Held (affirming the judgment of the Queen's Bench Division, from which Johnson, J., dissented on the question of construction), that J. R. B. took the house absolutely under the will of the original testator, and not for life only, and that it was not competent for the defendant to disclaim one portion of the property devised to him by the will of J. R. B., while accepting the rest.

Motion to enter judgment for the plaintiffs.

In and prior to the year 1826, John Lloyd, Robert Ward, Mary Anne Symes and Henry Mahon were seized in fee as tenants in common of two undivided third parts of the house, No. 76, Stephen's-green, Dublin, and John Parnell, then a minor, was seized in fee of the other third as tenant in common with them.

By indenture dated the 13th June, 1826, John Lloyd, Robert Ward, Mary Anne Symes and Henry Mahon, demised the two undivided thirds of said premises unto John Boyd, his heirs, and assigns, for three lives and the survivors and survivor of them at the rent of £80 of the late currency of Ireland equivalent to £73 17s. sterling.

John Parnell attained age in 1833, and by indenture dated the 6th December, 1833, he demised the undivided third share in the said premises to John Boyd for the lives of the same three persons and the survivors and survivor of them at the rent of £36 18s. 6d. making the total rent £110 15s. 6d.

John Boyd made his will on the 27th May, 1833, the material part of which was as follows:—“I give and bequeath to my eldest son John Robert Boyd, my house in Stephen's-green with all the furniture therein (excepting such articles as my wife may select to take to Ballymacool), my picture books, prints, books of prints, coins, wine, and everything contained therein, except plate and linen, he paying the rent thereof; and in case that my said son John Robert shall not think proper to occupy or keep my said house he may be at liberty to sell the same together with, if he thinks proper, my pictures, coins, wines, &c., but it is my wish that my books should not be sold but remain in my family; the amount of the sale to be applied to his own use and benefit; and in case my eldest son John Robert should die without having a family before he shall have sold my said house, then and in that case I give and devise my said house in the same manner to my second son William Boyd, and in case he shall so die, I desire that my house, pictures, and coins may be sold and the produce divided among my daughters then living. I give and devise to my wife during her life, my plate, and linen, to be used by her as hitherto, and upon her death I give all my plate and linen to my eldest son John Robert, and if he dies unmarried, to my second son William, and if he dies unmarried, to the eldest of my daughters who shall be married and have issue alive.” The testator named his sons John Robert and William residuary legatees (1).

John Boyd died on the 21st October, 1836, after which John

Robert Boyd, went into possession. John Robert Boyd made his will on the 27th March, 1890, whereby he devised to his nephew William Henry Porter, the defendant, all his landed property on condition that he should within six months after the testator's death, take the name and arms of Boyd. John Robert Boyd died without issue on the 30th March, 1891, and the defendant assumed the name and arms of Boyd within six months from the death of John Robert Boyd and entered into possession of the landed property of the testator, save the house in question, which had turned out to be onerous. On the 16th March, 1895, William Henry Boyd executed a deed poll disclaiming all interest in the house in Stephen's-green.

One of the lives in the original lease was still in being, and the estate of the lessors in the original lease became vested in the plaintiffs, who brought an action against William Henry Boyd for £387 13s. 8d., being three and a-half years' arrears of rent of the premises. The case was tried before Gibson, J., without a jury, on the 28th June, 1895, who found for the defendant, reserving leave to either party to move for judgment. The plaintiffs applied to the Queen's Bench Division for judgment.

Houston, Q.C. (W. P. Ball, with him), for the plaintiffs.

Matheson, Q.C., and Brunskill, for the defendant.

Cur. adv. vult.

Houston, Q.C. (W. P. Ball, with him), for the plaintiffs.

Matheson, Q.C., and Brunskill, for the defendant.

Holmes, J.:—

This action has been brought to recover arrears of rent due under two leases by which the house, 76, St. Stephen's-green, in this city, was demised for three lives, one of which is still in being. The reversion expectant on these leases now belongs to the plaintiffs, who allege that at the several dates at which the rent sued for became due, the leasehold interest was vested in the defendant. As the burden of the rent and covenants has for some time past largely exceeded any benefit that the tenant can derive from the property, the defendant is naturally reluctant to accept the responsibility which the plaintiffs seek to attach to him; and the object of the present litigation is to ascertain whether the former has been made the leaseholder by force of circumstances against his will.

The original lessee, a gentleman of means and position named

John Boyd, occupied the house as a town residence; and probably never anticipated the anxiety of his grandson to keep clear of what was in his day a valuable property. The first question in the case arises upon a devise in John Boyd's will. This document was executed before the Wills Act; and, although in one way elaborately prepared, it shows neither skill in conveyancing nor much appreciation of legal phraseology. Accordingly, in interpreting it, little assistance is to be gained from comparing one portion of it with another, or from those canons of construction that have given to terms of art a certain value and significance.

The following are the words in which the house in question is disposed of:—“I give and bequeath to my eldest son, John Robert Boyd, my house in Stephen's-green, with all the furniture therein (excepting such articles as my wife may select to take to Ballymacool), my pictures, books, prints, books of prints, coins, wine and everything contained therein, except plate and linen, he paying the rent thereof; and in case that my said son John Robert shall not think proper to occupy or keep my said house, he may be at liberty to sell the same together with, if he thinks proper, my pictures, coins, wine, &c., but it is my wish that my books should not be sold, but remain in my family, the amount of the sale to be applied to his own use and benefit: and in case my eldest son John Robert should die without having a family before he shall have sold my said house, then and in that case I give and devise my said house in the same manner to my second son William Boyd; and in case he shall so die I desire that my house, pictures, and coins may be sold and the produce divided among my daughters then living. I give and devise to my wife, during her life, my plate and linen, to be used by her as hitherto, and upon her death I give all my plate and linen to my eldest son John Robert, and if he dies unmarried, to my second son William, and if he dies unmarried to the eldest of my daughters who shall be married and have issue alive.”

It was argued by Mr. Matheson that the effect of this devise was to give the house to John Robert Boyd for his life only, and that, as the defendant's title to it depends upon John Robert Boyd having had power to dispose of it by will, the consequence is, that it never vested in the defendant.

It is no longer necessary to discuss the nature of estates pur autre vie and the rules that govern their transmission. The doubts once existing on this subject have been long since resolved, and it would be difficult to add anything profitable to the elaborate judgment of Brady, L.C., in Brenan v. Boyne (1). I assume that if this will contained no other disposition of or reference to the house in St. Stephen's-green, beyond a...