Sherwin v Kenny

• Jurisdiction: Ireland
• Judgment Date: 09 November 1864
• Date: 09 November 1864
• Court: Rolls Court (Ireland)

SHERWIN

and

KENNY.

Rolls..

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

Jordan v. AdamsENR 7 Jur., N. S. 973; S. C., 9 C. B., N. S. 483.

Moneypenny v. DeringENR 7 Hare, 568.

Toller v. Atwood 15 Q. B. 929.

Holland v. AlsopENR 29 Beav. 500.

Wilmot v. Wilmot 8 Ves. 10.

In re keep's WillENR 32 Beav. 122.

In re Tharp's Estate 33 Law Jour., Ch. 59.

Moriarty v. GreyIR 12 Ir. Com. Law Rep. 129.

Kavanagh's TrustUNK 13 Ir. Ch. Rep. 120.

Black v. CampbellUNK 14 Ir. Ch. Rep. 92.

Shapland v. Smith 1 Br. C. C. 74.

Fitzgerald v. Roddy Ubi supra.

Hockley v. MawbeyENR 1 Ves.jun. 152.

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

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

Kavanagh v. MorlandENR 1 Kay, 16.

Lees v. MoselyENR 1 Y. & C. Exch. 595.

Ranelagh v. RanelaghENR 12 Beav. 200.

Campbell v. HardingENR 2 Russ. & M. 405.

Toller v. Atwood 15 Q. B. 909.

Greenwood v. VerdonENR 1 Kay & J. 74.

Sheers v. JefferyENR 7 T. R. 589.

