The Estate of Frances Mary Power

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 18 December 1906
• Court: Chancery Division (Ireland)
• Date: 18 December 1906

In the Matter of the Estate of Frances Mary Power.

Wylie, 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.

1907.

Marriage settlement — Agreement to settle after-acquired property “not herein-before settled” — Bonus — Irish Land Act, 1903 (3 Edw. 7, c. 37), s. 48 — Irish Land Act, 1904 (4 Edw. 7, c. 34), s. 3.

Held, that the percentage was payable to F. M. P., and was not captured by the clause in question.

Question arising on allocation as to whether a clause in the vendor's marriage settlement, whereby it was agreed and declared that all real and personal property (if any) “not hereinbefore settled” to which the vendor might become entitled during coverture, should be brought into settlement, captured the percentage payable in pursuance of the provisions of sect. 48 of the Irish Land Act, 1903, and sect. 3 of the Irish Land Act, 1904? The facts appear sufficiently from the judgment.

H. Morgan Byrne, for E. Lloyd and another, mortgagees of the percentage, cited In re Ely's Estate (1), In re Lady Annaly's Estate (2), In re Lady Annaly's Trusts (3), and Churchill v. Denny (4).

G. F. Brunskill, for the trustees of the settlement.

By marriage settlement certain funds, consisting of Government stock were (inter alia) settled, upon trust to pay the income to F. M. P. (the wife) for life, then to J. P. (the husband) for life, with limitations over. The settlement contained a power to the trustees to invest the trust funds in the purchase of land, and to sell again and re-invest, the rents and profits to be applied in the same manner as the income from the trust funds; and also contained this clause:— “It is hereby agreed and declared that the real and personal property (if any) not hereinbefore settled, to which the said F.M.P. at the time of the said intended marriage, or she, or the said J. P. in her right, at any time during her now intended coverture, shall be or become entitled, whether in possession, reversion, or otherwise” (except certain specified articles of jewellery, &c.), “shall … be assured and transferred … to the trustees, … to be held upon the same trusts as the settled funds.”

In pursuance of the power vested in them, the trustees sold portion of the settled funds, and invested the proceeds in the purchase of certain lands, which were subsequently sold by F. M. P. under the Irish Land Act, 1903. On a question arising as to whether the percentage payable under section 48 of the said Act and section 3 of the Irish Land Act, 1904, was captured by the above clause in the settlement:—

Wylie, J.:—

A nice and rather difficult question has been raised in this case as to who is entitled to receive the bonus. It is admitted that the vendor, who is tenant for life of the lands sold, is entitled to the bonus, unless it is captured by a covenant in her marriage settlement. At the time of her marriage the vendor was entitled, under her father's will, to his residuary estate, which consisted principally of a sum of £11,755 of Government New Three percent. stock, and by her marriage settlement, dated the 2nd June, 1879, that sum, together with all other property to which she was entitled under her father's will, was vested in trustees, upon trust to pay the income to the vendor for life, then to her husband for life, and then to the issue of the marriage as therein provided. The settlement contained a power to the trustees to invest the...