Re Adair and Settled Land Act

• Jurisdiction: Ireland
• Judgment Date: 09 July 1909
• Date: 09 July 1909
• Docket Number: (1909. No. 641.)
• Court: Chancery Division (Ireland)

In re Adair and Settled Land Act.

Wylie, J. (for Barton. J)

(1909. No. 641.)

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.

1909.

Settled Land — Tenant for life — Forfeiture for non—residence — Miilitary service — “Refuse or neglect” to reside — Sale under Settled Land Act, 1882(45 & 46 Vict. c. 38).

Held, that the tenant for life was entitled to exercise the power of sale given by the Settled Land Act, 1882, without risk of forfeiture.

Held, also, that the residence required by the condition was personal residence; but that absence from home on military or naval duty would not amount to a refusal or neglect to reside within the meaning of the condition.

Originating Summons.

Application on behalf of Major-General William Thompson Adair, the tenant for life under two indentures of settlement, each dated 13th March, 1893, for an order, (1) notwithstanding the condition in the settlements mentioned, requiring the tenant for life of the lands settled to reside for six months at least in each year in the mansion house of Loughanmore as the family residence of such person, that the said Major-General William Thompson Adair, or the successive tenants for life of the said lands, are entitled to exercise the power of sale conferred by the Settled Land Acts upon the tenants for life, of all or any part of the lands and hereditaments comprised in the said settlements, without incurring the forfeiture attached to said condition; (2) that trustees for the purposes of the Settled Land Acts be appointed; (3) defining the condition of residence in the said mansion house in the case of (a) an officer in His Majesty's Army or Navy while on the active service list; (b) a tenant for life not engaged or liable to be engaged in the public service; and (4) whether, if the applicant maintains an establishment in the said residence, with the intention of residing there as required by said condition, he would forfeit his estate by failure to actually dwell therein during six mouths in the year, owing to absence abroad in the service of His Majesty the King. By both said settlements it was provided and declared that every person who should, under the limitations therein contained, become actually entitled as tenant for life or tenant in tail by purchase to the possession or receipt of the rent and profits of the said lands should, if of full age, for a period of six months at least (and not necessarily consecutively) in each year, dwell and reside in, and at all times keep in good and suitable order and condition, the said mansion house as the family residence of such person, and that if the person so entitled as aforesaid should at any time refuse or neglect to dwell and reside as aforesaid in, or keep in good and suitable order and condition the said residence, the limitations therein contained to the use of such person as tenant for life or tenant in tail should absolutely determine and become void. Applicant, in his affidavit, supporting the application, set out that he was a Major-General in the Royal Marines on the active service list, and as such, was liable to be called upon to serve abroad, in which case it would not be in his power to comply with the condition of residence laid down by the settlements. He further stated that negotiations had taken place with a view of selling portion of the lands under the provisions of the Land Purchase Acts to the occupying tenants; and he desired, if it should be advantageous that such sale should be carried out, that trustees for the purposes of the Settled Land Acts should be appointed in order to enable him to carry such sales into effect.

Walker, K.C., for the applicant:—

Conditions of residence similar to that contained in the settlements in this case have been held not to prevent the tenant for life exercising the power of sale conferred by the Settled Land Act. In re Paget's Settled Estate(1); In re Haynes; Kemp v. Haynes(2); In re Trenchard; Trenchard v. Trenchard(3). A condition which would prevent service in the naval or military forces of the Crown is against public policy: In re Beard(4). [Counsel also referred to In re Moir; Warner v. Moir(5); Clavering v. Ellinson(6); In re Thompson's Will(7); Partridge v. Partridge(8).]

Bates, K.C., on behalf of the infant remainderman said he would derive no...