Riggs Miller v Wheatley

• Jurisdiction: Ireland
• Judgment Date: 28 February 1891
• Docket Number: (1889 — F. No. 115.)
• Date: 28 February 1891
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before HARRISON, O'BRIEN, and JOHNSON, JJ.

(1889 — F. No. 115.)

RIGGS MILLER

and

WHEATLEY

Biggs v. Sadlier 10 Ir. Eq. R. 522.

Sadlier v. Biggs 4 H. L. Cas. 435.

Birt v. BarlowENR 1 Doug. 171.

Lester v. Garland 15 Ves. 248.

Railway Sleepers Supply Co. 29 Ch. Ch. Div. 204.

Townsend v. AshENR 3 Atk. 336.

Davies v. LowndesENRENR 5 Bing. N. C. 161, at p. 173; 6 M. & W. 603.

Doe d. Cadwalader and Other v. PriceENR 16 M. & W. 603.

Cahill v. CahillELR 8 App. Cas. 420.

Paul Pry d. Farrell v. MaguireUNK 2 J. & S. 539; 3 Ir. L. R. 187.

Newham v. RaithbyENR 1 Phillim. 315.

Smith v. BlakeyELR L. R. 2 Q. B. 326.

The King v. North Petherton 5 B. & Cr. 509.

Glasington and Others v. RawlinsENR 3 East, 406.

Lester v. Garland 15 Ves. 248.

Roe d. Wrangham V. Hersey 3 Wilson, 274.

Langdale V. BriggsENR 3 Sm. & Giff. 262.

Railway Sleepers Supply Co. 29 Ch. Div. 204.

Miller v. TraversENR 8 Bing. 244.

Lester v. Garland 15 Ves. 445.

Watson v. PearsENR 2 Camp. 294.

Peyton v. M'DermottUNK 1 Dr. & Wal. 198.

Stockbridge v. QuickeENR 3 Car. & Kir. 305.

Davies v. LowndesENR 5 Bing. N.C. 161.

Farrell v. MaguireUNK 3 Ir. L. R. 187.

O'Connor v. MaloneENR 6 CL & Fin. 572.

Birt v. BarlowENR 1 Doug. 171.

White d. Howth v. Pike Cooke & Alc. 42.

Lord Townsend v. AshENR 3 Atk. 336.

Malcolmson v. O'Dea 11 H. L. Cas. 593, 611.

Lester v. Garland 15 Ves. 248,258.

The Railway Sleepers Supply Co. 29 Ch. Div. 204.

Device — Condition — Name and arms clause — Time for compliance — Fine levied by married woman — Evidence — Memorial of deed — Parochial register — Proper custody of deed — Matter of pedigree — Action for declaration of title —

