Re, Alexander's Estate

• Jurisdiction: Ireland
• Judgment Date: 02 July 1938
• Date: 02 July 1938
• Court: High Court

In re Alexander's Estate

Estate of MARY JANE ALEXANDER

Owner.

Supreme Court.

Merger - Fee simple estate - Charge on estate in fifth shares - Two fifth shares of charge mortgaged - Vesting of estate and charge in same person.

To prevent the merger of a charge in the inheritance of the estate upon which it is charged there must, in the absence of evidence of intention, be either existing circumstances, or at least a reasonable probability of their occurrence, in which it would be to the advantage of the owner of the charge and of the estate to preserve their separate existence.

In 1921, M. J. A. became tenant in tail in possession of freehold lands of which she had previously been tenant in common in tail with another. At the same time she became entitled absolutely to three fifth shares of a charge of £6,000 on the lands and to the equities of redemption of a further fifth share subject to a mortgage to secure £300 and of the remaining fifth share subject to a mortgage to secure £500. Previously she had been entitled to the equity of redemption of one fifth share and, by devise and accruer, to one moiety of the remaining shares and equity of redemption, The mortgages of the encumbered shares had been created by the prior owners of those shares. The lands were valued at over £10,000. They were subsequently sold under the provisions of the Land Purchase Acts. Upon the allocation of the purchase money, subsequent to the death of M. J. A., a question arose between her heir-at-law and her next-of-kin as to the subsistence of the charge.

The Judicial Commissioner (Maguire P.) held that no part of the charge had merged in the inheritance of the lands.

The heir-at-law appealed as to the unencumbered three fifth shares of the charge.

Held by the Supreme Court (FitzGibbon, Murnaghan, Meredith and Geoghegan JJ.), reversing Maguire P to that extent, that the unencumbered three fifth shares had merged in the inheritance of the lands.

Motion to have determined a question contained in a memorandum of the Examiner concerning the allocation of the purchase money of an estate sold under the provisions of the Land Purchase Acts.

The memorandum of the Examiner was as follows:—

1. By indenture of settlement on the marriage of the Rev. James Alexander with Alicia Dopping, spinster, bearing date 5th August, 1833, Nathaniel, Lord Bishop of Meath, father of the intended husband, granted unto his trustees therein named the lands of Stranarlaghan in the County of Donegal, subject to prior limitations which have all determined, in trust for the children of the marriage as the said James Alexander should by deed or will appoint.

2. The said Lord Bishop by his will, dated 4th August, 1840, devised the lands of Lemonaghan, Straduff and Derrinagh to be conveyed to the trustees of the said settlement in substitution for and to be held on the same trusts as the settled lands. Probate of the said will with one codicil thereto, not material to the present application, was granted to the executors therein named on the 31st December, 1840.

3. By indenture dated 26th November, 1840, the said lands of Lemonaghan, Straduff and Derrinagh otherwise Derrinalough were conveyed to uses corresponding with the trusts in the said settlement declared concerning the said lands of Stranarlaghan.

4. By his will, dated 31st May, 1852, the said James Alexander devised the said lands of Lemonaghan, Straduff and Derrinalough or Derrinagh to his eldest son, Nathaniel Alexander, subject to a charge of £6,000 payable in equal shares to testator's other children, Anne Alexander, the above named Mary Jane Alexander, Samuel Alexander, James Alexander and Clarissa Alexander. The said will was duly proved. The said James Alexander was married once only.

5. By indenture, dated 28th January, 1858, the said Nathaniel Alexander conveyed the said lands of Lemonaghan, Straduff and Derrinagh or Derrinalough to the use of himself for life and failing his issue to the use of the said Samuel Alexander for life and failing his issue to the use of the said James Alexander for life and failing his issue to the use of such of them the said Anne Alexander, Mary Jane Alexander and Clarissa Alexander as should attain twenty-one years or be married, if more than one, as tenants in common, and the respective heirs of their respective bodies and failing such issue in trust for the said Nathaniel Alexander and his heirs, and the said indenture contained a power of revocation.

6. The said Nathaniel Alexander died a bachelor and intestate on 10th April, 1865, and without having exercised the power of revocation.

7. By indenture of mortgage, dated the 19th day of March, 1872, and made between the said Mary Jane Alexander of the first part and the said Alicia Alexander of the second part and Robert Crookshank of the third part the said Mary Jane Alexander assigned her one fifth share of the said sum of £6,000 to the said Robert Crookshank by way of mortgage for securing the payment of the sum of £300 and interest.

8. By indenture of mortgage, dated 17th September, 1880, and made between the said Clarissa Alexander of the first part the said Alicia Alexander of the second part and George Purcell White and Henry Bantry White of the third part the said Clarissa Alexander assigned her one fifth share of the said sum of £6,000 to the Rev. George Purcell White and Henry Bantry White by way of mortgage to secure the payment of the sum of £500 and interest.

9. The said Clarissa Alexander made her will, dated 15th August, 1890, and thereby bequeathed her said one fifth share to her mother, Alicia Alexander, for her life and after her death to her sisters the said Anne Alexander and Mary Jane Alexander in equal shares.

10. The said Clarissa Alexander died on 6th December, 1892, without having been married, and letters of administration with the said will annexed were on 2nd March, 1893, granted forth of the Principal Probate Registry of the High Court of Justice in Ireland to the said Mary Jane Alexander. Her debts and funeral and testamentary expenses and all debt duties payable in respect of her estate have been long since paid.

11. The...