Re Smythe

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 08 March 1938
• Date: 08 March 1938

In re Lyster Smythe's Estate.

In the Matter of the Estate of AGNES MARY HENRIETTA LYSTER SMYTHE, Owner, (1)

Supreme Court.

Church - Proprietary Church - Endowment - Trusts of endowment - Condition of residence by the incumbent - Limitation to corporation sole - Dissolution of corporation sole - Failure of the condition - Lapse of endowment - Whether resulting trust in favour of grantor - Irish Church Building Acts - 1 Geo. 2, c. 18, sects. 4, 11, 12, 14, 15 and 16 - 6 & 7 Wm. 4, c. 31,sect. 11 - 14 & 15 Vict. c. 71 - 14 & 15 Vict. c. 72, sects. 23, 25 and 26 - Irish Church Act, 1869 (32 & 33 Vict. c. 42), sects. 12, 13, 20, 21, 70, 72 - Trustee Churches (Ireland) Act, 1884 (47 Vict. c. 10) - Constitution of the Church of Ireland, Ch. IV, sects. 24, 26 - Charitable Donations and Bequests (Ir.) Act (34 & 35 Vict. c. 102), sect. 12 - Conveyancing Act, 1881, sect. 30.

In 1838 W. B. S. built a chapel of ease at Collinstown. By deed, dated 8th March, 1838, he conveyed the chapel with (inter alia) a house for the residence of the clergyman of the chapel to the Bishop of Meath of the then Established Church, and he declared that he, his heirs and assigns, should have the sole right of presentation to, and patronage of, the said chapel. This deed recited the statute, 1 Geo. 2, c. 18, and purported to endow the chapel in accordance therewith. By deed, dated 12th April, 1838, the Bishop conveyed the chapel to the "perpetual curate" of the chapel, and who, by virtue of the said statute, was a corporation sole. By deed poll, dated 18th May, 1860, W. B. S. substituted two rent charges for certain of the endowments previously granted by him, and the right of patronage and presentation continued to be exercised by him and his successors until the year 1923. Between 24th August, 1923, and 28th October, 1932, the office of curate of the chapel was vacant. The successor in title of W. B. S. did not appoint to the vacancy and upon 28th October, 1932, the Bishop of Meath nominated one, P. H. R., to be curate of the chapel and also licensed him as curate in charge of a neighbouring church at Drumcree. Under the Land Purchase Acts the Land Commission purchased the lands formerly owned by W. B. S., including those upon which the rent charges were charged, and ultimately the present owner applied to the Judicial Commissioner that the purchase money should be distributed without regard to the rent charges. The Judicial Commissioner held that the appointment of P. H. R. as curate in charge was invalid, having regard to the statute 1 Geo. 2, c. 18, and that the owner was entitled, when no curate was nominated solely to the chapel of ease, to refuse to pay the rent charges, and ordered that the capital sum be retained on the Allocation Schedule to see whether such appointment would be made, and that in the meantime the interest of the retained sum should be paid to the owner.

From this order P. H. R. appealed to the Supreme Court and asked for an order that the retained sum should be paid to the Commissioners of Charitable Donations and Bequests and the interest thereof paid to him (P. H. R.) as incumbent of the chapel of ease.

Held by the Supreme Court (Murnaghan, Meredith and Geoghegan JJ.) that the appointment of P. H. R. as perpetual curate of the chapel was valid; that the statutory trusts created by the Irish Church Act, 1869, included an obligation of residence upon the curate of the chapel, but that the licence of the Bishop was a sufficient dispensation from that obligation, and non-residence in accordance with such licence did not deprive the curate of the benefits of the endowment, and accordingly that the appeal should be allowed and the retained fund should be paid to the Commissioners of Charitable Donations and Bequests and the interest thereof paid to the incumbent for the time being of the chapel of ease.

The effect of the dissolution of ecclesiastical corporations under sect. 13 of the Irish Church Act, 1869, on the rent charges, having regard to the subsequent provisions of the Act, discussed.

Appeal by the Rev. Percy H. Richardson from the order made by the Judicial Commissioner, dated 19th November, 1935, whereby it was ordered that a sum of £680 0s. 0d. 4¹/₂ per cent. Land Bonds should be retained upon the Allocation Schedule of the estate in this matter in respect of two annuities or yearly rent charges of £14 0s. 0d. and £20 0s. 0d., and that accrued and accruing interest on the said sum of £680 0s. 0d. should be paid to the owner of the estate. The said rent charges were payable under a Deed of Endowment, dated 18th May, 1860, whereby the predecessor in title of the owner of the estate endowed a proprietary chapel at Collinstown and charged the estate in this matter with the payment of the rent charges. The appellant sought to have the said sum of £680 Land Bonds paid to the Commissioners of Charitable Donations and Bequests and the interest thereof paid to himself as incumbent for the time being of the said chapel.

