Robb and Reid v The Right Rev Bishop Dorrian

• Jurisdiction: Ireland
• Judgment Date: 03 February 1877
• Date: 03 February 1877
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

Before PALLES, C. B., O'BRIEN, J., FITZGERALD, B., FITZGERALD, J., BARRY, J., and DOWSE, B.

ROBB AND REID

and

THE RIGHT REV. BISHOP DORRIAN.

Mellish v. MellishENR 2 B. & C. 520.

Garrod v. GarrodENR 2 B. & Ad. 87.

Wyld v. LewisENR 1 Atk. 432.

Jones v. DaviesENR 4 B. & Ad. 43.

Smart v. Prujean 6 Ves. 560.

Slywright and Page's Case 1 Leon v. 166.

Wilson v. ShortUNK 6 Ha. 366.

The Attorney-General v. DelaneyUNK Ir. R. 10 C. L. 104.

Hartford v. Power Ir. R. 2 Eq. 204.

Robinson v. RobinsonENR 1 Burr. 38.

Davis v. KempENR Carth. 4, 5: Eq. Cas. Ab. 216, pl. 7.

Blewitt v. RobertsENR Cr. & Ph. 274.

Nicholas v. HawkesUNK 10 Ha. 342.

Nelson v. SmallUNK 13 Ir. C. L. R. 558.

Grieves v. Case 1 Ves. J. 519.

Thornber v. WilsonENR 3 Drew. 245.

Pensterd v. PavierENR Tothill, 34.

Pember v. Inhabitants de KingtonENR Nelson, 40.

Joyce v. OsborneENR Tothill, 34.

Partridge v. Strange Plowd. 88.

Underwood v. Lord Courtown 2 Sch. & Lef. 65.

Doe d. Williams and Protheroe v. EvansENR 1 C. B. 717.

Dickson v. BurrellELR L. R. 1 Eq. 337.

Doe d. Williams v. ProtheoreENR 1 C. B. 717.

Nelson v. SmallUNK 13 Ir. C. L. R. 558.

Prosser v. EdwardsENR 1 Y. & C. Ex. 481.

Donnelland v. O'Neill Ir. R. 5 Eq. 523.

Doe v. AldridgeENR 4 T. R. 264.

Doe d. Toone and West v. CopestakeENR 6 East, 328.

Jack v. Reilly 2 H. & Br. 301.

Incorporated Society v. Richards 1 Dr. & War. 320.

Attorney-General v. CockENR 2 Ves. Sen. 273.

Morris v. MorrisUNK Ir. R. 7 C. L. 295.

Batteste v. Maunsell Ir. R. 10 Eq. 314.

Charitable devise 7 & 8 Vict. c. 97, ss. 15, 16 Pretenced title Conveyance of 10 Car. 1. Sess. 3, c. 15, s. 2, Ir.

