Tennison v Moore

• Jurisdiction: Ireland
• Judgment Date: 16 April 1850
• Date: 16 April 1850
• Court: Rolls Court (Ireland)

Rolls.

TENNISON

and

MOORE.

Savage v. CarrollUNK 2 Ball & B. 265.

Broadmead v. Wood 1 Br. C. C. 77.

Lord Teynham v. Webb 2 Ves. 198.

Hall v. Hewer Ambl. 203.

Mathews v. Paul 3 Swanst. 328.

Peacock v. ParesENR 2 Keen, 689.

Lady Lincoln v. Pelham 10 Ves. 167.

Beale v. BealeENR 1 P. Wms. 246.

Butler v. DuncombENRENR 1 P. Wms. 448; S. C. 2 Vern. 760.

Heneage v. HunlokeENR 2 Atk. 457.

Duke v. Doidge 2 Ves. 203, note.

Gray v. Lord LimerickUNK 12 Jur. 817.

Spencer v. SpencerENR 8 Sim. 87.

Bowles v. Bowles 10 Ves. 176.

Chadwick and wife v. DolemanENR 2 Vern. 527.

Scarisbrick v. Lord SkelmersdaleENR 4 Y. & C. Ex. 113.

Peacocke v. ParesENR 2 Keen, 689.

Lord Teynham v. Webb, 2 Ves. 210.

Hall v. Hewer Ambl. 204.