The hearing of this appeal was commenced on March 25th, 1936, and continued on March 27th and 30th, but was adjourned on the last mentioned date to enable the parties to file affidavits for the purpose of bringing the facts more fully before the Court than they had been before the Judicial Commissioner. Further affidavits having been filed, the appeal now came again before the Supreme Court.

The facts are summarised in the headnote and are set out in the judgment of Murnaghan J.

Cur. adv. vult.

Murnaghan J.

On the Allocation Schedule of Part I in this matter appears a claim by the Representative Church Body in respect of two perpetual annuities of £14 and £20 charged by Deed Poll, dated 10th May, 1860, and made by William Barlow Smyth. Mrs. Agnes Mary Henrietta Lyster Smythe is entitled to the residue of the purchase money of this part of the estate, and she has sought by notice of motion, dated 23rd October, 1935, to have the purchase money distributed without regard to this claim. A sum of £680, 4¹/₂ per cent. Land Bonds has been retained in respect of these annuities, and it has been agreed by the parties that these Land Bonds shall be treated, not as the redemption price of the annuities, but as a retainer of purchase money to meet any claim which may be legally established.

At the hearing before Mr. Justice Wylie it was conceded that the Representative Church Body had no title to the annuities, but Rev. Percy H. Richardson appeared by counsel to resist the motion brought by Mrs. Lyster Smythe, and he asked for payment of interest on the Land Bonds to be made to him.

I shall deal later with the reasons stated by Mr. Justice Wylie for the order which he made, but the curial part of

the order reads:—"It is ordered by the Court that a sum of £680, 4¹/₂ per cent. Land Bonds, portion of the said purchase money is retained on the Allocation Schedule herein in respect of the said annuities or yearly rent charges of £14 and £20 until further order, and that accrued and accruing interest on said sum of £680 Land Bonds be paid until further order to Mrs. Agnes Mary Henrietta Lyster Smythe, widow, of Barbaville, Collinstown, County Westmeath."

By notice of appeal, dated 9th December, 1935, Rev. Percy H. Richardson has appealed to this Court, and asks for an order that these Land Bonds be paid to the Commissioners of Charitable Donations and Bequests, or to such Body, or persons, as the Court may deem fit, and that accrued and accruing interest in said Land Bonds be paid until further order to the said Percy H. Richardson, or other, the incumbent for the time being of the parish of Collinstown.

The appeal of Rev. Percy H. Richardson came before this Court on 30th March, 1936, when his appointment was read. It was then discovered that the real facts were not before the Court and both parties were given liberty to file further affidavits. The facts now before the Court differ materially from those brought to the notice of Mr. Justice Wylie, and I shall refer to the principal corrections which have been made when I come to deal with the material issues now before this Court.

An Act of the Irish Parliament, 1 Geo. 2, c. 18, made certain provisions dealing with the erection of chapels of ease, and the patronage thereof, and the constitution of such into perpetual curacies and benefices, and other matters connected therewith. This Act permitted a limited quantity of land to be set apart for a chapel of ease in a parish, being at least two miles distant from the mother church, with an endowment of not less than £30 nor more than £50 per annum. Counsel, in commenting on this statute and the change of conditions, have referred to Goldsmith's description of the man "passing rich on £40 a year." Under this statute the perpetual curate was created in law a corporation sole. Somewhat similar provisions were contained in an Act passed in the Parliament of the United Kingdom, 6 & 7 Wm. 4, c. 31.

Acting under the powers given by 1 Geo. 2, c. 18 (Irish) as is recited in the deeds, William Barlow Smythe, by two deeds, dated 8th March, 1838, and 12th April, 1838, erected a chapel of ease in the parish of St. Fechans, to be known as the chapel of ease of Collinstown, and the patronage of this chapel of ease was reserved to him, his heirs and assigns. This chapel of ease was adjacent to the gates of his demesne at Collinstown, and the benefactions included the site of the chapel of ease, ground with a residence for the perpetual curate, and ground let as a police barracks, the rent of which formed part of the endowment of this benefice. It is probable that at this time augmentation of the stipend so provided was made from other sources.

These deeds appear to me to show a clear intention that the perpetual curate should be resident on the lands so provided, and certain provisions of the Act, 1 Geo. 2, c. 18 (Irish), have been referred to as imposing an obligation of residence upon...