Re Matthew Dunne, Deceased. Lynch v Dunne. Hume v Dunne

• Jurisdiction: Ireland
• Judgment Date: 06 May 1907
• Court: Court of Appeal (Ireland)
• Year: 1907
• Date: 1907

In Re Tyrrell's Estate (1).

Appeal.

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.

1907.

Settlement — Construction — Perpetuity — Gift of rentcharge to a charity — Option to assign bonds to redeem rentcharge — No limit as to time.

Held (reversing the decision of Ross, J.), that the proviso was void under the rule against perpetuities, and that the rentcharge of £90 a year could not be redeemed by assigning eighteen Russian bonds in lieu of the rentcharge.

Appeal by the Representative Church Body from the order of Ross, J., dated the 13th February, 1907. The facts are stated in the report of the case in the Court below, ante, p. 194. As some of the terms of the deed of the 31st December, 1888 (2), are referred to in the judgment of Fitz Gibbon, L.J., its contents are given here in extenso:—

“This indenture, made the 31st of December, 1888, between Jasper Robert Joly of the one part, and Henry Charles Joly, hereinafter called ‘the trustee,’ of the other part. Whereas the said Jasper Robert Joly is seized in fee of the several lands and hereditaments, and rentcharges in lieu of tithes, in the schedule hereunto annexed particularly set forth. And whereas the said Jasper Robert Joly has three daughters, namely, Martha Anne, wife of Garrett Tyrrell, of Monasterbois, in the King's County; Mary Arabella, wife of Samuel Henry Webb, of Harcourt Street, in the city of Dublin, doctor of medicine; and Anna Maria Jane Joly, of Rathmines Road, aforesaid, spinster; and no other child or children; and he is desirous of settling the said lands, hereditaments, and rent charges for the benefit of the said children, upon the trusts hereinafter mentioned. Now this indenture witnesseth that, in order to carry out the said desire, and in consideration of the natural love and affection which he hath for his said children, he, the said Jasper Robert Joly, doth hereby grant, release, and convey unto the said Henry Charles Joly all that and those the several lands and hereditaments in the first schedule hereto annexed set forth, and the several rentcharges in lieu of tithes in the second schedule hereto annexed set forth: to hold unto the said trustee, his heirs and assigns, as fully as the said Jasper Robert Joly now holds and enjoys the same, subject, however, to and upon the several trusts hereinafter mentioned, that is to say—1st, out of the rents, issues, and profits thereof to pay all necessary outgoings properly payable out of the same, together with any law costs and expenses to be incurred by the trustee in the management of the said property, including receiver's fees for collecting the said rents and rentcharges, such fees not to exceed the rate of five per cent, on the amounts received; 2ndly, to pay to the said Jasper Robert Joly an annuity of £200 per annum for and during his natural life, to be paid by four quarterly payments, on every 1st day of April, 1st day of July, 1st day of October, and 1st day of January, in each and every year, the first payment thereof to be made on the 1st day of April next after the date of these presents; 3rdly, to pay and apply £90 per annum out of the rents of the said lands for the support of the Protestant religion, in accordance with the Thirty-nine Articles of the Church of England, within the parish of Castlejordan, in the diocese of Meath, such payment to commence from the 1st day of May next: provided, however, that the person or persons for the time being beneficially interested in the said estates, as the representative or representatives of the said Jasper Robert Joly, shall, if he or they shall so think fit, in lieu of the said £90 pay the interest payable on eighteen Russian Imperial or railway bonds for £100 each to and for the aforesaid purpose; 4thly, to pay all the residue of the rents, issues, and profits of the said lands and premises in equal shares to the said Martha A. Tyrrell, Mary A. Webb, and Anna M. J. Joly, respectively, during their joint lives, the share of each of the married daughters to be paid to her, respectively, as her sole and separate property; 5thly, on the death of the said Martha A. Tyrrell her share of the residue of the said rents and profits shall be paid to the heir-at-law of the said J. R. Joly, such heir to be ascertained from among his descendants, according to the same rules as are now applicable to the descent of the George I.; 6thly, on the death of either the said Mary A. Webb or Anna M. J. Joly, whichever shall first happen, the share of the said rents and profits theretofore payable to her shall be paid to the survivor of them, for and during her natural life, together with the original share payable to her; and upon the death of such survivor, the entire share so payable to her shall go to and be paid to the heir-at-law of the said Jasper R. Joly, such heir to be ascertained in manner before directed; 7thly, immediately after the death of the survivor of the said Martha A. Tyrrell, Mary A. Webb, and Anna M. J. Joly, if the said Jasper R. Joly shall have predeceased such survivor, and if not, then immediately after his death, the said trustee shall release and convey the said several lands, hereditaments, and tithe rentcharges to the heir-at-law of the said Jasper R. Joly, to be ascertained in manner hereinbefore directed.”

Jasper R. Joly died on the 25th December, 1892; but his three daughters were alive. Henry Charles Joly died in 1891.

By indenture, dated the 31st December, 1888, J. R. J. conveyed to H. C. J. certain freehold lands in fee, on trust to pay to J. R. J. £200 a year for life, and then to pay £90 per annum out of the rents of the said lands for the support of the Protestant religion, in accordance with the thirty-nine Articles of the Church of England, within the parish of Castlejordan in the diocese of Meath, “Provided that the person or persons for the time being beneficially interested in the said estates, as the representative or representatives of the said J. R. J., shall, if he or they shall so think fit, in lieu of the said £90, pay the interest payable on eighteen Russian imperial or railway bonds for £100 each to and for the aforesaid purpose,” and to pay the residue of the rents of the lands in equal shares to his three daughters, Martha T., Mary W., and Anna M. J., respectively, during their joint lives; and, on the death of the said Martha T., her share of the residue of the rents to be paid to the heir-at-law of the said J. R. J., such heir to be ascertained from among his descendants, according to the same rules as are now applicable to the descent of the Crown of England among the descendants of King George I.; on the death of either of the other two daughters her share to be paid to the survivor, and on the death of the survivor, the entire share so payable to her to be paid to the heir of J. R. J., such heir to be ascertained as before directed.

J. R. J. died in 1892, and the lands having been sold to the tenants under the Land Purchase Acts:—

Garrett W. Walker, K.C., and Cecil Darley, and for the appellants.

C. L. Matheson, K.C., and Frank FitzGibbon for the respondent.

Sir Samuel Walker, C.:—

In this case the material question is whether a proviso conferring an option on the equitable owners of an estate to redeem at any time a perpetual equitable rentcharge on that estate is void for perpetuity.

By a deed of 31st December, 1888, Jasper Robert Joly granted certain lands to Henry...