Sandes v Cooke

• Jurisdiction: Ireland
• Judgment Date: 10 May 1888
• Date: 10 May 1888
• Court: Chancery Division (Ireland)

Appeal.

SANDES

and

COOKE

Shelley's CaseUNK 1 Rep. 93.

Frank v. StovinENR 3 East. 548.

Denn d. Webb v. PuckeyENR 5 T. R. 299.

Montgomery v. Montgomery 3 J. & L. 47.

Morgan v. ThomasELR 1 Q. B. Div. 75.

Bowen v. LewisELR 9 App. Cas. 890.

Shannon v. GoodUNK 15 L. R. Ir. 284.

Loddington v. KimeENR 1 Salk. 224.

Bebb v. PenoyreENR 11 East. 160.

Paris v. Miller 5 M. & Sel. 408.

Baker v. Wall 1 Lord Raym. 187.

Roe v. GrewENR 1 Salk. 224.

Kavanagh v. MorlandENR Kay, 16.

Morgan v. ThomasELR 9 Q. B. Div. 643.

Bowen v. LewisELR 9 App. Cas. 890.

Morgan v. ThomasELR 9 Q. B. Div. 643.

Bradley v. CartwrightELR L. R. 2 C. P. 511.

Whitelaw v. WhitelawUNK 5 L. R. Ir. 120.

Shannon v. GoodUNK 15 L. R. Ir. 284.

Roddy v. Fitzgerald 6 H. L. Cas. 823.

Jesson v. WrightENR 2 Bligh. 1.

Shelley's Case 1 Co. 93 b.

Rotheram v. RotheramUNK 13 L. R. Ir. 442, 455.

Shannon v. GoodUNK 15 L. R. Ir. 284, 307.

Montgomery v. Montgomery 3 J. & L. 49, 56.

Whitelaw v. WhitelawUNK 5 L. R. Ir. 120.

Kavanagh v. MorlandENR Kay, 16.

Roddy v. Fitzgerald 6 H. L. Cas. 823, 855.

Blackhall V. Gibson UNK 2 L. R. Ir. 49.

Hugo v. WilliamsELR L. R. 14 Eq. 224.

Webb v. PuckeyENR 5 T. R. 299.

Frank v. StovinENR 3 East. 548.

King v. BurchellENR Amb. 379.

Montgomery v. Montgomery 3 J. & L. 58.

Roddy v. Fitzgerald 6 H. L. Cas. 823.

Morgan v. ThomasELR 8 Q. B. Div. 575.

Whitelaw v. WhitelawUNK 5 L. R. Ir 120.

Rotheram v. RotheramUNK 13 L. R. Ir. 429.

Shannon v. GoodUNK 15 L. R. Ir. 284.

Bowen v. LewisELR 9 App. Cas. 890.

Whitelaw v. WhitelawUNK 5 L. R. Ir. 120.

Lees v. Moseley 1 Yo. & Coll. 589.

King v. MellingENR 1 Ventr. 225.

Shaw v. WeighENR 2 Str. 798.

Deun d. Webb v. PuckeyENR 5 T. R. 299.

Frank v. StovinENR 3 East, 548.

Hugo v. WilliamsELR L. R. 14 Eq. 224.

Doe d. Cannon v. RucastleENR 8 C. B. 876.

Jesson v. WrightENR 2 Bligh 1.

Roddy v. Fitzgerald 6 H. L. Cas. 823.

King v. Burchell Ambl. 379.

Wright v. PearsonENR 1 Eden, 119.

Marshall v. GrimeENR 28 Beav. 375.

Shannon v. GoodUNK 15 L. R. Ir. 284, 312, 313.

King v. MillingENR 1 Ventr. 225.

Roddy v. Fitzgerald 6 H. L. Cas. 872.

King v. MillingENR 1 Ventr. 225.

Manning v. Moore Alc. & Nap. 26.

Griffiths v. EvanENR 5 Beav. 241.

Williams v. WilliamsUNK 51 L. T. 779.

Montgomery v. Montgomery 3 J. & L. 49.

Morgan v. ThomasELR 9 Q. B. Div. 643.

Whitelaw v. WhitelawUNK 5 L. R. Ir. 120.

King v. MellingENR 1 Ventr. 225.

Shaw v. WeighENR 2 Str. 798; 2 Jarm. Wills, 417.

Whitelaw v. WhitelawUNK 5 L. R. Ir. 125.

Morgan v. ThomasELRELR 8 Q. B. Div. 575; 9 Q. B. Div. 644.

Bowen v. LewisELR 9 App. Cas. 905.

King v. MellingENR 1 Ventr. 225.

Will — Construction — "Issue" — Rule in Shelley's Case — Estate, whether for life or in tail.

