Re O'Flanagan

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 20 January 1905
• Court: Chancery Division (Ireland)
• Docket Number: (1904. No. 6084.)
• Date: 20 January 1905

In re O'Flanagan and Ryan's Contract.

M. R.

(1904. No. 6084.)

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.

1905.

Vendor and purchaser — Conditions of sale — Condition stating defect of title — Will — Bequest to wife in trust — Delegation of trust.

A condition of sale of leasehold premises stated that a testator, by his will, bequeathed the premises to his wife, in trust for herself and her children, to be applied by her as she should deem most expedient, and that, to give effect to the trusts contained in the will, the widow, on her re-marriage, conveyed the premises to trustees, upon trust, by sale or mortgage, to raise £1000 for the benefit of the said children, and that, in pursuance of this trust for sale, the vendors were selling and would convey the premises as trustees, and not otherwise, and should not be bound to procure the concurrence of any other parties. The will contained no provision authorising this to be done. The purchaser refused to complete, on the ground that a good title had not been shown, as the widow had no power to delegate her trust. The vendors relied on the condition:—

Held, that the widow committed a breach of trust by assigning the premises to trustees, and that the purchaser was not precluded by the condition from objecting to the title on this ground, inasmuch as he was entitled to assume that a power to do what was done by the widow would be shown.

Summons.

This was an application under the Vendor and Purchaser Act, 1874, by the vendors in the matter of a contract, dated November 5th, 1904, between Patrick O'Flanagan and Martin Rahill, as vendors, and Patrick Ryan, as purchaser, for the sale of a licensed house and premises at Thurles, county Tipperary, asking for a declaration that a good title had been shown in accordance with the particulars and conditions of sale.

The facts of the case were as follows:—The premises were described in the particulars as the licensed shop, dwelling-house, and premises, situate at Castle-avenue, otherwise New Road, in the town of Thurles, barony of Eliogarty, and county of Tipperary, held under lease for the term of sixty years, from May 1st, 1881, at the yearly rent of £45.

The lease was dated January 11th, 1884, and made by the National Bank, Ltd., to James Ryan. The premises afterwards became vested in Wm. Maher, of Thurles, merchant. Wm. Maher, by his will, dated February 7th, 1890, bequeathed his property as follows:—“I bequeath my house, stock, furniture, money, and debts, and all my other means and effects whatsoever, to my wife, Kate Maher, in trust for herself, and the children of our marriage, to be applied by her as she shall deem most expedient, subject to the sum of £200, which I bequeath to my son Richard Maher, the surviving child of my first marriage, and will that the said sum be paid to him when he shall have attained the age of twenty-one years; and in the event of my said son Richard Maher dying before the age of twenty-one years is attained by him, I will that the said sum of £200 be retained by my wife in trust as aforesaid; and I further will that my son Richard be supported and educated, like the rest of my children, until he is twenty-one years of age, as a member of the family, and I appoint my wife and James Scully executors of this my will.

William Maher died on February 7th, 1890, and his will was proved on March loth, 1890, by his widow, Kate Maher. By indenture of November 5th, 1890, Charles Culhane, the maternal uncle of the said Richard Maher, and Edward Ryan, indemnified Kate Maher from any obligation to the said Richard Maher, arising under the will of the said William Maher, she having previously paid to the said Charles Culhane the sum of £200, in satisfaction of the legacy bequeathed to him by his father, and the sum of £30 in lieu of maintenance under the said will.

By indenture of marriage settlement, dated January 23rd, 1891, made between the said Kate Maher of the first part, Patrick Rahill of the second part, and Patrick O'Flanagan and Martin Rahill of the third part, it was witnessed that, in consideration of a marriage intended between the said Patrick Rahill and the said Kate Maher, the said Kate Maher, with the approval of the said Patrick Rahill, assigned the said premises...