Pennefather v Pennefather

• Jurisdiction: Ireland
• Judgment Date: 21 April 1873
• Date: 21 April 1873
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

PENNEFATHER

and

PENNEFATHER.

In re Browne's Estate 13 Ir. Ch. R. 283.

Blake v. MaxwellUNK 2 B. & B. 38, note.

Garth v. TownsendELR L. R. 7 Eq. 220.

Poulson v. WellingtonENR 2 P. Wms. 433.

Wilson v. Piggott 2 Ves. Jun. 351.

Hammersley v. BielENR 12 cl. & Fin. 45.

Carver v. RichardsENR 27 Beav. 488.

Minchin v. Minchin I. R. 5 Eq. 178, 258.

Bamfield v. PophamENR 1 P. Wms. 54.

Dashwood v. Peyton 18 Ves. 27.

Smith v. FitzgeraldENR 3 V. & B. 2.

Adams v. AdamsENR 1 Hare, 537.

Harvey v. StraceyENR 1 Drew, 73.

Re Morgan 7 Ir. Ch. R. 18.

Garth v. Towmsend Ubi sup.

Re Morgan Ubi sup.

Adams v. Adams Ubi sup.

Lees v. Lees I. R. 5 Eq. 549.

Garth v. TownsendELR L. R. 7 Eq. 223.

Andrews v. EmmotENR 2 Bro. C. C. 303.

Denn v. Roake 10 Moo. 142.

Carver v. RichardsENR 27 Beav. 495.

Adams v. AdamsENR 1 Hare, 540.

Andrews v. EmmotENR 2 Bro. C. C. 303.

Innes v. SayerUNK 3 M. & G. 606.

Hunloke v. GellENR 1 Russ. & M. 525.

Maples v. BrownENR 2 Sim. 326.

Carver v. RichardsENR 27 Beav. 496.

Westcott v. CullingfordENR 3 Hare, 269.

Wright v. WyvellENR 2 Vent. 56.

Westcott v. CullingfordENR 3 Hare, 272.

Wilson v. Piggott 2 Ves. Jun. 351.

Garth v. TownsendELR L. R. 7 Eq. 221.

Wilson v. Piggott 2 Ves. Jun. 351.

Poulsonv. WellingtonENR 2 P. Wms. 533.

Blake v. MarnellUNK 2 b. & B. 38, n.(a).

Power of appointment under settlement — Execution by will — Wards of Court — Costs of "Special Case" and of Appeal.

