Re Buchanan. Stephens v Draper

• Jurisdiction: Ireland
• Judgment Date: 08 December 1914
• Date: 08 December 1914
• Docket Number: (1914. No. 570.)
• Court: Chancery Division (Ireland)

IN RE BUCHANAN

STEPHENS

and

DRAPER.

(1914. No. 570.)

CHANCERY DIVISION

Appeal.

Will — Construction — Annuity — Direction to pay out of Rents and Profits — Charge on Corpus.

AppealELR [1909] 2 Ch. 19.

Baker v. Baker 6 H. L. 616.

Bell v. Bell I. R. 6 Eq. 239.

Birch v. SherrattELR L. R. 2 Ch. 644.

Carter v. Salt I. R. 1 Eq. 97, at p. 108.

Carter v. Salt I. R. 1 Eq. 97.

Ex parte WilkinsonENR 3 De G. J. & S. 633.

Farman v. MillsENR 4 Russ. 86.

Foster v. SmithENR 1 Ph. 629.

Howarth v. MakinsonELR [1909] 1 Ch., p. 488.

In re BiggeELR [1907] 1 Ch. 714.

In re BowdenELR [1907] 1 Ch. 132.

In re HowarthELR [1909] 2 Ch. 19.

In re Mason 8 Ch. Div. 411, at p. 414.

In re Tootal's EstateELR 2 Ch. D. 628.

In re Watkin's SettlementELR [1911] 1 Ch. 1.

In re West's EstateIR [1898] 1 I. R. 75.

In re YoungELR [1912] 2 Ch. 479.

Mason v. RobinsonELR 8 Ch. D. 411.

Phillips v. GutteridgeENR 3 De G. J. & S. 332.

Re Kelly 9 I. C. R. 103.

Salvin v. Weston 12 Jur. (N. S.) 700.

Stelfox v. SugdenENR John. 234.

Wormald v. MuzeenUNK 45 L. T. 115; 29 W. R. 795.

Wurmald v. Muzeen 29 W. R. 795.

