Re The Estate of Robert M'Neale, Owner; Poole and Others, Petitioners

• Jurisdiction: Ireland
• Judgment Date: 21 April 1858
• Date: 21 April 1858
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

In re the Estate of ROBERT M'NEALE,

Owner;

POOLE and others,

Petitioners.

Allen v. AllenUNK 2 Dr. & War. 307; S. C., 4 Ir. Eq. Rep. 472.

Norton v. FreckerENR 1 Atk. 524.

Baker v. BayleyENR 2 Vern. 225.

Blake v. Luxton Coop. Rep. 178.

Doe v. LuxtonENR 6 T. R. 291.

Allen v. AllenUNK 4 Ir. Eq. Rep. 484.

Doe v. DuesburyENR 8 M. & W. 530.

Roe v. JeffreyENR 7 T. R. 589.

Glover v. MoncktonENR 3 Bing. 13.

Doe v. WebberENR 1 B. & Ald. 713.

Doe v. JohnstonENR 8 Exch. Rep. 81.

Blinston v. WerburtonENR 2 K. & J. 405.

Smith v. WebberENR 1 B. & Ald. 713.

Roe v. JefferyENR 7 T. R. 589.

In re Rye's SettlementENR 10 Hare, 106.

Johnson v. JohnsonENR 8 Ex. 81.

O'Donohoe v. KingUNK 8 Ir. Eq. Rep. 185.

Wealthy v. BosvilleENR Lee's Rep., temp. Hard., 258.

Challenger v. SheppardENR 8 T. R. 597.

Nichols v. HooperENR 1 P. W. 598; S. C., 2 Vern. 686.

Mahaffy v. Rooney 5 Ir. Jur. 245.

Moore v. CleghornENR 16 Beav. 423.

Hodson v. BallENR 14 Sim. 558.

Allen v. Allen 2 Dr. & War. 307.

Wyld v. LewisENRENR 1 Atk. 432; S. C., West's Cases, temp. Hardwicke, 308.

Simmons v. SimmonsENR 8 Sim. 22.

Blinston v. WarburtonENR 2 K. & J. 400.

Todd v. DuesburyENR 8 M. & W. 514.

Manning v. Moore Alc. & Na. 96.

Grey v. Pearson H. L. C. 61.