THE IRISH REPORTS. [I. R.' On the marriage of P. certain of his lands were vested in trustees for a term of years upon trust (inter alia), in the events which happened, to raise £4000 for the children of the marriage, payable as P., or, in default, his widow, should by deed or will appoint, and, in default of appointment by either parent, equally, in the usual mode. P., by his will, directed all his lands, including those comprised in the said term, to be sold, and out of the produce gave porÂÂtions to his five sons, and £1000 each to three of his daughters. By a codicil he further gave £1000 each to his two remaining daughters, and then added : " I hereby direct that no part of the produce of my lands shall be paid to any of my sons until the said sums of £1000 each shall have been paid to each of my said five daughters, or £5000 among the survivors of them, over and above and in addition to the equal distributive share of the £4000 mentioned in my marriage settlement, which each of them are (sic) entitled to :" Held (reversing the decree of the Vice-Chancellor) that P. had not thereby executed the power. The children having been made wards of Court on their father's death, and, pursuant to orders in the minor matter, a " special case" under the Chancery Act of 1867, having been stated for the determination of the validity of the appointment, and the decision subsequently appealed from-Held (affirming the decree of the Vice-Chancellor) that the costs, both of the " special case" and of the appeal, were payable out of the fund. APPEAL from a decree of the VICE-CHANCELLOR, dated the 5th of November, 1872, and made upon a special case stated under ." The Chancery (Ireland) Act, 1867" (1). (1) The following is the judgment of THE VICE-CHANCELLOR :- In this case I have arrived at a con-elusion favourable to the Plaintiffs' claim. The rule of law on the question which the case raises is well established, and it is this : that a power maybe deemed to be exercised by an instruÂÂment not formally executed according to the conditions to which the power issubject, where an intention to exercise it may be gathered from the whole inÂÂstrument, or where there is manifestly an intention to benefit certain objects, and where that can only be accomÂÂplished by an exercise of the power. It is necessary, in the present case, to consider the circumstances of the tesÂÂtator's property, in order to arrive at his intentions more accurately and VoL. VII.] EQUITY SERIES. The case, which was filed on the 21st of June, 1872, set out that, by indenture of settlement, dated the 15th of November, 1852, and made on the occasion of the marriage of Mr. PenneÂÂfather and Kate Scott, the former demised certain lands to trustees for a term of 1000 years, to commence from the date of the marriage, upon trust, among other things, to raise out of the premises, in case there should be three or more children of the marriage, the sum of £4000, for their portions, with power to Wm. Pennefather to appoint the same among them by deed or will in the usual form, and, in default of its exercise by him, with a similar power to his intended wife, in case she should survive him ; and in de completely. [His Honor then stated the creation and trusts of the term of 1000 years, as set out in the " special case," and continued :] There was no settlement of the lands subject to these charges, and the fee remained in the testator himself. He proceeds by his will and codicils to make the proviÂÂsion which he thinks suitable to the condition and circumstances of his family. He had ten children, all enÂÂtitled, in default of appointment either by himself or his widow, to equal disÂÂtributive shares in the £4000; for no provision is by the settlement made for one child in preference to another, and there was but £4000 in all provided by it for their portions. I have not read the will, but I understand it does not affect the present question. It appears from the firs codicil that the objects • of the testator's special consideration were his five daughters. Accordingly, after certain other provisions, he proÂÂceeds to use the words which have given rise to the present question, viz., " I hereby direct that no part of the produce of the sale of my lands shall be paid to any of my sons until the said sums of 21000 each shall have been paid to each of my said five daughters, or 25000 among the surÂÂvivors of them, over and above and in addition to the equal distributive share of the £4000 mentioned in my marÂÂriage settlement which each of them are entitled to." It appears that by his will the testator directed that his sons should receive certain money portions out of the produce of the sale of the lands. Then, by this codicil, he plainly intended that his sons should take noÂÂthing out of the produce of the sale of his lands until his daughters had been provided for in the way he thought suitable-that is, by giving them each 21000, over and above their equal disÂÂtributive share of the £4000 provided by the settlement, and that they were each to take that equal distributive share, and £1000 in addition to it, after deducting the paramount charge of £4000. It would perhaps be going too far to say that by the act of making the codicil he intended to execute the power; his language certainly does not show an intention not to exercise it, and it may perhaps be capable of being construed as an express execution of it ; but it is not necessary for me to, THE IRISH REPORTS. [I. R. fault of both such appointments, then for all the children share and share alike, vesting and payable at the ordinary periods reÂÂspectively. There were ten children of the marriage (who were all minors on the institution of the present proceedings), viz., five daughters, the Plaintiffs, Mary, Catherine, Ellen, Susan, and Frances ; and five sons, the Defendants. Wm. Pennefather made his will on the 1st of October, 1866, but did not thereby exercise the power of appointment given him by his marriage settlement. On the 29th of May, 1869, he exeÂÂcuted a codicil, of which the following is the material portion : 16 Whereas by my said will I have directed that all my landed property should be sold within a reasonable time after my death : now, I hereby declare it to be my will that all my landed property should not be sold until after the expiration decide that point. I think it sufficiently indicates his intention that each of his ten children should take an equal porÂÂtion of the .24000 ; for if, as it was well put by counsel for the Plaintiffs, the words amount to the expression of an intention to disclaim the exercise of the power, the result would have been (by his widow's subsequently exercising it), to make it possible for one daughter to get, suppose, £3999, or for any one of his sons to get £3999, and to vary these extremes in any way, and that certainly is not consistent with his exÂÂpressed wish that each of his daughters should take an equal portion of the £4000. He therefore intended, I think, that each of them should take a sum of £400. If he had said, " till the sum of X400 be paid to each of my daughters," that, in my opinion, would not be a stronger expression of intention than the words he has used. I think, therefore, there is a sufficient indication of intention on the face of this codicil that each daughter should take that which she could only take by his exerÂÂcising the power. I shall therefore declare that each daughter takes £400 under the settlement and will, and, in addition to that, the legacy given to her out of the proceeds of the sale of the testator's lands. The question having been a very fair one to raise, the costs of this proceeding will come out of the fund." The curial portion of His Honor's decree relating to the execution of the power was in these words : " This Court doth declare that the codicil of the 26th day of May, 1869, to the said will of the said William Pennefather operated as an execution by him of the power of appointment reserved to him by the said deed of marriage settlement of the 15th of November, 1852, over the sum of £4000 raiseable under the trusts of the term of 1000 years thereby created as and for the portions of the children of the said William PenneÂÂfather and Kate Pennefather, alias Scott." Yob. VII.] EQUITY SERIES. of five years from this day, or such further time as may be mentioned in any of the mortgages affecting my lands as the time within...