144 LAW REPORTS (IRELAND). [L .R RIGGS MILLER v. WHEATLEY (1). (1889-F. No. 115.) Devise-Condition--Name and arms clause-Time for compliance-Fine levied by married woman-Evidence-Memorial of deed-Parochial register-Proper custody of deed-Matter of pedigree-Action for declaration of title-Acts and admissions of party seised. Under the limitations of a will, each devisee, becoming entitled to the actual possession of the devised lands, was directed to take the name and bear the arms of the testator, subject to forfeiture on neglect to do so for the space of one year next after becoming entitled to the possession of the estates. A tenant for life of the devised estates died on the 9th April, 1888 ; and on the 9th April, 1889, the next remainder-man did what, if in time, was admittedly a compliance with the condition : Held, that in the computation of time for this purpose the day of the death of the tenant for life was not to be counted, and that therefore the condition was duly complied with. A fine levied by a married woman of lands acquired by descent, even before entry, is valid, though not made with proclamations. The fine need not show the separate examination of the married woman. The memorial of a deed upwards of thirty years old, and executed by the grantors, is admissible as primary evidence against persons claiming under them of the facts stated therein, without proof of handwriting. As evidence of the marriage of R. and M., an entry of the marriage of two persons of the same name (but not otherwise identified), in the parochial register of a Protestant parish, in which M. did appear to have resided, bearing date in the year 1816, was produced by the existing incumbent of the parish, who also proved that the register had been retained in the church by permission of the Master of the Rolls. The entry in question purported to be signed " W. Lewis, Vicar." Entries in similar handwriting in the register appeared from 1791. The incumbent stated that he had been in the church thirteen years, and so far as his knowÂledge went it was the duty of the clergyman to make the entry, but was not aware of any canon in force at the time requiring such entries to be made ; and no father evidence was offered as a foundation for the reception of the entry. Held (diss. O'BRIEN, J.), that the entry was not admissible. (1) Before HARRISON, O'BRIEN, and JOHNSON, JJ. Voir.. XXVIII.] Q. B. & EX. DIVISIONS. Per JOHN soN, J. Such an entry would be evidence as made in the course of professional duty if the parties were identified; the duty shown, and the handwriting and official character of the person who made the entry and his death proved ; and after such lapse of time his death might be presumed. Per O'BRIEN, J. (a) No proof of the identity of the parties was required. (b) The circumstance that M's. residence was not in the parish where the marÂriage was registered was immaterial because a license, if necessary, should be presumed. (c) The original register of births, deaths, or marriages of any religious denomination kept in the place of worship where not affected by the Registration Acts, 1863, is evidence on proof of the handwriting, and in certain cases without that proof. (d) That the presumption from a person acting in an official position, coupled with the evidence given by the incumÂbent, dispensed with any proof of the handwriting. A suit to establish the will, and administer the estate of a testator, in which his executors and trustees were defendants, was compromised by a deed to which the executors and trustees were parties, re-settling the lands in effect, with some variations, to the uses of the will. Held, that the production of this deed by the solicitors for the trustees and executors was production from proper custody. In an action for declaration of title where the plaintiff has to prove matters of genealogical pedigree, evidence of family reputation is admissible for the purpose, including questions of time. NEW TRIAL MOTION. Action to establish the plaintiff's title to Ballycasey and other lands in the barony of Bunratty and county of Clare. The action was tried before Palles, C.B., and a jury in Easter Sittings, 1890, and resulted in a verdict for the plaintiff. The defendant having obtained a conditional order for a new trial upon the ground of the reception of illegal evidence and misdirection at the trial, the plaintiff now showed cause. The material facts were as follows : Sir John Edward Riggs Miller, Bart., who died upon the 2nd August, 1825, by his will devised and bequeathed " all his freehold and real estate whatsoever, situate in the county of Limerick and county of the city of Limerick," upon certain limitations hereinafter mentioned. The testator never possessed any estates in the county of Limerick, but possessed freehold estates in the county of Clare, county of the city of Limerick, and county of Cork. The testator devised " all his freehold and real estate whatsoever, situate in the county of Limerick and county Vol,. XXVIII. LAW REPORTS (IRELAND). [L. R. I. of the city of Limerick" (after limitations which failed), to John Manvers (who assumed the name of John Riggs Miller) for life, remainder to his issue, with remainder to " Eliza Miller, daughter of John Miller, of Toonagh, in the county of Clare," for life, with remainder to her eldest son in tail. After testator's death Jane Elizabeth Wheatley, who was testator's sister and heiress-at-law, and her husband, John Wheatley, by indentures of lease and release, dated respectively the 31st August and 1st September, 1825 (after reciting that testator evidently referred to his county Clare estate when he spoke of his county of Limerick estate), granted and released the testator's Clare estate, subject to a mortgage and certain life annuities which have since expired, upon trust for the said Jane Elizabeth Wheatley for life, for her separate use, and after her death as she the said Jane Elizabeth Wheatley should by deed or will appoint ; and a fine was levied by the said Jane Elizabeth Wheatley and her husband John Wheatley, of the testator's county Clare freehold estate, in Hilary Term, 1826, in the Court of Common Pleas in Ireland. In 1826 a bill was filed in the English Court of Chancery on behalf of John Riggs Miller, then an infant, to carry out the trusts of testator's will against Jane Elizabeth Wheatley and other defendants (1) ; and after certain proceedings this suit was compromised upon the terms that Jane Elizabeth Wheatley should take and retain certain estates of the testator in the county and city of Cork, and that the testator's county Clare lands should, subject to said life annuities and to certain uses during the life of the said John Riggs Miller, devolve, according to the limitations expressed in the will of the testator with respect to the estates therein described to be situate in the county of Limerick and city of Limerick. By indenture dated the 31st December, 1833, made in pursuÂance of said compromise, the said Jane Elizabeth Wheatley, in exercise of the power reserved to her by the said indenture of the 1st September, 1825, and the said fine, and of all other powers her thereunto enabling, appointed and directed that testator's county Clare freehold estate should, subject to said annuities, go (1) See Miller v. Travers, 8 Bing. 244, VOL. XXVIII.] Q. B. & EX. DIVISIONS. 147 to and devolve upon the said John Riggs Miller for life, with Q. B. Div. remainder to his first and other sons in tail, with remainder to his 1890. first and other daughters in tail, and for default of such issue, to In' such and the same uses as were declared by the said testator's will WHEATLEY. concerning testator's freehold estate in the county of Limerick and county of the city of Limerick. Accordingly, John Riggs Miller entered into and continued in possession of the county Clare estate until his death without issue, which took place upon the 9th April, 1888 ; and the said Eliza Miller having died in 1874, her eldest son, the present plaintiff, claimed the county Clare estate, arid by this action sought to establish his title thereto. In the will of Sir John Edward Riggs Miller, the testator, there was a direction as follows, that " All persons who for the...