VOL. XXI.] 'CHANCERY DIVISION. 445 by the tenant alone." The Receiver could only pay cess out of Monroe, moneys arising from these lands ; but they were derelict, and he 1888. had no such money out of which to pay the cess. In re Mamma- DON'S ESTATE. M. R. 1887. Dec. 15. Appeal. 1888. Solicitor for the county cess-collector : Mr. B. C. Jameson. Solicitors for the Receiver : Messrs. TV. V. 8j. J. Lawlor. SANDES v. 000101t Will-Construction-" Issue"-Rule in Shelley's Case-Bstate, whether for life or in tail. E., by his will, made in 1872, devised all his "right, title, and interest" in the lands of G. to his daughter M., "for her life and to her lawful begotten issue; and in the event of her leaving none," he devised his " said property" to F., if living at the time of M.'s death ; and if not, then to F.'s " eldest son lawfully begotten "; and in the event of F. " dying without leaving a son lawÂfully begotten," then he devised "said property" to the second son of S., "late of India, if he has a second son ; and if not, to his eldest son and to his heir." He also directed that whoever possessed his property should take the name of E., and that in the event of M.'s " not leaving lawful issue," she might charge the " property " to a specified amount: Held, by Porter, M.R., and by the Court of Appeal, that M. took an estate tail. ACTION by Falkiner Sandes Collis Sandes, and Maurice James Collis Sandes, an infant, by his next friend, the said F. S. C. Sandes, against Mary Gordon Cooke, to have the trusts of the will of her father, Alexander Elliott, dated the 20th December, 1872, so far as they related to the lands of Garryanvalla, in the county of Kerry, and others in the county of Limerick, carried into exeÂcution, and for a declaration that the defendant was entitled to a Feb. 13. May 10. 446 LAW REPORTS (IRELAND). [L. M. R. life estate only in such lands under the will; for an injunction; and, 1887. if necessary, to have the estate of the testator administered. SANDER cooRE. See the will set out in extenso in His Honor's judgment, infra, p. 448. The Right Hon. S. Walker, Q. C., Mr. Bewley, Q. C., and Mr. B. B. Meredith, for the plaintiffs. Serjeant Campion, Q.C., and Mr. Matthew J. Burke, for the defendant. The argument and eases cited sufficiently appear from the report of the hearing on appeal, infra, p. 460. PORTER, M. R. :- This action is brought to have the trusts of the will of AlexÂander Elliott, dated the 22nd December, 1872, so far as they reÂlated to the lands of Garryanvalla, in the county of Kerry, and Dohite and Grageen, in the county of Limerick, carried into execuÂtion, and for a declaration that the defendant Mary Gordon Cooke is entitled to a life estate only in the said. lands under the will ; for an injunction ; and, if necessary, to have the estate of the said Alexander Elliott, deceased, administered under the direction of the Court. The testator died. on the 16th March, 1873, and probate was granted to the defendant on the 20th December, 1873. Testator was at the date of his will, and at his death, seised in fee of the lands. It appears that the defendant (then Mary Elliott), on the 20th March, 1874, executed a disentailing deed, and thereby purported to disentail the lands, and to convey the same to the use of herself in fee. She afterwards married Mr. Cooke, who is since dead. There never was any issue of the marriage ; and though she may marry again, she is now upwards of 60 years of age, and the presumption is that she never will have issue. It further appears that, acting on the assumption that by means of the disentailing deed she had acquired the fee-simple, certain proÂceedings for a sale took place in the Land Commission Court VOL. XXI.] CHANCERY DIVISION. 447 between her and one of her tenants, and an order was made) by M. that Court 'on the 8th March, 1887, in the matter of the Purchase 1887. of Land (Ireland) Act, 1885, and in the matter of the estate of SANDER V. Mary Gordon Cooke, whereby, after stating that the owner ((the CooKE. defendant) had agreed to sell to John Keane part of the 1 cis of Garryanvalla, whereof the said John Keane was tenant, and that it had been agreed between the owner and the said tenant that such sale should be carried into effect by a vesting order of the Land Commissioners, it was ordered that the sale should be carried into effect by means of such vesting order, unless cause should be shown to the contrary within one month after the service of said order upon the plaintiff. The plaintiff showed cause against the order, and the defendant moved to disallow the cause. The matter came on for argument before the Land Commission Court on the 18th May and the 10th June, 1887. It was eon-tended by counsel on behalf of the plaintiff that, upon the true construction of the testator's will, the defendant was only tenant for life of the lands, and was not entitled to sell and receive the purchase-money. It was contended on behalf of the defendant, that under and by virtue of the will of the testator, and of the deed of the 20th March, 1874, the defendant was owner in fee of the lands, and as such was entitled to sell and receive the purchase-money. At the close of the arguments the Court stated that they would not give judgment upon the said application if the plaintiffs within ten days should intimate their intention of taking proceedÂings, for the purpose of having the question of the title to) the entire premises devised by the will, and the estate taken by the defendant under the said will, determined by this Court. The plaintiffs having done so, by order of the said ComÂmissioners, dated the 7th July, 1887, the proceedings in the Land Commission Court were stayed, and this action was comÂmenced. The will is stated in the statement of claim and admitted by the defendant's defence. It is in these terms :-" I will and bequeath all my right, title, and interest in the lands of Garryanvalla, in the county of Kerry, 448 LAW REPORTS (IRELAND). [L. R. I. M. B. and Dohite and Grageen, in the county of Limerick, to my daughter 1887. Mary Elliott for her life, and to her lawfully-begotten issue;' and SANDES in the event of her leaving none, I direct and bequeath my said v. CooKE. property hereinbefore mentioned to Falkiner Collis, fifth son of Stephen E. Collis of Tieraclea, if living at the time of my said daughter's death, and if not to his eldest son lawfully begotten; and in the event of the said Falkiner Collis dying without leaving a son lawfully begotten, then I direct and bequeath said property to the second son of Stephen Collis, late of India, if he has a second son, and if not to his eldest son and to his heir; and my wish is, whoever possesses my property would take the name of Elliott ; and in the event of my said daughter not leaving lawful issue, that she may charge my property by will or deed to the amount of one thousand pounds sterling, if she so thinks fit; and my wish is that my dearest beloved wife Meleora Elliott and my said daughter shall reside and occupy my dwelling-house together; but in the event of my dearest beloved wife not wishing to reside in said house, I will and bequeath...