Re Domvile and Callwell's Contract

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 08 July 1908
• Court: Court of Appeal (Ireland)
• Docket Number: (1908. No. 491.)
• Date: 08 July 1908

In re Domvile and Callwell's Contract.

Barton, J.

Appeal.

(1908. No. 491.)

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.

1908.

Vendor and purchaser — Settled Land Acts, 1882-1890 — Settlement — Life estate — Power of jointuring — Disentailing deed — Re-settlement — Restoration of original life estate and power of jointuring — Creation of new powers of charging — Compound settlement.

Held, by Barton, J., that trustees of the will only should be appointed.

Held, by the Court of Appeal (reversing the decision of Barton, J.), that the will and subsequent instruments constituted a compound settlement, under which the lands stood limited by way of succession at the date of the contract for sale, and that the purchasers were entitled to require the appointment of trustees of such compound settlement for the purposes of the Settled Land Acts.

Vendor and Purchaser Summons.

By articles of agreement, dated the 24th January, 1908, the vendor, Major Herbert Winnington Domvile, as tenant for life, agreed to sell, subject to a certain lease specified in the schedule thereto, the fee-simple in possession, free from incumbrances, of a certain portion of the Domvile settled estates, consisting of 42 acres 7 perches of the lands of Ballybrack, in the county of Dublin, to Amy Louisa Charlotte Callwell, Gertrude Emma Callwell, May Alberta Callwell, Helen Lindsay May Callwell, and Ida Eleanor Callwell, for the sum of £10,000.

By article 2 of the above-mentioned agreement the purchasers were required to pay a deposit of £50, and to pay the residue of the purchase-money to “trustees of the estate of the vendor, properly constituted and entitled to give a receipt for the same, under the Settled Land Acts, 1882 to 1890,” on the day appointed for completion.

The vendor became entitled, under the will, dated the 20th February, 1847, of his uncle, Compton Charles Domvile, senior, as tenant for life of the Domvile settled estates, with remainder to his first and other sons in tail, on the 22nd July, 1891. The will contained certain powers of jointuring and portioning, and of appointing the settled lands for terms of years upon trust for securing a jointure and for raising £12,000 for younger children.

By a disentailing deed, dated the 9th December, 1891, made between the vendor, Herbert Winnington Domvile, of the first part, Compton Charles Domvile, junior (his eldest son), of the second part, and John Raynor Arthur and Campbell Montague Edward Wynne, of the third part, after reciting the above-mentioned will, the vendor and his eldest son conveyed the settled lands to the above-mentioned parties of the third part, subject to the uses and estates limited or created by the said will which preceded the estates in tail male of the said Compton Charles Domvile, other than the estates thereby, or by reference thereto, limited to the vendor for his life, and to the powers annexed to or exercisable during the continuance of such preceding uses and estates, respectively (other than as last aforesaid); and to the uses and estates limited or created, or to be limited or created, in exercise of such powers, but discharged from all estates in tail male or in tail of the said Compton Charles Domvile at law or in equity, and all estates, rights, interests, and powers to take effect after the determination, or in defeasance of such estates in tail male or in tail; To such uses upon such trusts, and subject to such powers and provisions, as the vendor and Compton Charles Domvile should, at any time or times thereafter, by any deed revocable or irrevocable, jointly appoint, and in default of and subject to any such appointment; To the uses upon the trusts and subject to the powers and provisions to, upon, and subject to which under or by virtue of the thereinbefore recited will the same premises respectively stood limited and settled immediately before the execution of these presents, or such of the same uses, trusts, powers, and provisions as should then be subsisting, or capable of taking effect, and so as to restore and confirm the same uses, trusts, powers, and provisions. The trustees of this deed were appointed trustees for the purposes of the Settled Land Acts.

