Re Lambert's Estate

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 26 February 1901
• Court: Chancery Division (Ireland)
• Date: 26 February 1901

IN RE LAMBERT'S ESTATE.

Chancery Division

Power — Execution — Joint power of appointment given to father and son — Contingent sole power of appointment given to son if surviving — Covenant by son to exercise sole power — Subsequent exercise of joint power by father and son — Defective execution of power — Mortgage subject to certain charges "so far only as they affect the land."

Affleck v. AffleckENR 2 Sm. & G. 394.

Alexander v. MillsELR L. R. 6 Ch. 124.

Blake v. MarnellUNK 2 B. & B. 35.

Cooper v. MartinELR L. R. 3 Ch. 47.

Cooper v. SlightELR 27 Ch. D. 565.

Coventry v. Coventry 2 P. W. p. 222.

Doolan v. Smith 3 J. & L. 547.

Eisdell v. HammersleyENR 31 Beav. 255.

In re Annlay's EstateUNK 23 L. R. Ir. 481.

In re Borrowes I. R. 2 Eq. 468.

Jackson v. JacksonENR 4 Bro. C. C 462.

Johnson v. Touchet 16 W. R. 71.

King v. KingUNK 13 L. R. Ir. 531.

Lees v. Lees I. R. 5 Eq.649.

Minchin v. Minchin I. R. 5 Eq. 178, 258.

Reid v. Shergold 10 Ves. 370.

Shannon v. Bradstreet 1 Sch. Lef. p. 63.

Wandesforde v. Carrick I. R. 5 Eq. 486.

