Sweetman v Butler

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 16 May 1907
• Court: Chancery Division (Ireland)
• Docket Number: (1906. No. 1323.)
• Date: 16 May 1907

Sweetman

and

Butler.

M. R.

(1906. No. 1323.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1908.

Settlement — Construction — Marriage portion — Omission of trusts for wife — Estate by implication.

Held, that upon the true construction of the settlement as a whole, the wife, by necessary implication, was, in the events which happened, entitled to a declaration that she was absolute owner of the annuity.

Adjourned Summons.

This was an application by Mary Sweetman, widow of Walter Sweetman, to determine whether she was entitled to any and what interest in a perpetual annuity of £100 Irish, put in settlement on her marriage with Walter Sweetman by her father, Richard Butler. The facts of the case were as follows:—

By a settlement dated October 31st, 1859, and made between Walter Sweetman, of the first part, Richard Butler and Mary Butler (the plaintiff), daughter of the said Richard Butler, of the second part, Margaret Sweetman (mother of the said Walter Sweetman), of the third part, and Michael James Sweetman and Thomas Butler (trustees for the purposes thereinafter mentioned), of the fourth part, after reciting that Richard Butler was entitled under the will of his father, John Butler, to a perpetual annuity of £100 late Irish currency, charged upon the lands of Ballycarron and Grange, in the county of Tipperary, held under lease for lives renewable for ever, and that Richard Butler had, by mortgage dated April 17th, 1840, assigned the said annuity with other properties to Anthony Sayer and John Roche, to secure repayment of the sum of £2000, but which other properties were more than sufficient for the repayment of the said sum of £2000, independently of the said annuity, and that a marriage was intended to be had and solemnized between the said Walter Sweetman and Mary Butler, and that upon treaty for the said marriage it was agreed that certain lands in the county of Down, the property of the said Walter Sweetman, should be charged with a sum of £300 per annum, as a provision for the said Mary Butler in the event of her surviving her said intended husband, or other events thereinafter mentioned, and that the said Richard Butler agreed, as a marriage portion for his daughter, to settle the said annuity of £100 upon her and her said intended husband as thereinafter mentioned, reserving to himself a life estate therein, the said indenture witnessed that in consideration of the said intended marriage and of the agreement aforesaid and the assignment thereinafter made of the said annuity of £100, being the marriage portion of the said Mary Butler, and in order to make a provision for the said Mary Butler, his intended wife, and in consideration of the sum of ten shillings paid to him by the said Michael James Sweetman and Thomas Butler, the said Walter Sweetman conveyed the lands in the county of Down, thereinafter mentioned, to the said Michael Joseph Sweetman and Thomas Butler, to hold for a term of 500 years, to secure an annuity of £300 to the said Mary Butler during her life, in the event of the bankruptcy or death of the said Walter Sweetman, and subject thereto to the use of the said Walter Sweetman in fee-simple.

The said indenture further witnessed that the said Richard Butler, for and in consideration of the agreement aforesaid, and of the sum of ten shillings paid by the said Michael James Sweetman and Thomas Butler, granted to the said Michael James Sweetman and Thomas Butler, their executors, administrators, and assigns, the said annuity of £100 late Irish currency, equivalent to the sum of £92 6s. 2d. present currency, and charged upon the therein before mentioned lands of Ballycarron and Grange in the said county, to hold and receive the same unto the said Michael James Sweetman and Thomas Butler, their executors, administrators, and assigns for ever, upon trust to permit the said Richard Butler and his assigns to receive the said annuity during his life, and after his decease then upon trust to permit and suffer the said Walter Sweetman and his assigns to take and receive the said annuity during the joint lives of the said Walter Sweetman and Mary Butler, and after the decease of the said Mary Butler in the lifetime of the said Walter Sweetman, and that there should be children or a child living issue of the said marriage, then upon trust to convey the said annuity to the said Walter Sweetman, his heirs and assigns absolutely; but in the event of the death of the said Mary Butler in the lifetime of the said Walter Sweetman, and that there should be no children, grand-children, or other issue of the said intended marriage then living, upon trust for the use of the said Walter Sweetman for the term of his natural life, and after his decease upon trust for such person, one or more of her own family, as the said Mary Butler should notwithstanding her coverture by her last will appoint; and on failure of such appointment to and for the use of the said Richard Butler, his heirs and assigns, for ever.

The settlement contained a covenant by Richard Butler to discharge the mortgage debt of £2000, a provision that each trustee should only be answerable for his own acts, a covenant for further assurance by Walter Sweetman, and a power of appointment of new trustees. There were no trusts of the annuity declared in the event which happened, namely, of Walter Sweetman predeceasing Mary Butler, and leaving children, nor was there any power given to him or her to appoint it to the children of the marriage.

By an indenture of July 9th, 1883, the annuity was released from the mortgage of £2000. Walter Sweetman died on the 24th June, 1905, leaving the plaintiff, Mary Sweetman, and four children surviving, namely, the defendants, Walter Sweetman, Michael James Sweetman, J. F. Sweetman, and Margaret G. Sweetman, having made his will, dated April 15th, 1901, whereby he left the said annuity to his son Michael James Sweetman, in the event of his wife dying before him without having made any will, declaring that under such circumstances it would be in his power to devise it; and probate of his will was granted on July 19th, 1905, to his son, Michael James Sweetman, one of the executors therein named. Richard Butler died on March 11th, 1870, having made his will, dated August 30th, 1867, and thereby, after bequeathing certain cash, bills, bonds, and notes, arrears of rent, cattle, farming stock, and other chattels, he devised and bequeathed the residue of his real and personal estate to his son-in-law the said Walter Sweetman, upon trust to raise thereout by sale, mortgage, or otherwise as he should think fit, a sum of £1500 for each of his daughters, and until payment of the same to pay his said daughters interest on the same at the rate of 5 per cent. per annum from his decease, and subject thereto in trust for his three sons, Richard, Thomas, and William, their heirs, executors, administrators, and assigns, as tenants in common, and not as joint tenants. The said will was proved on May 20th, 1870, by the said Thomas Butler, one of the executors in the will named.

The said Richard Butler (one of the...