424 CASES IN EQUITY. 1850. Rolls. TENNISON v. MOORE. (In the Rolls.) Jan. 22, 24. April 16. By a settle- AN order was made in this cause on the 5th of March 1849, whereby ment executed in 1800, OD his it was referred to the Master to inquire and report who were entitled first marriage, seised to the sum of £3444. 1 s. 11 d., Government £3,1 per cent. stock in A was of an estate for the Bank of Ireland, to the credit of this cause, and in what right ; life in certain lands, with re- and that the Master should be at liberty to state all special circum mainder to his first and other stances in his report. sons in tail, with power to The Master made his report under the said order on the 27th charge the lands with of November 1809, and the case was brought before the Court £2000 for such purposes as he upon objections taken to the Master's report on behalf of William should think fit, and with Noble and Louisa Noble, his wife. The facts of the case, were as £1000 for his child or chil- follows :- dren by any after-taken On the 25th of September 1800, a marriage settlement was exe- wife. He also cuted marriage , previously to and in contemplation of the marriag of Samuel became enti- tied by subse Moore the elder, with Jane Burrowes his first wife, which was quent events to two sums of £500 and £1000, charged on the lands by the same deed. There was no issue of the first marriage. By a settlement, executed in 1809 on his second marriage, he charged the lands with £2000 and £1000 under the powers, and assigned the sums of £2000, £500 and £1000, to trustees in trust, if there should be two or more younger children or daughters, to be divided amongst them, after the death of their father and mother, as he should by deed or will appoint, and in default of appointment equally, and if there should be no issue of the marriage or issue one only son, or there should be issue one or more daughter or daughters, or one or more younger children who should die before the time of payment of the portions, then as to the £2000, £1000 and £500 in trust for A, his executors, &c. There was issue of the second marriage, two sons and a daughter (B, C and D). The eldest son B joined A in suffering a recovery of the estate, and by a deed of 1834 it was conveyed subject to a term to the use of A for life, remainder to the use of B for life, remainder to the first and other sons of B in tail, remainder to C the second son for life, remainder to the first and other sons of C in tail, remainder over. The trusts of the term were to raise by sale or mortgage £12,500 to be disposed of as A and B or thsurvivor should appoint, which was raised. A appointed £250 of the sums of £500, £1000 and £2000 to D, and the residue to C, and afterwards B the eldest son died without issue, whereupon C became entitled subject to the charge of £12,500 to a life estate in part of the lands, the remainder having been sold for payment of incumbrances. Held, that the appointment of the £500, £1000 and £2000 did not become void by C becoming an elder son entitled to the lands under the deed of 1834. Spencer v. Spencer (8 Sim.) and Peacocke v. Pares (2 Keen) observed on. CASES IN EQUITY. 425 nude by and between Gerard Moore and Mary his wife, and Samuel Moore the elder, who was their eldest son, of the first part, and several other parties in the report mentioned, of the second, third, fourth, fifth and sixth parts. By that deed the said Gerard Moore and Samuel Moore the elder, according to their respective rights and estates, duly conveyed to the trustees and their heirs the manor of Moynehall, in the county of Cavan, and certain lands in the counties of Louth and Meath, upon trust to permit the said Gerard Moore to receive the rents thereof for his life, with remainder to the use of the said Samuel the elder for life, with remainder to other trustees for five hundred years, upon the trusts therein mentioned and subject to such term, and to certain annuities, to the use of the first and other sons of the said Samuel Moore successively in tail male ; and it was by the said indenture agreed that it should be lawful for the said Gerard Moore to charge the said lands with a sum which, together with a sum of £2000 received with the said Jane Burrowes, should make up a sum not exceeding £3000, for the payment of his debts, the residue to be applied as he should think proper ; and further, that it should be lawful for the said Gerard Moore to charge and incumber the said lands with a sum not exceeding £3000, as a portion for his younger son George Moore ; and in default of the exercise of such power that the said lands should stand charged with the said sum of £3000 for the said George Moore, to be paid on the death of the said Gerard Moore ; and the deed further contained a power to Samuel Moore the elder to charge the said lands with £2000, to be applied to such purposes as he should think fit, and also to charge the lands with £1000 for the child or children of the said Samuel by any after-taken wife. The marriage was duly solemnized, and the said Jane Moore, otherwise Burrowes, afterwards died without issue. On the 16th of June 1809, a settlement was executed, on the marriage of the said Samuel Moore the elder with his second wife Frances Nesbitt. By that deed, which was executed by the said Samuel Moore the elder of the first part, and the other parties in the report mentioned of the second, third and fourth parts, after reciting the provisions of the settlement of 1800, and that the said Samuel the 426 CASES IN EQUITY. elder was then seised of an estate for his life in the said lands, with remainder to his first and other sons successively in tail male ; and reciting that the said Gerard Moore had charged the said lands with a sum of £500, portion of the sum of £3000, which the said Gerard Moore was empowered to charge for payment of his debts and for his own purposes; and reciting that the said sum of £500 had become vested in a trustee for the said Samuel Moore the elder, for his own use and benefit ; and reciting that the said Gerard Moore had died without making any appointment in favour of the said George Moore, and that the said George Moore had assigned to a trustee for the said Samuel Moore the elder the sum of £1000, being part of the sum -of £3000 charged in default of appointÂment on the said lands, as the portion of the said George Moore ; and reciting the power vested in the said Samuel Moore the elder to charge £2000 for his own use and benefit, and also with the sum of £1000 for the children of his then intended marriage :-the said Samuel Moore the elder did charge the said two last mentioned sums of £2000 and £1000 on the said lands, and did assign the said sum of £2000, as also the sums of £500 and £1000, so vested in a trustee for the said Samuel the elder as aforesaid, to Thomas Tennison and Anthony Adams, upon trust to pay the interest thereof to the said Samuel the elder for his life, and after his decease to pay the interest to the said Frances Nesbitt for her life, and after the decease of the survivor, as to the principal of the said sums of £500, £2000 and £1000, and also as to the said sum of £1000 charged for the children of the said second marriage, the said several sums were vested in the said trustees as a portion or portions for all and every the younger child or children, daughter and daughters of the said intended marÂriage ; the same, in case there should be but one such younger child, being a son, or one such daughter, to be paid to one such younger son, or one such daughter, for his or her portion : " and in trust, if there should be two or more such younger children or daughters, to be divided amongst them in such shares and proportions, and be paid and payable at such time and times, after the death of the said Frances, as the said Samuel, by any writing or writings, under his hand and seal, attested by two or more credible witnesses, or by his CASES IN EQUITY. 427 last will and testament in writing, to be by him signed and published in the presence of three credible witnesses, shall direct, limit and appoint ; and in default of such direction and appointment, then and in that case the said sums to be divided equally amongst them share and share alike ; the said portion or portions to be payable in manner following-that is to say, from and after the death of the survivor of them the said Samuel and the said Frances, to such of them as should be a son or sons at his or their respective age or ages of twenty-one years, and to such of them as should be a daughÂter or daughters at his or their respective ages of twenty-one years or day or days of marriage, whichever should first happen, if such respective times of payment shall happen after the death of the surÂvivor of them the said Samuel Moore and...