138 CHANCERY REPORTS. 1864. Rolls. SHERWIN v. KENNY. July 1, 2. Nov. 9. .A testator, THOMAS LOGAN, being seised for lives renewable for ever of being seised of lands under Cullen's Farm, under two leases of the 25th of April 1812 and leases for lives 31st of December 1813, made his will on the 18th of February renewable for ever, in 1824, 1824, as follows :- devised all his freehold leases "I desire that all my just debts and funeral expenses shall be and interest whatsoever to fully paid. I leave, devise and bequeath all my freehold leases trustees, and the heirs of the and interests whatsoever, and whatever other leasehold and chattel survivor of trust in trust, interests I may die possessed of, and the lands, tenements and them, after payment of the head premises held by me by virtue thereof, to Philip Moore of, &c., and rents, to apply theclear yearly Thomas Fay of, &c., and to the survivor of them, his heirs, rents to and amongst his executors and administrators, in trust for the uses, intents and three dough- purposes hereinafter mentioned, that is to say-in trust, after ters during their respective lives, in equal shares and proportions, for their sole and separate use ; and in case any or either of his said daughters should happen to die leaving lawful issue, then in trust as to the share and proportion of such daughter so dying, to and for the use of such issue, as she should by deed or will appoint, and in default of such appointment to the use of such issue equally, share and share alike ; and if any of his daughters died without issue, he directed that her share of the rents should go to and be paid to the survivors or survivor of them for the increase of her and their respective shares, to their separate use, and to go to their lawful issue, subject to the like power of appointment among such issue; and in case of the death of all his daughters without leaving lawful issue, then in trust to pay the rents to his nephew during his life, and after the death of his nephew, in case he should happen to die leaving lawful issue, in trust, as to one-half of his freehold and leasehold interests, for the use of such issue as he should appoint ; and in default of appointment, equally and as to the remaining half of his freehold and leasehold interests, to the use of the children of his sister, in equal shares, and to their lawful issue ; and in case his nephew should happen to die without issue, then as to the whole of his freehold and leasehold interests to the use of the said children of his sister, in equal shares, and to their lawful issue ; and in case they should be then dead, then as to the whole, in trust for the issue of his nephew ; and in case of the deaths of his nephew and the children of his sister without issue, in trust to assign over the said freehold and leasehold interests to his own right heirs ; and a power was given to the trustees to lease from time to time as they should remain seised and possessed by virtue of the trusts in the. will contained, with the consent of the person or persons then entitled. Held, -First, that the legal estate was devised to the trustees during the existence of the entire series oflimitations. Secondly-That the daughters of the testator took equitable estates in quasi tail in their respective shares. CHANCERY REPORTS. 139 payment of the said head rents thereof, to apply the clear yearly rents, issues and other profits of my said freehold and leasehold properties to and amongst my three daughters, Catherine Logan, Eliza Logan, and Mary Logan, during their respective lives, in equal shares and proportions, for their sole and separate use, and to be at their disposal, notwithstanding any coverture or covertures, and without the interference, control or intermeddiing of any husband or husbands with whom they or either of them may at any time intermarry, and not to be subject to any debt or debts which he or they may at any time owe or contract; but to be paid and payable to my said daughters respectively upon her and their own separate receipt and receipts, as if they were femes sole and unmarried ; and in case any or either of my said daughters shall happen to die leaving lawful issue, then in trust as to the share and proportion of such daughter so dying, to and for the use of such issue, in such shares and proportions as she shall by deed in her lifetime, or by her last will and testament in writing, duly attested, notwithstanding any coverture, direct and appoint ; and in default of such direction and appointment, then to the use of such issue equally, share and share alike. And in case any or either of my daughters shall happen to die without issue, it is then my will and intention, and I hereby devise and direct that her share and proportion of the said rents, issues and profits shall go to and be paid to and received by the survivors or survivor of them for the increase of her and their respective share and shares hereby devised to them ; such increase by survivorship to be paid to such survivors or survivor in like manner as her and their other share or shares, for their or her life or lives as femes sole, notwithstanding any coverture, and to go to the use of their lawful issue, subject to the like power of appointment amongst such issue, and subject to the like equal distribution thereof amongst such issue, in default of such appointment. And in case of the death of all my said daughters, without leaving lawful issue, then in trust to pay the said yearly rents, issues and profits to my said nephew James Carter during his life ; and from and after the decease of the said James Carter, in case he shall happen 140 CHANCERY REPORTS. " 1864. to die leaving lawful issue, then in trust as to one-half of my said Rolls. freehold and leasehold interests, and the yearly rents, issues and SHERWIN profits thereof, to and for the use of such issue, in such shares v. KENNY. and proportions as the said James Carter shall by deed in his life Statement. time, or by his last will and testament, duly attested, direct or appoint : and in default of such appointment, then to the use of such issue equally, share and share alike. And as to the remaining half of the said freehold and leasehold interests, and the rents, issues and profits thereof, in trust to the use of the children of my sister Kenny, Kenny, widow of the late Martin Kenny, merchant, to wit-Martin Kenny, Anne Kenny, Jane Kenny, and Catherine Kenny, in equal shares and proportions, and to their lawful issue. And in case the said James Carter shall happen to die without issue, then as to the whole of my said freehold and leasehold interests, and the issues and profits thereof, in trust to the use of the said children of my said sister Anne Kenny, in equal shares and proportions, and to their lawful issue; and in case the said children of my said sister Anne Kenny shall be then dead, without leaving issue, then as to the whole of my said freehold and leasehold interests, and the rents, issues and profits thereof, in trust to and for the issue of the said James Carter, in like manner and subject to the like appointment and distribution as I have before provided respecting the one-half thereof. And in ease of the death of the said James Carter without issue, and also of the death of the said Martin, Anne, Jane and Catherine Kenny without issue, then in trust to assign over the said freehold and leasehold interests to my own right heirs, executors and administrators. Provided always that it shall and may be lawful to and for the said Philip Moore and Thomas Fay, and the survivor of them, his heirs, executors and administrators, from time to time while they shall remain seised and possessed by virtue of the trusts herein contained, with the consent nevertheless in writing of such person and persons as by virtue of this my will shall then be entitled to the rents, issues and profits thereof, or her guardian or guardians, to demise or let any of the lands, tenements and premises hereby devised in trust as aforesaid, for any term for lives, with or without covenant for CHANCERY REPORTS. 141 renewal, or for any number of years, as my said trustees or the survivor, and the heirs, executors or administrators of such survivor of them, shall think proper, in possession and not in reversion, at the best improved rent, without taking any greater fine for the same than what shall amount to two years of the rent reserved, proÂvided the same shall be by lease in writing, and that the tenant or tenants do seal and execute a counterpart or counterparts thereof." The testator died in the year 1824. Catherine Logan married Philip Dooley in July 1823, and had issue one son Mathew Dooley. She died on the 18th of September 1830, without exercising her power of appointment, leaving her husband Philip Dooley and her son Mathew Dooley surviving her. Mathew Dooley died on the 7th of February 1851 ; Philip Dooley died on the 8th of March 1853, leaving Joseph Dooley his son, and the brother of the...