292 THE IRISH REPORTS. LI. R.. Conz."Pleas. treat this case as if our decision really decides or affects the right;. 1877. of the parties, and to consider it as a case in which the right to a. Pl7RDON large landed property was involved :-in that view of it I am satis v. ox fled the trial cannot be treated as satisfactory, and that there EARL LONGFORD. should be a new trial. We are all of opinion that the costs of the. former trial shall abide the final result of the case, and that there should be no costs of the motion. Order absolute for a new trial. Attorney for the Plaintiff : W. Mooney. Attorneys for the Defendants : S. Beeves 8' Beeves. (EXCHEQUER CHAMBER) (1). -Exch. Ghana. ROBB AND REID v. THE RIGHT REV. BISHOP 1877. DORRIAN. Jan 17. Feb. 3. Charitable devise-7 4.8 Viet. c. 97, ss. 15, 16-Pretenced title-Conveyance of-10 Car. 1. Sess. 3, c. 15, s. 2, Ir. A testatrix, seised. in possession of an estate in fee-farm in lands, and who died within three months after the execution of her will, devised them in 1869 to " The Right Rev. Patrick Dorrian, R. C. Bishop of Down and Connor, and his. successor in said bishopric," and also bequeathed to "The Right Rev. Patrick Dorrian, R. C. Bishop, and his successor, the sum of 2 annually, chargeable upon said property," for the purpose of having Masses celebrated for the repose of her soul and those of all members of her family; under which devise the Defendant entered into possession: the Plaintiffs claimed the same premises under a deed of conveyance, executed in 1874, from the heir-at-law, who had never been in possession or receipt of the rents or profits. In ejectment on the title, the Plaintiffs contended that the devise to the Defendant was for a charitable purÂÂpose, and was therefore void under s. 16 of the Charitable Donations and Bequests Act (7 & 8 Vict. c. 97), inasmuch as the testatrix died within three months after the execution of her will, and that, consequently, the estate descended to the heir as in case of intestacy ; the Defendant, on the other hand, contended that the devise was not for a charitable purpose, and that, at any (1) Before PALLES, C. B., O'BRIEN, J., FITZGERALD, B., FITZGERALD, BARRY, J., and DowsE, B. VoE. XI.] COMMON LAW SERIES. 293 rate, the conveyance to the Plaintiffs of a pretenced title was void under the Exch. Charn. 10 Car. 1, Sess. 3, c. 15, s. 2, Ir. (1) :-Held (affirming the decision of the 1877. Common Pleas) that the Plaintiffs were not entitled to recover :-because, per RozB & war, PALLES, C. B., BARRY, J., and DOWSE, B., although the devise was void the v. deed was also void ; per O'BRIEN, J., the devise was valid and the deed was DORRIAN. void; per FITZGERALD, B., and FITZGERALD, J., the devise was valid. APPEAL by the Plaintiffs against an order of the Court of Common Pleas discharging a conditional order to enter the verdict for the Plaintiffs pursuant to leave reserved. See the report of the case in the Court below (Ir. R. 9 C. L. 483), where the devise and facts are fully stated. The Attorney-General (May), W. D. Andrews, Q. C., and Toile-ton, for the Plaintiffs, in support of the appeal. Upon the first point, as to the character of the devise, they cited, in addition to the cases cited in the Court below, Hellish v. Mellish (2) ; 2 Jarm. Wills, 378, 379 (2nd ed.); Garrod v. Garrod (3) ; Wjld v. Lewis (4); Jones v. Davies (5) ; Smart v. Prujean (6). As to the second point, that of the conveyance by the heir to the Plaintiffs, they contended that to avoid the deed under the statute of Car. 1 it was necessary to show that the Plaintiffs,At the time of the conveyance, had knowledge that the heir had not been in (1) 10 Car. 1, Sess. 3, c. 15, s. 2 (Irish).-" No person or persons, of what estate, degree or condition so-ever he or they be, shall from henceÂÂforth bargaine, buy or sell, or by any wayes or means obtaine, get or have any pretenced rights or titles, or take, promise, grant or covenant to have any right or title of any person or 'persons in or to any mannors, lands, tenements or hereditaments ; but if such person or persons which shall so bargaine, sell, give, grant, covenant or promise the same, their ancestors, or they by whom he or they claime the same,, have been. in possession of the same or of the reversion or reÂÂmainder thereof, or taken the rents or profits thereof by the space of one whole yeare next before the said barÂÂgaine, covenant, grant or promise made upon paine that he that shall make any such bargaine, sale, promise, covenant or grant, to forfeit the whole value of the lands, tenements or hereÂÂditaments so bargained, sold, promised, covenanted or granted contrary to the forme of this Act ; and the buyer or taker thereof, knowing the same, to forfeit also the value of the said lands, tenements or hereditaments so by him bought or taken as is above said." (2) 2 B. & C. 520. (3) 2 B. & Ad. 87. (4) 1 Atk. 432. (5) 4 B. & Ad. 43. (6) 6 Yes. 560; 294 THE IRISH REPORTS. [I. R. Exch. Chang. possession : Slywrigh,t and Page's Case (1). As to Champerty, 1877. Wilson v. Short (2). ROBB & REID v. O'Hagan, Q. C., .31-91a/ion, Q. C., and. Ross, for the Defendant, DORBTAN. contra. As to the first point, viz., the character of the devise, they cited. The Attorney-General v. Delaney (3) ; Hartford v. Power (4) ; Robinson v. _Robinson (5); Davis v. Kemp (6); Bleat v. Roberts (7); Nichols v. Hatches (8). As to the second point, as to the deed, they cited. Nelson v. Small (9); and as to maintenance generally, Bac. Ab. 494, tit. " Maintenance." Feb. 3. PALLES, C. B. :- This is an action of ejectment on the title, brought to recover possession of a tenement in North-street, Belfast. The Plaintiffs claim through the heir-at-law of Felix Devlin, deceased, who at the time of his death was admittedly seised under a lease for lives renewable for ever of the tenement in question. The title of the Plaintiffs was disputed on various grounds, of which it is unnecessary to advert to more than two. It was conÂÂtended by the Defendant, firstly, that the tenement had. been validly devised, and therefore did not pass to the heir-at-law ; and, secondly, that; even if the devise were inoperative, the deed. of conveyance through which Plaintiffs derived title from the heir-atÂÂlaw was void, under the Act 10 Car. 1, Sess. 3, c. 15 [Irish]. The first question which I propose to discuss is, whether the devise was valid. Felix Devlin, by his will dated the 18th of November, 1839, devised this tenement (inter alia) to trustees, to hold for his estate and interest therein, upon trust after his decease for the sole use and benefit of his daughter Cecilia Devlin, otherwise M'Neill, and such other person or persons as she should, by her last will and testament, or by any deed or appointment in writing, devise the (1) 1 Leon. 166. (2) 6 Ha. 366. (3) Ir. R. 10 C. L. 104. (4) Ir. R. 2 Eq. 204. (5) 1 Burr. 38. (6) Carth. 4, 5 : Eq. Cas. Ab. 216, pl. 7. - (7) Cr. & Ph. 274. (8) 10 Ha. 342. (9) 13 Ir. C. L. R. 558. VOL. XI.] COMMON LAW SERIES. 295 same, and in default of such will or appointment in writing, in Exch. Chang. trust for his lawful heirs. 1877. _OM Cecilia M'Neill, by her will dated the 28th of March, 1869, R recites that she is possessed (inter alia) of the tenement in question, which she describes as " the house and premises numbered 173 in North-street, Belfast, held under a lease for ever;" and then proÂÂceeds as follows :-" all of which said houses, premises, I devise to the Right Reverend Patrick Dorrian, Roman Catholic Bishop of Down and Connor, and his successor in the said bishopric; and also all my furniture and all my property of every description, subject to a payment or annuity of 14 a-year to my grand-nephew John Graham, until and including the year 1880, commencing from my demise, if he shall so long live ; and to my nephew Felix Devlin a bequest of 20 sterling." " I also leave to The Right Reverend Patrick Dorrian, Roman Catholic Bishop, and his successor, the sum of 2 annually, chargeable upon said property, for the purÂÂpose of having Masses celebrated annually for the happy repose of my soul, and those of all the other members of my family." The question is, whether the devise of the house is for pious and charitable uses, within the 16th section of the Act 7 & 8 Viet. O. 97. If...