Rooke v Plunkett

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 18 June 1901
• Court: Chancery Division (Ireland)
• Date: 18 June 1901
• Docket Number: (1900. No. 605.)

ROOKE

and

PLUNKETT

Chancery Division

Settlement — Construction — Limitation of real estate — Eldest son — Mortgage by tenant for life and tenant in tail — Child other than son becoming entitled to estate under settlement — Disentailment — Portions for younger children — Power of appointment — Revocation of.

Adams v. BeckENR 25 Beav. 648.

Boyes v. Cook 14 Ch. Div. 53.

Collingwood v. StanhopeELR L. R. 4 H. L. 43.

Domvile v. Winninghton 26 Ch. Div. 382.

Ellison v. ThomasENRENR 2 Dr. & Sm. 111; 1 De G. J. & S. 18.

Harrison v. RoundENR 2 De G. M. & G. 190.

Lord Teynham v. WebbENR 2 Ves. Sen. 198.

Macoubrey v. JonesENR 2 K. & J. 684.

Matthews v. PaulENR 3 Sw. 328.

Meyrick v. LawsELR L. R. 9 Ch. 237.

Morton's Trusts See foot-note.

Radcliffe v. BewesELR [1892] 1 Ch. 227.

Reid v. Hoare 26 Ch. Div. 363.

Saunders v. BoydELR [1891] 3 Ch. 394.

Scarisbrick v. Lord SkelmersdaleENR 4 Y. & C. Ex. 78.

Spencer v. SpencerENR 8 Sim. 87.

Wyndham v. FaneUNK 11 Ha. 287.

