Tevlin v Gilseman

JurisdictionIreland
Judgment Date11 December 1901
Docket Number(1901. No. 110.)
Date11 December 1901
CourtCourt of Appeal (Ireland)
Tevlin
and
Gilsenan (1).

Appeal.

(1901. No. 110.)

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.

1902.

Mortgage — Judgment mortgage — Judgment against one of the next-of-kin of an intestate — Registration as mortgage against interest in intestate's chattel real — 13 & 14 Vict. c. 29.

A judgment debtor, being one of the next-of-kin of a deceased intestate, has an interest in a chattel real belonging to the intestate of such a specific character that it can be affected by the registration of the judgment as a mortgage against it.

[The following cases were cited: Hamill v. Murphy (2); Carolan and Scott's Contract (3); Tench v. Glennon (4); Cooper v. Cooper (5); Holland v. Chambers (6); Gormley v. Buchanan (7) Sweeney v. Gallagher (8); Turner v. Rennoldson (9); Mullane v. Ahern (10); Rossborough v. M'Neill (11); In re Blake's Estate (12); M'Auley v. Clarendon (13); Whitworth v. Gaugain (14); Webb v. Jones(1); Bradley v. Flood (2); Herbert v. Rea (3); Caulfield v. Walshe (4); In re Rae's Estate (5); Anglo-Italian Bank v. Davies (6); Irish Land Commission v. Davies (7); Eyre v. M'Dowell (8); Dunster v. Lord Glengall (9); Reidy v. Pierce (10); Quirke's Estate (11); Scanlan's Estate (12); Thomas v. Cross (13); Lord Sudeley v. Attorney-General (14); Sugden's Vendors and Purchasers (14th Ed.), pp. 522–525.]

Appeal by the plaintiff against the decision of the Right Hon. the Vice-Chancellor, pronounced on June 4th, 1901, reported [1901] 1 I. R. 429, where the facts are stated.

The case having been re-argued by one counsel on each side on this date,

Ignatius T. O'Brien, K.C., and W. H. Brown (with Them J. Morgan Byrne), For The Appellant.

The Right Hon. C. H. Hemphill, K.C., and P. A. O'C. White, for the respondents.

Lord O'Brien, L.C.J.:—

The question in this case is, whether one of the next-of-kin of a deceased person has an interest in a chattel real belonging to the intestate of such a specific character that it can be affected by the registration of a judgment as a mortgage against it. In Herbert v. Rea (3) it was decided that one of the next-of-kin of a deceased tenant, notwithstanding that he was a defendant in the ejectment proceedings, had not “a specific interest” in a chattel real which had been evicted for non-payment of rent, so as to enable him to redeem it on payment of the rent and costs. That case created a great discussion at the time it was decided amongst the members of the Bar. The Lord Chief Baron gave the reasons which led to the judgment of the Court, which was composed of Baron Fitzgerald and Baron Dowse, as well as of the Chief Baron. The actual question in this case came before the learned Vice-Chancellor on a previous occasion in Re Carolan and Scott's Contract (15), and he then took the view adopted by the Chief Baron in Herbert v. Rea (3), that the next-of-kin had not a specific interest in the chattel real of the intestate, and he held, therefore, that a judgment mortgage could not be validly registered against the interest

of a next-of-kin entitled to a share of a chattel real. The very same question arose on the hearing of a civil bill appeal before the Lord Chief Baron in Tench v. Glennon (1). The learned Judge took time to consider his decision, and notwithstanding his own earlier judgment in Herbert v. Rea (2), he held that a next-of-kin has a specific interest in the chattel real of an intestate, and therefore that a judgment mortgage can be validly registered against such an interest. The Lord Chief Baron had before him the report of the Vice-Chancellor's judgment in Re Carolan and Scott's Contract (3), but he declined to follow it on the ground that it was distinctly opposed to the case of Cooper v. Cooper (4) in the House of Lords, and to the registration cases in this country, in which, following Cooper v. Cooper (4), this Court held that the next-of-kin of a deceased tenant who had died intestate was entitled to a specific interest in his holding. Lastly, the question arose—again before the Vice-Chancellor—in the present case. The learned Judge followed his previous decision in Re Carolan and Scott's Contract (3), holding that Cooper v. Cooper (4) was distinguishable, and laying down in so many words that a next-of-kin has not a specific interest in an intestate's chattel real—that all his interest is a mere right to have the estate administered and to get what may come to him as his share. This decision is now on appeal before us.