12 THE IRISH REPORTS. [1901. Ross, J. in the Kingdom have the utmost respect. I give express liberty 1900. to appeal on the question of costs (I). In re Solicitor for the Port and Docks Board: Edward Fitzgerald. VERNON'S ESTATE. Solicitor for Colonel Vernon : T. C. Franks. Solicitor for the Admiralty : Lane. Solicitors for the Board of Trade : Hallowes Hamilton. W. C. S. Ross, J. IN RE LAMBERT'S ESTATE. 1900. July 4, 5, 24. Power—Execution—Joint power of appointment given to father and son— Contingent sole power of appointment given to son if surviving—Covenant by son to exercise sole power—Subsequent exercise of joint power by father and son—Defective execution of power—Mortgage subject to certain charges " so far only as they affect the land." By a disentailing deed, executed and enrolled in 1862, lands were limited to such uses as A and B, during their joint lives, should by deed appoint, and, in default of such appointment, to such uses as B, if he should survive A, should, after the death of A, by any deed made after the decease of A, appoint, and, in default of such appointment, to such of the uses of a certain settlement as were subsisting before the execution of the disentailing deed, under which B took an estate tail. In 1868, B, by a deed of arrangement with his creditors, covenanted. that in case he survived A, and came into possession of the premises, he would grant and appoint the lands, by way of mortgage, to trustees to secure the sum. of *L2010, the aggregate sum due to his creditors. In 1872, A and B, in exercise of their joint power, mortgaged the lands to the petitioners, it being stated in the mortgage that the security thereby created was to be subject to several charges, including the sum of £2010, secured by the deed of 1868, " so far as the same are now subsisting and capable of taking effect, and so far only as they affect " the lands. In 1880, A and B, in further exercise of their joint power, by deed mortÂgaged the lands to M, subject to the charges and incumbrances mentioned in the schedule to the deed (which included the deed of 1868), but not so as to give the same, or any of them, any greater or other priority, lien, or security than they respectively had. A having died in 1898 : Held, that the deeds of 1872 and 1880, made under the joint power of (1) A similar decision was arrived at by the Queen's Bench Division in The Secretary of State for War v. Booth (Trio. Sittings, 1900 ; Ex rel. Mr.W. G. Jefferson). VOL. I.] CHANCERY DIVISION. A and B, took priority to the deed of 1868, made under the sole contingent power of B, though the latter was earlier in date, and the mortgagees in the subsequent deeds had notice thereof. MOTION to vary the examiner's report as to the priorities in which the receiver should apply the rents, from time to time, in his hands. At the date of the disentailing deed, hereinafter mentioned, the lands of Aggard in the county Galway, were, with others, by virtue of a marriage settlement, executed February 1, 1833, limited to John Walter Henry Lambert for life, with remainder to his eldest son, Thomas Walter Lambert, in tail male, subject to a charge of £2000, as and for portions for the younger children of John Walter Henry Lambert, and the lands of Ballyardigan in the county Galway were, with others, by virtue of the will of Walter Lambert, dated September 3, 1832, and proved May 5, 1835, settled on John Walter Henry Lambert for life, with remainder to his eldest son, Thomas Walter Lambert in tail male, subject to a power given to John Walter Henry Lambert to charge the same with £3000 as and for portions for his younger children. By a disentailing deed dated the 31st October, 1862, and duly enrolled, Thomas Walter Lambert, with the consent of John Walter Henry Lambert as protector of the settlement, granted unto Cuthbert Fetherston Lambert, the several lands comprised in the said marriage settlement and in the said will, " TO HOLD the said premises freed and discharged from the estate in tail male of the said Thomas Walter Lambert therein, and from all estates, rights, titles, and powers to take effect after the determination or in defeasance of such estate tail, subject and without prejudice to the said estate for life of the said John Walter Henry Lambert, and to such of the powers and privileges thereto annexed or exercisable during the continuance thereof, as were then subsistÂing and capable of being exercised UNTO the said Cuthbert Fetherston Lambert and his heirs, nevertheless to such uses, upon and for such trusts, intents, and purposes, and with and under and subject to such powers, provisoes, limitations, charges, declarations, and agreements, and generally in such manner and form, in all respects, as the said John Walter Henry Lambert and Thomas Walter Lambert should, from time to time, at any 14 THE IRISH REPORTS. [1901. Ross, J. time thereafter during their joint lives by any deed or deeds, 1900. with or without power of revocation, jointly appoint, AND in In re default of such joint appointment, and so far as any such should LAMBERT'S ESTATE. not extend, to such uses, upon and for such trusts, intents, and purposes, and with, under, and subject to such powers, provisoes, limitations, charges, and agreements, and generally in such manner and form, in all respects, as the said Thomas Walter Lambert, in case he should survive the said John Walter Henry Lambert, should from time to time, or at any time or times after the decease of the said John Walter Henry Lambert, by any deed or deeds made after the decease of the said John Walter Henry Lambert, with or without power of revocation and new appointÂment, appoint, AND in default of such appointment, as last aforeÂsaid, and so far as any such should not extend, to such and the same uses, and upon and for such and the same trusts, intents, and purposes, and with and subject to such and the same powers, provisoes, limitations, agreements, and declarations, as were subÂsisting in the said hereditaments thereby granted and conveyed immediately before the execution of this present indenture, and in all respects as if the said presents had not been made." By an indenture dated the 4th July, 1868, and made between Thomas Walter Lambert of the first part, Thomas Henshaw, J. B. Johnstone, and James Forbes, creditors of the the said Thomas Walter Lambert of the second part, and several other creditors of the said Thomas Walter Lambert in schedule described, of the third part, and Christopher St. George of the fourth part, reciting the settlement of the 1st February, 1833, and the will of Walter Lambert, and reciting the disentailing deed of the 31st October, 1862, and reciting that Thomas Walter Lambert, being indebted to the several parties thereto of the third part in the aggregate sum of £201012s. 1d., had proposed to effect a policy on his life for the sum of £2500, and had agreed to assign same to the parties of the second part as trustees for the parties of third part, " so that in the event of the death of Thomas Walter Lambert in the lifetime of John Walter Henry Lambert, the proceeds of the policy of insurance would be available for the payment and discharge of his said liabilities, together with interest thereon respectively, at the rate of £5 per cent. per annum, so far as the Yin. I.] CHANCERY DIVISION. 15 same might extend to the payment of such interest, And further, Ross, that he the said Thomas Walter Lambert would enter into a cove- 1900. rant with the said parties hereto of the second part as such trustees In re LAMBERTS aforesaid, to the effect that in case he should survive the said ESTATE. John Walter Henry Lambert and should come into possession of the lands, premises, and hereditaments in the said recited settlement of the 1st day of February, 1833, and the said will of the said Walter Lambert, and hereinafter respectively mentioned, and into receipt of the rents and profits thereof, he would, within one month thereafter, charge the same lands, premises, and hereditaments with the said sum of £201012s. being the aggreÂgate amount of the debts so due and owing to the parties hereto of the third part, together with interest on the said several sums respectively, at the rate of £5 per cent. per annum, to be computed from the day of the date hereof, to which the said parties hereto of the third part have respectively agreed upon having the payment of the sum of £3210s. per annum, the amount of the annual premium payable on the said policy so to be effected secured in manner hereinafter mentioned," And reciting that Christopher St. George had agreed to covenant in manner thereinÂafter mentioned, to secure the payment of the said premium of £32 10s. per annum, And reciting that for the purpose of giving effect to the said agreement, the said Thomas Walter Lambert had effected an assurance with the Liverpool...