388 CHANCERY REPORTS. 1858. case at Law would be governed by the case of Furnivall v. Coombes. Ch. Appeal. It is also necessarily conceded, that had this deed recited the sub READE stance of the proviso, the reform of it would 1 - ve been almost ARMSTRONG a matter of course ; the difficulty is therefore of a purely technical Judgment. character, which it is in the power and is the duty of a Court of Equity to remove. The case of Ball v. Storey (a), where such relief was granted, seems to apply to the very facts of this case; and, for all these reasons, I think that the decree of the late Lord Chancellor must be affirmed. (a) 1 Sm. & Stu, 210. ' In re the Estate of ROBERT M'NEALE, Owner; POOLE and others, Petitioners. April 21. A testator, by his will, made in 1822, devisÂed all his freeÂhold property to trustees, upon trust, to permit his daughter Rosabella, who was also his heiress-atÂlaw, to receive the rents and profits " for such term, time and space as my said daughter shall remain unmarried, or marry with the consent of one or both of my above-named trustees. But in case my mid daughter Rosabella shall not marry with consent of one or both of my said trustees," then she was to receive only an annuity of £60 for her life, and the residue of the property was to be vested in Government stock for the benefit of her issue ; " and in case of no issue, I bequeath such residue to my right heirs : " and in case Rosabella died unÂmarried, or without lawful issue, the testator devised her property over. The testator, together with other persons, was seised of the lands in question, together with other lands, by virtue of a lease for lives renewable for ever, made in 1744. In 1818, a partition was made of the lands comprised in that lease. In 1825, the testator died. In 1829, a renewal of the lease of 1744 was made to a trustee, upon trust, as to one moiety of the lands, for himself and his heirs, and, as to the other moiety, for the several persons entitled thereto, according to their respective rights. To that renewal, Rosabella and the other persons interested under the lease of 1744 were parties.-Held, that Rosabella took, under the will, an estate quasi in tail, and that that estate was barred by the renewa1 of 1829. CHANCERY REPORTS. 389 Ballymakellett, being parcel of the lands comprised in the lordship of Ballymascanlon, to hold to the said Daniel M'Neale the elder, his heirs and assigns, for the three lives therein named, with a covenant for perpetual renewal. In 1814, the estate and interest of Daniel M'Neale the elder, in the several lands comprised in the deed of the 28th of June 1744, became equally subdivided amongst several persons ; and Daniel M'Neale, one of the sons of Daniel M`Neale the elder, became entitled to part of the townland of Proleek, and part of the townland of Ballymakellett, as held under the deed of the 28th of June 1744, for the whole estate and interest thereby demised, and was also entitled in fee to certain lands called Rosemount. By deed of the 8th of August 1814, being the settlement executed on the occasion of the marriage of the said Daniel M'Neale with Anne Skelton, Daniel M'Neale conveyed all his estate and interest in his part of Proleek, and his part of Ballymakellett, and in his lands of Rosemount, for the purpose of securing for Anne Skelton, in the event of her surviving him, for and during her natural life, an annuity or yearly rentcharge, by way of jointure, of £52 Irish. Daniel M'Neale, being so entitled, but subject to the provisions of the last-mentioned deed, made his will, dated the 22nd of April 1822, in the following words In the name of God, amen. I, Daniel M'Neale, of Rosemount, in the county of Louth, Esq., being weak in body, but of sound and disposing mind, memory, and underÂstanding, do make and publish this my last will and testament, hereby revoking all other will or wills heretofore made, in manner and form following :-In the first place, I order and direct that all my just debts may be paid as soon as may be, and my funeral expenses after my death. I order my body to be privately and respectably interred along with that of my first wife. I leave, devise and bequeath unto John Getty, of Dundalk, and Hamilton Skelton, of the city of Dublin, the survivor and survivors of them, and their heirs, all my freehold property in the lordship of Ballymascanlon and county of Louth, in trust for the several intents and purposes hereafter mentioned ; that is to say, to permit and suffer my daughter Rosabella M'Neale to have, take and receive the rents, issues and 390 CHANCERY REPORTS. profits of my townlands, or parts of townlands, of Proleek and Bal. lymakellett, in said lordship of Ballymascanlon and county of Louth, for such term, time and space as my said daughter shall remain unmarried, or marry with the consent of one or both of my above-named trustees. But in case my said daughter Rosabella shall not marry with consent of one or both of my said trustees, I order and direct that she shall only receive the sum of sixty pounds during her natural life, her own receipts to be given for said annuity, and no other, and without the intermeddling of her husband so, marrying her without consent as aforesaid ; and I order and direct the residue of my said property (over and above my wife's settlement), to be vested in Government stock, so often as it shall amount to the sum of £10 or upwards, and to go and accrue to the use and benefit of the issue of my said daughter, lawfully begotten, if any she may have, share and share alike, on such issue attaining the age of twenty-one years ; and in case of no issue, I bequeath such residue to my right heirs. Further, in case of my said daughter dying unmarried or without lawful issue, I leave, devise and bequeath unto my nephew James Wolfe 31'Neale my part of the townland of Proleek, during his natural life ; and, after his decease, I leave, devise and bequeath said townland of Proleek unto Donald N. 31'Neale, fourth son of said James Wolfe M.Neale, Esq., his heirs and assigns for ever : and in such ease, further, I leave and bequeath unto Robert INI'Neale, second son A' said James Wolfe PIPNeale, my part of said townland of Ballymikellett, in said county of Louth, and his heirs and assigns for ever, paying, by instalments of £25 yearly for two years, the sum of 1,50 sterling to my nephew Daniel Henry M'Neale Black thereout. I leave, devise and bequeath to my dearly beloved wife Anne N'Neale, and daughter Rosabella 31`Neale, my house and lands of Rosemount, together with my household furniture, stock of every kind and cattle, between them, share and share alike ; after the decease of my said wife, to go to my said daughter Rosabella and in case of no issue lawfully begotten of my said daughter, I leave, devise and bequeath my right, title and interest in said lands of Rosemount to William Skelton and Philip Shelton, sons of my sister-in-law Esther Skelton, of Addavoil, CHANCERY REPORTS. 391 in the county of Armagh, share and share alike, for ever, paying 1858. thereout unto Samuel Wright and John Wright, sons of my sister- Ch. Appeal. in-law Elizabeth M'Cl-arrett, otherwise Wright, when convenient, le re In Nt ALE. the sum of £50 sterling. I leave to Hamilton Skelton my gun, and Statement. two guineas to buy a mourning ring. I leave to my natural daughter Biddy Magrath £2 per annum for ten years, provided she lives so long. It is my earnest wish and desire that my said wife and daughÂter will live together in harmony so long as my said daughter may remain unmarried.-Dated. at Rosemount, this 26th day of April 1822.- Daniel 1VI'Neale." The testator died in 1825, leaving Rosabella M`Neale his only child and heiress-at-law. Immediately upon the decease of Daniel 11`Neale, Rosabella enÂtered into possession of the testator's parts of the said lands of Proleek and Ballymakellett, and continued in possession until her death. Donald M`Neale, mentioned in the will, died in 1829, intestate, and without having been married, and without having in anywise dealt with the estate limited to him by the will, and left Malcolm 111'.1sTeale, his eldest brother, his heir-at-law. Malcolm 111'Neale died in 1845, and by his will devised all his estate and property, real and personal, unto the said Robert M'Neale, the owner in this matter. In 1817, one moiety of the lands comprised in the said deed of the 28th of June 1744 having become vested in Christopher Moore, on or about the 1st day of July 1817, s renewal of said lands of Proleek and Ballymakellett, together with the other lands comprised in the said lease of the 28th of June 1744, was granted to Christopher Moore...