Re O'Connor; McDermott v Attorney General (No 2)

• Jurisdiction: Ireland
• Judgment Date: 30 July 1923
• Date: 30 July 1923
• Docket Number: (1920. No. 506.)(1920. No. 730.)
• Court: Court of Appeal (Irish Free State)

M'Dermott v. Attorney-General

In the Matter of the Estate of HENRY O'CONNOR

Deceased

JOSEPH M'DERMOTT

Plaintiff

HIS MAJESTY'S ATTORNEY-GENERAL FOR IRELANDand ALPHONSUS M'DERMOTT, Defendants. Consolidated with In the Matter of the Estate of MARY O'CONNOR

Deceased

ALPHONSUS M'DERMOTT

Plaintiff

HIS MAJESTY'S ATTORNEY-GENERAL FOR IRELAND and JOSEPH M'DERMOTT, Defendants.No. 2

(1920. No. 506.)(1920. No. 730.)

Appeal (I. F. S.)

Fee-farm grant - Redemption of Rent (Ireland) Act, 1891 (54 & 55 Vict. c. 57) - Fixing of judicial rent - Limited owner - Conversion - Land devised in trust for sale - Partial failure of trusts - Intestacy - Real or personal estate.

A judicial rent was fixed by order of the Land Commission in respect of lands held under a fee farm grant.

Held by the Court of Appeal (affirming O'Connor M.R.), that the fixing of the judicial rent converted the fee-farm estate into a chattel real estate, and that such a conversion could be effected by a limited owner.

H. O'C. by his will devised and bequeathed all his real and personal property not thereby otherwise disposed of to his trustees and executors upon trust that they should sell, call in, and collect the same, and out of the moneys arising thereby, and all other moneys forming part of his estate, pay his funeral and testamentary expenses and debts and the legacies, other than specific legacies thereby bequeathed. He bequeathed pecuniary legacies to a number of charitable institutions, and directed that they should not be paid till after the death of his sister, M. O'C. He bequeathed to her for life the net income of all his residuary real and personal estate, and all investments representing the same. He further devised and bequeathed, after payment of the charitable legacies, the net residue of his property on his sister's death upon trust for such of the charitable institutions named in his will as his trustees should select, and they appointed the residue among certain charitable institutions mentioned in equal shares. H. O'C. died within three months from the date of his will, leaving M. O'C. his sole next-of-kin and heiress-at-law him surviving. M. O'C. by her will gave certain legacies, and devised and bequeathed the residue of her property, real and personal, in equal shares to the charitable institutions named in her brother's will. She also died within three months from the date of her will. In former proceedings it was hold that the charitable legacies were rendered void by sect. 16 of the Charitable Donations and Bequests (Ireland) Act, 1844 (7 & 8 Vict. c. 97).

Held by the Court of Appeal (affirming O'Connor M.R.), that where real estate is devised upon trust for conversion into personalty to be held upon trusts, which in the result partially fail, the proceeds of the lands sold and land, if any, unsold, so far as the same are applicable to trusts which have failed, both result to the heir as personal estate; and accordingly that the real estate of H. O'C., and also the proceeds of the sale of land previously disposed of by him, which passed to M. O'C. as his heiress-at-law on her death, passed to her personal representative as personal estate.

Motion on Notice.

John O'Connor, senior, held the lands of Mountlusk under a fee-farm grant, and by his will, dated December 21st, 1888, he bequeathed them to Henry O'Connor for life, with remainder, in the events which happened, to John O'Connor, junior. John O'Connor, senior, died on November 9th, 1893, but before his death he had served an originating notice under the Redemption of Bent (Ireland) Act, 1891, to redeem the fee-farm rent, and in case the grantors should not signify their consent to such redemption, he applied to the Court to be deemed a present tenant of the holding, and for an order fixing the fair rent to be thereafter paid for the same. By order of the Land Commission, the proceedings were continued in the name of Henry O'Connor, the tenant for life under the will of John O'Connor, deceased; and the grantors not having consented to the redemption of the rent, a fair rent was fixed.

The testator, Henry O'Connor, died on January 26th, 1920, having made his will on January 19th, 1920, by which he devised and bequeathed his real and personal property not thereby otherwise disposed of to his trustees and executors upon trust that they should call in and collect the same, and out of the moneys arising thereby and all other moneys forming part of his estate pay his funeral and testamentary expenses and debts, and the legacies other than specific legacies thereby bequeathed. He bequeathed certain personal pecuniary legacies, amounting in all to £2,500. He bequeathed twelve pecuniary legacies of £500 each to twelve charitable institutions, and £100 for Masses to be offered up in Ireland for the repose of his soul. He directed that the charitable legacies should not be payable till after the death of his sister, Mary O'Connor, and he bequeathed to her for life the net income of all his real and personal estate, and all investments representing the same. He further devised and bequeathed the net residue of his property on his sister's death, after the payment of charitable legacies, upon trust for such of the charitable institutions as he had previously named in his will as his trustees and executors should select. The testator died within three months from the date of his will, leaving his sister, Mary O'Connor, his sole next-of-kin and heiress-at-law, and his freehold lands devolved upon her as his heiress-at-law, subject to the trust for conversion in his will. Mary O'Connor devised and bequeathed the residue of her property, real and personal, in equal shares to the several institutions named in the will of her brother, Henry O'Connor, and died the day after she made her will.

The parties agreed to treat the notice of motion as an action.

Catherine Fitzpatrick, one of the next-of-kin of Mary O'Connor, appealed to the Court of Appeal in the Irish Free State (1) against so much of the order of the Master of the Rolls as declared that the lands of Mountlusk became converted into a chattel interest by the fixing of a fair rent thereon by Henry O'Connor, and that the same, on the death of Henry O'Connor, passed to the personal representative of John O'Connor, junior, as personal estate. The appellant asked for a declaration that

the lands of Mountlusk were not converted into a chattel interest by the fixing of the fair rent thereon, and that the same on the death of Henry O'Connor, in the events which had happened, passed to Mary O'Connor as the heiress-at-law of Henry O'Connor.

Hugh Mailey, an heir-at-law of Mary O'Connor, appealed against so much of the order of the Master of the Rolls as declared, 1, that the real estate of Henry O'Connor which passed to Mary O'Connor as his heiress-at-law passed on her death to her personal representative as personal estate; and, 2, that so much of the proceeds of sale of the land sold under the Settled Land Acts by Henry O'Connor as tenant for life, having devolved upon Mary O'Connor as his heiress-at-law, passed to her personal representative as personal estate. The appellant asked for a declaration that all the real estate and proceeds of real estate belonging to or devolving on Mary O'Connor passed on her death to her co-heirs-at-law.

O'Connor M.R. :—

In this action several questions remain for decision.

I refer for brevity to the statement of the will of Henry O'Connor, and of the material facts contained in the report ofM'Dermott v. The Attorney-General(1). Owing to the death of Henry O'Connor within three months from the date of his will, his freehold lands devolved upon Mary O'Connor as his heiress-at-law, subject to the trust for conversion in his will. Likewise, owing to her death within three months from the date of her will, the lands which she derived from Henry O'Connor as his heiress-at-law devolved on her death as if she had died intestate...