Re Cross's Trusts. Cross v Cross

• Jurisdiction: Ireland
• Judgment Date: 20 July 1915
• Date: 20 July 1915
• Court: Chancery Division (Ireland)

In re Cross's Trusts.

Cross

and

Cross.

M.R.

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.

1915.

Settlement — Real Estate — Limitations — Equitable Estate in Fee — No Words of Inheritance — Estate for Life or in Fee-Simple — Intention.

A limitation, in a deed, of an equitable estate without words of limitation, may confer the equitable fee where the intention to do so appears from the deed.

By deed, reciting that C. had agreed, in consideration of B. paying off certain debts of C., to convey certain lands, held in fee-farm, to a trustee in trust for B. and his wife during their lives, with remainder to C. and his wife during their lives, with remainder, subject to a sum of £600 charged in favour of the eldest son of C. and his issue, in trust for the children of C. and his wife as he should appoint, and, in default of appointment, for all the children save the eldest son, C. conveyed the lands unto and to the use of a trustee and his heirs upon the trusts so agreed upon, the ultimate trust being for the children of C. as he, or in default his wife, should appoint, and in default of such appointment “then to such issue save the eldest son, share and share alike.” The lands were not of very great value.

Held, that there was sufficient evidence on the face of the instrument to show that it was the intention of the settlor to dispose of his whole estate, and that the younger children, notwithstanding the absence of words of inheritance in the limitation to them in default of appointment, took an equitable estate in fee-simple, as tenants in common in equal shares, in the lands.

In re Tringham's Trusts, Tringhum v. Greenhill, [1904] 2 Ch. 487, In re Houston, Rogers v. Houston, [1909] 1 I. R. 319, and In re Stinson's Estate, [1910] 1 I. R. 47, followed.

Meyler v. Meyler, 11 L. R. Ir. 522, and Bennett's Estate, [1898] 1 I. R. 185, not followed.

Summons.

By an indenture dated the 12th September, 1877, and made between Richard Cross of the first part, John Cole Bowen of the second part, and Warren Grillman Crooke of the third part, reciting that the said Richard Cross was seised of the lands of Cronodybeg, containing 77a. 2r. 13p. Irish plantation measure, held under a fee-farm grant dated the 2nd October, 1857, at the yearly fee-farm rent of £57 6s. 2d., and that it had been agreed by and between the said Richard Cross and the said John Cole Bowen that, in consideration of the said John Cole Bowen paying off the debts of the said Richard Cross thereinafter mentioned, and amounting in the whole to a sum not exceeding £1006 7s. 3d. or thereabouts, the said Richard Cross should convey to the said Warren Gillman Crooke, as a trustee, the said lands of Cronodybeg as held under the said fee-farm grant of 2nd October, 1857, in trust for the said John Cole Bowen and his wife, Catherine Travers Bowen, during their lives and during the life of the survivor of them, and after the decease of such survivor for the said Richard Cross and Harriett Cross, his wife, for their lives and the life of the survivor, and after the decease of the said Richard Cross and his wife, subject to the life estates of the said John Cole Bowen and Catherine Travers Bowen, his wife, for such of the children of the said Richard and Harriett Cross as the said Richard Cross should by deed or will appoint, subject as thereinafter mentioned, and, in default of appointment, amongst all the children save the eldest son of the said Richard and Harriett Cross, who was thereby especially provided for, and that the said lands and premises should be charged with the sum of £600 in favour of John Cole Bowen Cross, the eldest son of the said Richard Cross, the said sum of £600 not to be raised or levied, and not to bear interest, until after the decease of the said John Cole Bowen and Catherine Travers Bowen, his wife, and of the said Richard Cross and Harriett Cross, his wife, the said Richard Cross, in consideration of the said John Cole Bowen paying off the debts of the said Richard Cross thereinafter mentioned, granted conveyed and confirmed unto the said Warren Grillman Crooke, his heirs and assigns, “All that and those the lands of Cronodybeg to hold the said premises unto and to the use of the said Warren Gillman Crooke his heirs and assigns upon trust during the lives of the said John Cole Bowen and Catherine Travers Bowen his wife to permit and suffer the said John Cole Bowen and Catherine Travers Bowen and their assigns to receive the rents and profits thereof and from and after the death of either of them to permit and suffer the survivor of them the said John Cole Bowen and Catherine Travers Bowen his wife his or her assigns to receive the rents and profits thereof during his or her natural life and from and after the death of the said John Cole Bowen and Catherine Travers Bowen his wife upon trust to permit and suffer the said Richard Cross and his assigns to receive the rents and profits thereof during his life and after his death upon trust to permit and suffer Harriett Cross his wife and her assigns to receive the rents and profits thereof during her natural life and from and after the death of the survivor of them the said John Cole Bowen Catherine Travers Bowen Richard Cross and Harriett Cross upon trust and to the use of the said Warren Gillman Crooke his heirs executors administrators and assigns in the first place to raise thereout a sum of £600 with interest thereon at the rate of £5 per cent. per annum from the day of the death of the survivor of the said Richard Cross and Harriett Cross and to pay the same to John Cole Bowen Cross [the eldest son of the said Richard Cross] if he shall then be living and in case of his death in the meantime leaving issue of him surviving to pay the said sum of £600 to such issue share and share alike and in case of the death of the said John Cole Bowen Cross without issue then that the said sum of £600 shall not be raised but shall merge in the inheritance and subject to the said charge of £600 upon trust as to the said lands for such one or more of the child or children of the said Richard Cross save the eldest son John Cole Bowen Cross in such shares or proportions or charged with such sum or sums as the said Richard Cross shall by deed or will appoint and in default of appointment by him as the said Harriett Cross shall in like manner appoint and in default of appointment by her then for such issue save the eldest son share and share alike.”

John Cole Bowen died in the year 1885, and Catherine Travers Bowen on the 30th April, 1911. Harriett Cross died on the 17th August, 1911, and Richard Cross on the 18th December, 1911, without having ever exercised the power of appointment given to them by the settlement.

There were four children of Richard Cross and Harriet Cross: Henry, who died long before the date of the settlement, and before attaining the age of twenty-one years or marrying...