VoL. I.] CHANCERY DIVISION. 299, Court would not interfere to specifically enforce the contract, but Appeal. leave the plaintiffs to recover damages for the breach thereof. 1901. I discussed this defence, coming to the conclusion that it could GRAHAM not be. sustained on the facts ; but it was not argued, and it did CLOG. not then occur to me that it could be argued, that the plaintiffs in _Holmes, L.J. constructing Ranfurly-street had incurred a legal liability to the defendants. If I had been of this opinion, I should have found it difficult to concur in a judgment giving them the relief they sought. If I had anticipated the possibility of such an action as the present, I should have made it plain that I did not encourage it, and even, as my words stand, I find in them nothing to suggest it. Solicitor for the plaintiff : Samuel Ross. Solicitors for the defendant : Carson 8f DITowell. G. Y. ROOKE v. PLUNKETT. (1900. No. 605.) Settlement—Construction—Limitation of real estate—Eldest son—Mortgage by tenant for life and tenant in tail—Child other than son becoming entitled to estate under settlement—Disentailment—Portions for younger children—Power of appointment—Revocation of. By marriage settlement of 1839 an estate was settled on H. (the husband) for life, remainder to the first and every other son of the marriage successively in tail male. The'estate was charged with a sum of money (subject to life interests of H. and his wife therein) in favour of the children of the marriage "other than the son of the marriage who under the limitations of the settlement should become entitled to the lands" in such shares as H. and M. (the wife) or the survivor of them, should appoint, and in default of appointment in trust for such children equally, the shares to be vested at twenty-one or marriage. There was a hotchpot clause in the settlement. There were four children of the marriage—A., J., and C., sons, and one daughter. By deed poll of 1874 (after reciting the death of C. intestate) H. and M. appointed (subject to their life intereststherein) the sum of £5000, portion of the trust fund, to the daughter, M. R. 1901. June 5, 6,, 18. -300 THE IRISH. REPORTS. [1902. 111. 11. and appointed the residue of the fund to J., the second son. The deed poll 1901. contained a power of revocation over the share thereby appointed to J. HOOKE A., the first-born son, attained age, and joined with his father in mort v. gaging the estate for £1100 in 1876, and for £2000 in 1880, the lands having PLUNKETT. been disentailed by them for the purpose of carrying out the two loans, and to that extent only. J., the second son, joined in the mortgage of 1880 for the purpose of covenanting with the mortgagee that the principal sum of £2000 thereby secured, and interest thereon, should be paid before and have priority over his share and interest in the trust fund charged on the estate. The father, H., covenanted that so long as any money remained due on the mortgage security he would not exercise the power of revocation contained in the deed poll of 1874. A., the eldest-born son, died in 1883, intestate and unmarried. In 1884 H. and J. disentailed the estate. H. died in 1896 (having survived his wife), and thereupon J. became owner in fee of the lands subject to incumbrances. By his will H. purported to revoke the appointment contained in the deed poll of 1874 in favour of J. of the residue of the trust fund (after setting apart 5000, the portion for the daughter), but made no further appointment of it : Held, (1) that A. had become entitled to the estate under the limitations of the settlement by reason of joining with his father in charging the inheritance, and that consequently his representatives could not share in the trust fund charged on the estate in favour of the other children ; (2) That the revocation by H. in his will of the share appointed to J. by the deed poll of 1874 was invalid so far as it would prejudice the security of the plaintiffs (who were assignees of the mortgage of 1880), but that without prejudice to the mortgage the revocation was valid as between the parties entitled under the settlement of 1839 to the trust fund; and that the residue thereof (after providing for the £5000 appointed to the daughter of the marriage) went as unappointed to J. and the representatives of C., the share of J. therein being bound by his covenant in the mortgage deed of 1880. MOTION for judgment on admissions. By settlement dated the 28th May, 1839, made between Thomas Auchmuty of the first part, Margaret Domville Auchmuty of the second part, Henry Musters of the third part, James Hay and the Rev. William Domville of the fourth part, and Edward Cane and John Greig of the fifth part (being a settlement executed on the marriage of Henry Musters with Margaret Domville Auchmuty), the lands of Bryanstown were (subject to uses to secure pin-money and jointure which determined) limited and appointed to the use of Thomas Auchmuty for life, and after his death to the use of Henry Musters for life, and after his death to the use of the first and every other son VOL. I.] CHANCERY DIVISION. 301 successively in remainder of the marriage, and the heirs male M. R. of the body of each such son, every elder son, and the heirs male 1901. of his body, taking before any younger son, and the heirs male Rooxit of his body, with remainder over in default of issue. PLUNKETT. By the settlement a sum of £4000 (the husband's property) and a sum of £5100, three and a-half per cent. consolidated annuities (portion of the wife's fortune), was assigned to the trustees of the settlement (Edward Cane and John Greig), upon trust to pay the interest thereof to Henry Musters for life, and after his death to Margaret Domville Auchmuty for life, and after the death of the survivor of them, upon trust to stand possessed of the said sums in trust for all and every the child and children of Henry Musters and Margaret, his wife, other than the son of the said marriage who, under the limitations thereinbefore contained, should become entitled to the lands of Bryanstown, in such shares and proportions, and subject to such provisoes and limitations as the said Henry Musters and Margaret Domville Auchmuty, or the survivor of them, should by deed or will appoint, and in default of such appointment in trust for such child or children, who if a son or sons should attain the age of twenty-one years, or if a daughter or daughters should attain that age or be married, share and share alike. Th ere was a hotchpot clause in the settlement. Thomas Auchmuty died in 1843. There was issue of the marriage of Henry Musters and .Margaret, his wife, four children, viz. :—Auchmuty Henry Musters, the eldest son, John George Musters, Charles Ralph Auchmuty Musters, and Caroline Musters, all of whom attained the age of twenty-one years. Charles died before 1874 intestate and unmarried. By deed poll dated the 20th June, 1874, after reciting the death of Charles Musters and an intended marriage between Caroline Musters and the Honourable Thomas Plunkett, and setting out what the funds held in trust for the children were then represented by, Henry Musters and Margaret, his wife, in exercise of the power of appointment vested in them by the settlement of the 28th May, 1839, appointed £5000, portion of 1902—VoL. I. 302 THE IRISH REPORTS. [1902, If. R. the trust funds, to Caroline Musters, subject to their prior life 1901. interests, and further appointed the residue of the trust funds ROOK E (less the sum of one shilling) to John George Musters, subject PL UNKETT. to the same life-interests therein. The deed poll contained a. power of revocation over the share of the trust funds thereby appointed to John George Musters. By indenture dated the 21st June, 1876, and made between Henry Musters and Margaret, his wife, of the first part, AuchÂmuty Henry Musters, their eldest son, of the :second part, and the then trustees of the settlement of 1839 of the third part, being a mortgage to secure the sum of £1100 advanced by the trustees to Henry Musters and Auchmuty Henry Musters,. Margaret Musters postponed her contingent jointure under the settlement to the security intended to be thereby created, and Henry Musters and Auchmuty Henry Musters granted the lands of Bryanstown to the trustees, their heirs, and assigns, subject to redemption on repayment of the said sum of £1100. This indenÂture was duly enrolled on the 19th September, 1876, as a disenÂtailing deed, the disentailment being expressed to be only to the extent of the loan. The sum of £1100 so advanced by the trustees and secured by the mortgage represented portion of the funds subject to the trusts of the settlement. The balance of the funds was at the date of the execution of the mortgage of 1876 represented by a sum of £3692 6s. 2d. invested on the security of a family charge of £4000 Irish, and a sum of £4153 16s. 11d. invested on a...