The Estate of Baron Keane, Owner and Petitioner; Continued in the Name of Henry John William Farrell, as Owner; and Further Continued in the Name of Henry John William Farrell Palliser, as Owner

• Jurisdiction: Ireland
• Judgment Date: 03 March 1903
• Date: 03 March 1903
• Court: Chancery Division (Ireland)

In the Matter of the Estate of Baron Keane Owner and Petitioner; continued in the name of Henry John William Farrell, as Owner; and further continued in the name of Henry John William Farrell Palliser as Owner.

Ross, J.

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.

1903.

Will — Construction — Estate tail — Rule in Shelley's Case.

A devised fee-simple lands in trust for B and his assigns for the term of his natural life, and after his decease to the use of B's second son C and his assigns for the term of his natural life and his issue male in succession, so that every such son might take an estate for life, with remainder to his first and every subsequent son successively, according to seniority, in tail male. The will contained a proviso that C and his issue should take the name of P. when he or they became entitled, and in case of refusal the estate or estates limited for the life of such person so refusing should cease, and the subsequent limitations be accelerated.? died in 1882. C died in 1889, leaving two sons, D and E, who were both living at the death of A. D executed a disentailing deed:—

Held, applying the rule in Shelley'sCase (1 Rep. 93b), that C took an estate tail.

Motion on behalf of the owner for an order declaring that upon the true construction of the will of Mary Jane Keane, deceased, the said Henry John William Farrell Palliser became entitled, as tenant in tail male, to the surplus proceeds of the sale of that part of the estate in this matter which had been sold, and that by virtue of his disentailing deed, dated the 5th of November, 1902, and in the events which had happened he was absolutely entitled to the surplus funds.

Mary Jane Keane, wife of John Manly Arbuthnot Keane, commonly called the Hon. John Manly Arbuthnot Keane, was at the time of her will, and of her death, seized in fee-simple in possession, for her sole and separate use, of certain hereditaments in the Co. Wexford called the Castletown, Portobello, and Drillington estates. She made her will, dated the 28th December, 1868, the material features of which are as follows:—“I give, devise, and bequeath all my estates of Castletown, Portobello, and Drillington, and all other estates in fee-simple, freehold, or leasehold, unto Major Farrell, late of the Royal Artillery, and Robert Cornwall, of Rutland-square, Dublin, and the survivor of them, and the heirs, executors, and administrators of such survivor, upon trust for the use of my dear husband and his assigns during his natural life without impeachment of waste; and in case he should marry again and have issue of such marriage, then, from and after his decease, for the use of his first and every other son and his issue male in succession, so that every elder son and his issue male may take an estate for his life, with remainder to his first and every subsequent son successively according to seniority in tail male; and on failure of such issue, then upon trust for my dear and early friend, the said Major Farrell, late of the Royal Artillery, and his assigns, for the term of his natural life; and from and after his decease or in case of his decease during the lifetime of my said husband or before the failure of the limitations aforesaid, then upon such failure to the use of his second son Henry Farrell, also of the Royal Artillery, and his assigns, for the term of his natural life, and his issue male in succession, so that every such son may take an estate for life, with remainder to his first and every subsequent son successively according to seniority in tail male … Provided always that the said Henry Farrell and his issue male, when he shall become entitled as beneficial tenant for life or in tail in possession under the limitations herein contained, shall as to every such tenant for life or in tail obtain a license from the Crown to assume and use the surname of Palliser either alone or in addition to his own name, so that the name of Palliser shall be the last and principal name, and thenceforth use the said surname; and in case of neglect or refusal to comply with the terms of this proviso, the estate or estates hereby limited for the life of such person so refusing or neglecting shall cease, and the subsequent limitations be accelerated.”

The testatrix died on the 24th of October, 1881, without having revoked or altered her will, leaving her husband surviving. He succeeded to the title of Baron Keane in the year 1882, and afterwards intermarried with Francina Morrell; there was no issue of the marriage.

Major John Sidney Farrell (in the will called Major Farrell) died on the 18th of December, 1882, in the lifetime of Baron Keane. His second son Henry Farrell died on the 2nd of July, 1889, also in the lifetime of Baron Keane, leaving two sons surviving, viz. Henry John William Farrell, now Henry John William Farrell Palliser, the owner in the title hereof, born on the 25th December, 1867, and Sidney Arthur Chamberlayne Farrell, born on the 25th of March, 1872. Henry Farrell executed no disentailing deed. The petition herein was filed in the year 1889 by Baron Keane. He died on the 27th of November, 1901, whereupon the owner succeeded under the terms of the will. He obtained a Royal License on the 20th of October, 1902, to assume the name of Palliser in addition to that of Farrell, in accordance with the proviso in the will. He executed a disentailing deed on the 5th of November, 1902, and married on the 8th of December, 1902. All the charges and incumbrances affecting the estate had been discharged out of the proceeds of the sale of the lands, save certain in respect of which sums were retained, and a considerable surplus was in Court. Sidney Lyon Geaves and George Henry Bowles were appointed trustees of the will, by deed, on the 12th of December, 1902.

Matheson, K.C. (with him Poole), for Major Farrell Palliser, the owner:—

The rule in Shelley'sCase (1) applies, and as Major Farrell Palliser has executed a disentailing deed he is now owner in fee. Under the words in the will an estate tail was created by the words of the devise, “to the use of his second son Henry Farrell … and his assigns for the term of his natural life, and his issue male in succession”; and all the subsequent limitations are surplusage. We rely on the dictum of Lord Davey in Van Grutten v. Foxwell (2), at page 684:—

“In my opinion the rule in Shelley'sCase is a rule of law, and not a mere rule of construction, i.e. one laid down for the purpose of giving effect to the testator's expressed or presumed intention. The rule is this: that whenever an estate for life is given to the ancestor or propositus, and a subsequent gift is made to take effect after his death, in

such terms as to embrace, according to the ordinary principles of construction, the whole series of his heirs, or heirs of his body, or heirs male of his body, or whole inheritable issue

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