By an indenture, dated 28th June, 1895, made between the vendor, of the first part, Compton Charles Domvile, of the second part, and Ingram Whitaker and Geo. Hill Major (the trustees), of the third part, reciting the will of Compton Charles Domvile, senior, and the above-mentioned disentailing deed of the 9th December, 1891, and reciting that the vendor was minded not to exercise the power in that behalf contained in the will of the said Compton Charles Domvile, senior, of charging the said lands and hereditaments, or any of them, with £12,000 in favour of his younger children, but was desirous of making such provision in lieu thereof for Rose Margaret Domvile and Grace Frances Domvile, and any other Children that might thereafter be born to him, and had requested his son, the said Compton Charles Domvile, to assist him in carrying out the said desire by making such joint appointment as was thereinafter contained, which the said Compton Charles Domvile had agreed to do, in consideration of such release by the vendor of the powers of charging the said hereditaments with portions for his younger children, conferred by the said recited will, as was -thereinafter contained; It was witnessed that in pursuance of the said agreement, and in consideration of the premises, the vendor and Compton Charles Domvile, as settlors, in exercise of the powers in that behalf given to them by the said indenture of 9th December, 1891, and of every other power them thereunto enabling, thereby irrevocably appointed the settled lands to the trustees therein named, for the term of 500 years, to commence from the death of the vendor, and subject thereto, to such uses, upon such trusts, and subject to such powers and provisions as the vendor and Compton Charles Domvile should at any time or times thereafter by deed jointly appoint, and in default of and subject to any such appointment to the uses upon the trusts, and subject to the powers and provisions to, upon, and subject to which under, or by virtue of, the said will of the said Compton Charles Domvile, senior, and of the recited indenture of the 9th December, 1891, or either of them, the same premises respectively stood limited and settled immediately before the execution of this deed, or such of the same uses, trusts, powers, and provisions, as were then subsisting, or capable of taking effect, and so as to restore and confirm the same uses, trusts, powers, and provisions. The deed then declared that the said lands were limited to the use of the trustees for the said term of 500 years in trust to raise by sale or mortgage the sum of £8000, as portions for the said Rose Margaret Domvile and Grace Frances Domvile, and the child or children (if any) thereafter to be born to the vendor in such manner as the vendor should appoint, and in default of appointment, and subject to any such appointment, in trust for the child or children of the vendor. By the same deed the vendor absolutely and irrevocably disclaimed and released the lands from the power under the will of Compton Charles Domvile, senior, enabling him to appoint the lands to trustees for the purpose of raising portions for his children. The trustees of the deed were appointed trustees for the purposes of the Settled Land Acts.

By an indenture dated 6th October, 1904, made between the vendor and his son Compton Charles Domvile, of the one part, and Thomas Falls and Hubert Graves Archer (the trustees), of the other part, after, inter alia, reciting the will of Compton Charles Domvile, senior, and reciting the above-mentioned deeds of 9th December, 1891, and 28th June, 1895, and reciting that the vendor and Compton Charles Domvile had agreed to make such appointment and settlement of the said lands as was thereinafter contained, it was witnessed that the vendor and Compton Charles Domvile, as settlors, in exercise of the powers vested in them by the said indentures of 9th December, 1891, and 28th June, 1895, or either of them, and of every other power enabling them in that behalf, did thereby direct and appoint that the settled lands then subject to the joint appointment of the vendor and Compton Charles Domvile should thenceforth remain and be to the uses upon the trusts and subject to the powers and provisions thereinafter declared concerning the same, viz., to such uses, upon such trusts, and subject to such powers, and with and subject to such provisions, as the vendor and Compton Charles Domvile should jointly by any deed appoint, and in default of such appointment, and so far as no such appointment should extend, to the use that the said Compton Charles Domvile and his assigns should during the joint lives of himself and the vendor receive a yearly rentcharge of £200, to commence from the 1st January then last and to be charged upon and issuing out of the hereditaments and premises thereby settled, and to the further use that in case the said Compton Charles Domvile should die in the lifetime of the vendor, leaving a widow him surviving, such widow should from the death of the said Compton Charles Domvile and during the joint lives of herself and the vendor receive the said yearly renteharge of £200, and subject to such rentcharge to the use of the trustees for the term of 1000 years upon the trusts thereinafter declared concerning the same, and subject thereto to the use of the vendor during his life in restoration of his former life estate under the said will of the said Compton Charles Domvile, senior, deceased, and so that the power of jointuring a future wife and of limiting the said lands and hereditaments for a term of years to secure the same given to him by the...