It is essential for us, first, to see what was decided by Cooper v. Cooper (4). A testator directed certain real estate to be converted and to be held in trust as personal estate, subject to his wife's life interest therein, for his children in such shares as his wife should by deed or will before the children attained twenty-five appoint. The testator left three children, and by a deed executed before any of the children attained twenty-five the widow appointed the property in equal shares amongst the three children, reserving to herself a power of revocation. One of the children married, had two children, and then died intestate, leaving his two children his next-of-kin. The widow of the testator subsequently to the date of the deed of appointment made a will with several codicils thereto, the effect of which was to dispose of the converted real estate in

a different manner from that adopted in the deed of appointment, and also to confer benefits on the children of the deceased son. It was decided, in an action brought to try the question, that the will which did not take effect until the death of the testatrix, which occurred after the prescribed period during which she had power to appoint, could not operate as an appointment under the power, and that therefore the converted real estate belonged in thirds to the two surviving children of the testator and the two children next-of-kin of the deceased child. The child of the testator, in whose favour the property was appointed by the will, then brought a suit to put the other child and the children of his deceased brother to elect between their claims under the deed of appointment and under the will and codicils of the testator's widow. The question which the House of Lords had to decide was whether the two children, the next-of-kin of the deceased brother, were bound thus to elect. The argument of the case on behalf of these two children, who were the appellants, is very fully given in the report, and is most important as showing what was decided in the case. Counsel for the appellants argued that (p. 57):—

“The interest of a next-of-kin in the personal estate of an intestate is an undefined and intangible interest: it is a right merely to have the estate converted into money, in that respect resembling that of a residuary legatee, as to whom, in Lady Cavan v. Pultney (2 Ves. Jun. 544), it is said ‘that a residuary legatee is entitled only to what remains after the debts are discharged.’ It is not something definite and ascertained which can be set against a clear gift of a specific benefit under a will.”

Nothing can be clearer than that. It is the very argument which has been adopted by the Vice-Chancellor in the present case in his judgment, and which has been so forcibly put forward on behalf of the respondent by Mr. Hemphill. Now see how the case was presented on the other side. For the respondents it was argued (p. 62):—

“The interest of the appellants, in respect of their claim as next-of-kin of their father, to share in the proceeds of the sale of Pain's Hill Estate, is a clear, definite, and tangible interest. It is not properly described as a contingent interest coming to the next-of-kin only after other interests and other rights have been satisfied, and dependent therefore on them. The title to it vested in them absolutely on the death of their father, though the profitable enjoyment of it might be postponed. It came to them by operation of law as directly and distinctly as it could have come under the plain and absolute words of a will. They stood in the same situation as residuary legatees, and as these may, in fact, gain nothing, because debts may absorb the whole estate, so next-of-kin may equally and from the same cause obtain no benefit. But their legal title to the property is the same.”

Thus we have the arguments on both sides presented almost in the same way as counsel for appellant and respondent have put forward their respective contentions before us. The case was at argument on three days, and on the third day, at the conclusion of the appellants’ reply, the House of Lords gave its decision. The Lord Chancellor (Lord Cairns) states that the very point at issue had been the subject of an argument of an exhaustive character. He says (p. 64):—

“My Lords, it was very much pressed on your Lordships, in the extremely able argument we heard at the Bar from the counsel for the appellants, that the interest of a next-of-kin in the estate of an intestate is an undefined and intangible interest; that it is a right merely to have the estate converted into money, and to receive a payment in money after the debts and expenses are discharged. My Lords, no doubt the right of a next-of-kin is a right which can only be asserted by calling upon the administrator to perform his duty, and the performance of the duty of the administrator may require the conversion of the estate into money for the purpose of paying debts and legacies. But I apprehend that the rule of law, or the rule laid down by the statute, which requires the conversion of an intestate's estate into money, is a rule introduced simply for the benefit of creditors, and for the facility of division. For the benefit of creditors, and for the facility of division amongst the next-of-kin, the estate is to be turned into money; but as regards substantial proprietorship, the right of the next-of-kin...

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