Re Biron's Contract

• Jurisdiction: Ireland
• Judgment Date: 07 May 1878
• Date: 07 May 1878
• Court: Chancery Division (Ireland)

Appeal.

IN RE BIRON'S CONTRACT.

In re Burroughs, Lynn, & SextonELR 5 Ch. D. 601.

In re Dixon's Trusts I. R. 4 Eq. 1.

In re Donoghue v. Brooke I. R. 9 Eq. 489.

In re Denis' Trusts I. R. 10 Eq. 81.

Bewley v. Carter L. R. Ch. App. 230.

Mullings v. TrinderELR L. R. 10 Eq. 449.

In re Howard's Trusts 7 Ir. Ch. R. 344.

In re Denis' Trusts I. R. 10 Eq. 81, 90.

Blosse v. Lord ClanmorrisENR 3 Bligh, 62.

Pyrke v. WaddinghamENR 10 Hare, 1.

Murray v. Moyers 16 Ir. Ch. R. 520.

Hampton v. Holman 46 L. J. (Ch.) 248.

In re Dixon's Trusts Ir. R. 4 Eq. 1.

Swift v. SwiftENR 6 Sim. 168.

Westwood v. SoutheyENR 2 Sim. (N. S.) 202.

Dixon's Trusts I. R. 4 Eq. 1.

Clarke v. RoyleENR 3 Sim. 499, 503.

Dixon's Trusts I. R. 10 Eq. 81.

Contract for sale of lands — Objection to title — "Issue" in a marriage settlement — Whether equivalent to "children" or "descendants" —

258 LAW REPORTS (IRELAND). [L. R. Appeal. IN RE BIRON'S CONTRACT. 1878. Contract for sale of lands-Objection to title-" Issue" in a marriage settleÂment-Whether equivalent to "children" or "descendants"-Summons under " The Vendor and Purchaser Act, 1874 " (37 4. 38 Vict. c. 78), s. 9-Practice. By deed of 1828 B., on the marriage of his son E. with V., in order to proÂvide for their " issue," conveyed a chattel real upon trust for E. for life ; and after his death, if there should be no " issue " then living, for V. for life ; but if there should be " children" living at E.'s death, as to one-half or one-third of the premises, according as there should be one or more of such " children," for V. for life, and as to the residue, for the maintenance, &c., of such " child or children ;" and after the death of the surviving parent, in trust for the " issue " as E. should appoint ; in default of appointment, share and share alike ; if but one " child," in trust for such only child ; and if no " issue" should outlive the surviving parent, in trust for B. absolutely. E. died in 1877, without having appointed, leaving V. and several children, who then contracted to sell the premises to G., the personal representative of B. agreeing to join in the conveyance. The title having been objected to by G.'s counsel, on the ground that it was doubtful whether " issue " should be construed as " children" or as " descendants," and the Vice-Chancellor, on a summons under s. 9 of "The Vendor and Purchaser Act, 1874" (37 & 38 Vict. c. 78), having allowed the objection: Held, on appeal, that no issue more remote than children took any estate under the limitations of the settlement, and that the order below should be discharged. Per BALL, C.-The children took vested interests at birth, subject to be divested, and to go over to B.'s personal representative, if no descendant of the marriage outlived the surviving parent. Per CHRISTIAN, L. j.-The word " issue " was restricted to children, except in the last clause, where its use was to define a contingency of divesting, and. not a class of takers. Per DEASY, L. J.-Remble, "issue" was confined to children all through the settlement. In re Howard's Trusts (7 Ir. Ch. R. 344) explained and distinguished by Cilaisnex and DEASY, L.JJ. In re Denis' Trusts (Ir. R. 10 Eq. 81) commented on by DEASY, L. J. APPEAL by the vendors of a leasehold estate from so much of an order of the Vice-Chancellor, dated the 15th of December, 'VOL. I.] CHANCERY DIVISION. 1877, as directed that the second objection of Philip Gaffney, the purchaser, contained in the summons issued in this matter on the 23rd of November, 1877, should be allowed, and that the vendors should pay Gaffney the costs of the application. The Appellants also applied, by their notice of appeal, that the second objection should be disallowed, and that the costs of the order of the 15th of December, 1877, and of the present appeal, should be paid to them. It appeared that the leasehold consisted of a house in the city of Dublin, held for the residue of a term of 999 years from the 29th of September, 1756. The premises had been put in settleÂment by deed of the 19th of January, 1828, by the late James Biron, on the marriage of his son the Rev. Edwin Biron with ElizaÂbeth Viny, now Elizabeth Biron, widow; and she and her surviving children by Edwin Biron, viz., three sons (one of whom was now personal representative of James Biron) and two daughters, togeÂther with the husbands of the latter, were the present vendors. Four other children had died in their father's lifetime. The setÂtlement of 1828-after reciting the intended marriage, and that James Biron was entitled to certain freehold premises and to the leasehold-witnessed that (among other things), in order to make provision " for the issue (if any) of the said intended marriage," the premises were conveyed to trustees in trust after the marÂriage for Edwin Biron for life, and after his death, in case ElizaÂbeth Viny should survive him, " and there shall be no issue of the said intended marriage then living," in trust for her for her life ; " but in case there shall happen to be one or more children [sic] the issue of the said intended marriage, living at the time of the death of the said Edwin Biron," then the trustees were to reÂceive the rents of all the premises, "and if there should happen to be but one child living, the issue of the said intended marriage," at the time of Edwin Biron's death, to pay half of such rents to ElizaÂbeth Viny for her life ; " but if more than one child the issue of the said intended marriage " should happen to be living at Edwin Biron's death, to pay to Elizabeth Viny one-third of such rents for her life, and to hold the residue " in trust for the maintenance, education, and benefit of the child or children of the said Edwin Biron by her the said Elizabeth Viny ; and from and. after the de cease of the survivor of them the said. Edwin Biron and Elizabeth Viny, in trust for the issue of the said intended marriage," as Edwin should by deed or will appoint; and in default of appointment, share and share alike. " And if there shall happen to be living but one child, then in trust for such only child ; and in ease there shall be no issue of the said intended. marriage living at the time of the death of the survivor of the said Edwin Biron and Elizabeth Viny, then in trust for the said James Biron " absolutely. On the abstract being furnished, the purchaser's counsel obÂjected to the title, upon the grounds (1) that the estates of the children were contingent on their surviving their mother, their father having died in January, 1877, without making any appointÂment, and that in the event of their all dying in her lifetime, the premises would go over to James Biron's personal representative, who was not a vendor ; (2) that as the word " issue " in the...