Voa. CHANCERY DIVISION. 95 TN RE BUCHANAN. STEPHENS v. DRAPER. (1914. No. 570.) Will—Construction—Annuity—Direction to pay out of Rents and Profits— Charge on Corpus. N. R. 1914. July 14, 17. Appeal. Nov. 23, 24. Dec. 8. A testator by his will devised and bequeathed to trustees certain houses, upon trust to receive the rents and profits thereof, and to pay thereout the head-rent and other outgoings, and as to the residue of the rents and profits after payment of the above, upon trust to pay a number of annuities to certain persons for their lives, and after their deaths to hold the annuities on trust for testator's son R., and, after payment of such annuities, to pay out of the residue of such rents and profits as the same should come to their hands a certain debt due by the testator. All the residue of his real and personal estate he devised and bequeathed to his son R. The rents and profits were insufficient to pay the annuities in full. Held by the Court of Appeal (affirming the decision of the Master of the Rolls), that the annuities were a charge on the corpus. Phillips v. Gutteridge, 3 De O. J. & S. 332, applied and followed. SUMMONS. Robert Buchanan, by his will dated the 17th November, 1884, devised and bequeathed the houses and premises known as Nos. 28, 29, and 30 South Richmond Street, in the city of Dublin, with their appurtenances, unto his wife Frances Buchanan, and to the trustee and trustees for the time being of his will " upon trust for the following intents and purposes, that is to say, upon trust to receive the rents, issues, and profits of the same, and thereout to pay the head rent thereof, the landlord's proportion of income-tax, poor-rate, and municipal tax, and as to the residue of said rents and profits after payment of above (1) upon trust to pay to his said wife Frances Buchanan the yearly sum of £60 by two equal half-yearly payments, during her life, and after her death to hold the same upon trust to pay the said annual sum of THE I1i181-1 REFoltTS. (1915. £60 to his second son Robert Francis Buchanan, his executors, administrators, and assigns ; (2) and upon the further trust to pay to his daughter Lavinia O'Connor, during her natural life, the yearly sum of £30 by two equal half-yearly payments, and after her death to hold the same upon trust to pay the said annual sum of £30 to his said second son Robert Francis Buchanan, his heirs, executors, administrators, and assigns ; (3) and upon the further trust to pay to his daughter Mary Louisa Buchanan, during her natural life, the yearly sum of £15 by two equal half-yearly payments, and after her death to hold the same upon trust to pay the said annual sum of £15 to his aforesaid second son Robert Francis Buchanan, his heirs, executors, administrators, and assigns; (4) and upon the further trust to pay to his daughter Emma Jane Buchanan during her natural life the yearly sum of £15 by two equal half-yearly payments, and after her death to hold the same upon trust to pay the said annual sum of £15 to his said second son Robert Francis Buchanan, his executors, administrators, and assigns; (5) and upon the further trust to pay to his daughter Frances Stokes the sum of £1, "and as to the rest, residue, and remainder of the said rents and profits to hold the same upon trust to dispose of the same in manner following and hereinafter mentioned, and whereas I borrowed from my said eldest daughter Lavinia O'Connor the sum of £350, the repayment of which sum is secured to her by my bond with interest at the rate of £6 per cent. per annum, and which said sum of £350 is still due and owing to her, and as regards the same my will is and I hereby direct my said trustee or trustees for the time being to set aside the residue of the said rents and profits of the said premises Nos. 28, 29, and 30 South Richmond Street, after payment of the said several annuities as aforesaid, as the said surplus shall come to her or their hands to pay the same to the said Lavinia O'Connor, or if not living to pay the same to whomsoever she shall by deed or will direct, and in default of such direction then to her executors, administrators, or assigns, and to continue such payments until the said sum of £350 and interest (by rests) at the rate of 6 per cent. per annum as aforesaid shall be paid off and satisfied, and as to all the residue of my estate real and personal not herein-before disposed of, I devise and bequeath the same to my said Vim. I.] CHANCERY DIVISION. son Robert Francis Buchanan." The testator appointed his wife Frances Buchanan sole executrix and trustee of his will. The testator died on the 29th November, 1884. The rents and profits were not in any year sufficient to pay the aforesaid annuities. The above-named second son Robert Frances Buchanan died on the 28th March, 1897, and by his will dated the 10th March, 1897, appointed the defendant Edward Danvers Draper, and Eliza Bryson Grant, executors and trustees of his will, and bequeathed to them all his interest in the said premises, including the said annual sums, upon trust either to retain or convert into money the same and hold the said premises and the investments representing the same and the income thereof upon the trusts mentioned in his will. On the 25th of August, 1897, probate of his will was granted to the defendant herein, Eliza Bryson Grant having renounced probate. Mary Louisa Buchanan died on the 17th October, 1895. Lavinia O'Connor, by indenture dated the 9th June, 1898, assigned to the defendant the said sum of £350 due to her, and released the estate and effects of the testator from all claims in respect of her annuity of £30. Emma Jane Buchanan, by an indenÂture dated the 21st February, 1914, assigned to the defendant the annual sum of £15, payable to her, and released the estate and effects of the testator therefrom. Frances Buchanan, the widow of the testator, died on the 9th August, 1913, and probate of her will was granted to the plaintiff Henry Francis Stephens, the sole executor therein named, on the 24th April, 1914. No new trustee of the will of the testator, Robert Buchanan, had been appointed. At the date of the death of the said Frances Buchanan the arrears of her annuity amounted to £642. The defendant, Edward Danvers Draper, was in receipt of the rents of the said premises as trustee of the will of Robert Francis Buchanan, and the plaintiff had entered into an agreement with him for the purchase of a portion of the aforesaid premises, and a question was raised on the requisitions to title as to whether, having regard to the terms of the will, the aforesaid arrears of the annuity of Francis Buchanan were a charge on the corpus or were payable only out of the rents and profits of each particular year. The parties being unable...