Re The Estate of Richard Bayley, Owner; ex parte Mary O'Connell, Petitioner

• Jurisdiction: Ireland
• Judgment Date: 26 November 1863
• Date: 26 November 1863
• Court: Court of Appeal in Chancery (Ireland)

In re the Estate of RICHARD BAYLEY,

Owner;

Ex parte MARY O'CONNELL,

Petitioner.

Ch. Appeal.

Hamilton v. MillsENR 29 Beav. 193.

Fitzmaurice v. v. SadleirUNK 9 Ir. Eq. Rep. 595.

Hewison v. NegusENR 16 Beav. 594.

Muskerry v. Chinnery L1. & G., temp. Pl. 182.

Greene v. O'KearneyIR 2 Ir. Com. Law Rep. 267.

M'Clintock v. Irvine 10 Ir. Chan. Rep. 480.

Montgomery v. MontgomeryENR 3 Jo. & Lat. 47.

Kenworthy v. Bate 6 Ves. 793.

Brown v. Higgs 8 Ves. 861.

Jebb v. TugwellENR 20 Beav. 84; S. C. 2 Jur., N. S. 54.

Butterfield v. HeathENR 15 Beav. 408.

Hewison v. NegusENR 16 Beav. 594.

Barron v. Barron 8 Ir. Chan. Rep. 361.

Doe v. Robinson 8 B. & c. 296.

Hegarty v. M'NallyIR 13 Ir. Com. Law Rep. 532.

Wall v. ByrneENR 2 Jo. & Lat. 118.

Moore v. CleghornENR 10 Beav. 423.

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

Crozier v. Crozier 3 Dr. & War. 383.

Holliday v. OvertonENR14 Beav. 467.

Tatham v. VernonENR29 Beav. 604.

Scarven v. Blunt 7 Ves. 249.

Goodright d. Humphreys v.Moses Wm. Bl. 1019.

Butterfield v. HeathENR 15 Beav. 408.

Hewison v. NegusENR 16 Beav. 594.

Doe d. Baverstock v. Rolfe 8 A. & E. 650.

Greene v. O'KearneyIR 2 Ir. Com. Law Rep. 267.

Atkinson v. SmithENR 3 De G. & J. 186.

Doe v. RobinsonENR 8 B. & C. 296.

CHANCERY REPORTS. 215 1863. Ch. Appeal. Court of wolf iu CbanterV. In re the Estate of RICHARD BAYLEY, Owner ; Ex parte MARY O'CONNELL, Petitioner. Nov. 25, 26. A married woman, enÂtitled to a share in a leÂgacy payable out of real esÂtate, with the consent of her husband, agreed, toÂgether with other parties beneficially inÂterested, to accept the lands in lieu of the money. The lands were accordingly conveyed by the trustee of the will to a trustee ; and by a subsequent deed declaring the trusts, a portion of the lands was limited to the husband and wife for their joint lives, and to the survivor for life, with remainder to such of their children as the husband in his lifetime, or the wife if she survived him, should appoint. Held (by the LORD CHANCELLOR), that the assignment of the lands to the trustee did not operate as a reduction into possession of the wife's chose in action, and that the lands into which the money was thereby converted were subject to the same uses and trusts as the money. Held also (by the LORD CHANCELLOR), that the modification of the prior rights and interests of the husband and wife in the lands formed a sufficient conÂsideration in the deed declaring the trusts, to make, it a deed for valuable conÂsideration. Lands held under a lease for lives renewable for ever were conveyed by deed to a trustee. By a subsequent deed the trustee declared that the previous assignment had been accepted by him " to the uses and for the trusts following-upon trust to permit A, and B his wife, to hold one third of the lands during their joint lives, and the survivor, for the life of such survivor ; and after the death of the survivor, to permit the said one third to be held by such children or child of A and B as should be living at the death of the survivor, in such shares and proportions as A in his lifetime, or B, if she survived A, should appoint (if only one child, such child to take the entire): and as to one other third of the interest in the said lands, upon trust for C, his heirs and assigns for ever; and as to the remaining third of the interest of the said lands, upon trust for D, his heirs and assigns for ever; and to no other use, intent or purpose whatsoever." _Held (by both the LORD CHANCELLOR and the LORD JUSTICE OF APPEAL), that, as it was manifestly intended to dispose of the entire interest in the lands by this deed, the-absence of words of inheritance in the trust to the children of A and B did not prevent A from appointing to one of the children the quasi fee of the lands. 216 CHANCERY REPORTS. with other lands, held under a lease dated the 6th of May 1746, whereby the then Earl of Granard demised the entire of- the lands of Shanacoole, in the county of Waterford, to George Bellamy and his heirs, for three lives, with a covenant for perpetual renewal, subject to the rent and fines for renewals therein mentioned. That lease was renewed on the 10th of May 1763 by the Earl of GranÂdison to George Bellamy, upon the dropping of one of the lives mentioned in the lease. George Belamy, by his will dated the 3rd of November 1756, devised the lands comprised in the lease of the 6th of May 1746 to Daniel Gahan and Stephen Creagh Butler, upon trust to sell the same for the payment of the testator's debts, including a debt due to the testator's nephew-in-law John Everard the elder ; and the tesÂtator bequeathed to his niece Anne Everard (wife of John Everard), notwithstanding her coverture, the sum of £1500, out of the purÂchase-money of the lands, together with the residue of his personal estate. He apppointed his wife Anne Bellamy, Daniel Gahan, and Stephen Creagh Butler, executors of his will. George Bellamy died soon after the date of his will; and John Everard the elder (husband of the legatee Anne Everard) died in September 1764 intestate, leaving a widow and three children, namely, William Everard, John Everard the younger, and Anne Everard the younger, him surviving. Anne Everard the elder obtained administration to John EveÂrard, and died intestate in December 1775. Anne Everard the younger married Peter Bayley on the 31st of July 1776. In 1783, Anne Bayley and her brother William Everard obtained letters of administration of the goods of Anne Everard the elder, and also of the goods of John Everard the elder, unadministered by their mother Anne ; and thereby became legally entitled to recover the debt due by George Bellamy to John Everard, and the sum of £1500 beÂqueathed by George Bellamy to Anne Everard. By deed, dated the 17th of March 1783, Stephen Creagh Butler, the surviving trustee and executor of the will of George Bellamy, with the consent of William Everard, Peter Bayley and Anne his wife, conveyed the lands of Shanacoole to James Gee and his heirs, CHANCERY REPORTS. 217 for all the estate and interest under the lease of the 6th of May 1746, and its renewals. By deed, dated the 18th of April 1786, made between James Gee of the one part, and Peter Bayley, Anne Bayley, William Everard, and John Everard, of the other part, the trusts of the deed of the 17th of March 1863 were thus declared Now, I James Gee do hereby acknowledge and declare that the said assignment exeÂcuted to me by the said Stephen Creagh Butler was accepted by me to the uses and for the trusts following, that is to say, upon trust to permit and suffer the said Peter Bayley and Anne his wife to have, hold and enjoy the one-third of said farm and lands of Shanacoole, subject to one-third of the yearly reserved rent, and to one-third of the renewal fines, for and during their joint lives, and by the survivor of them, for the life of such survivor ; and from and after his death to be held and enjoyed by such child or children of the said Peter Bayley, by the said Anne his wife, as then shall be living at the time of the death of such survivor of them, in such shares and proportions as the said Peter Bayley in his lifetime, or the said Anne, if she survive him, shall by...