The Estate of George W. Bennett, Owner; Munster and Leinster Bank, Ltd, Petitioners

• Jurisdiction: Ireland
• Judge: Kenny, J.
• Judgment Date: 15 February 1898
• Court: Chancery Division (Ireland)
• Date: 15 February 1898

In the Matter of the Estate of George W. Bennett

Owner

and

Munster and Leinster Bank Limited

Petitioners.

Kenny, J.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1898.

Voluntary settlement — Construction of deed — Rentcharge, or half rents and profits — Executed trust — Equitable estate in fee — Words of limitation.

By a voluntary settlement, executed in 1870, lands held in fee-farm were conveyed to trustees and their heirs in trust, after the death of the settlor, to pay his wife out of the rents and profits a clear annuity of £100 for her life, and to apply the balance for the maintenance of the settlor's children during their minority. In case the settlor's eldest son T. should die or marry without prescribed consent before attaining twenty-one years, his share of the lands was to go to the younger son G.; and it was provided that after the death of the settlor's wife “her £100 a-year, or half the rents and profits of” the lands should be paid to G. On G.'s death, or marriage without consent under twenty-one, his “share and proportion of” the lands was to go to T.; and if both sons died or married without consent under twenty-one, the lands were to belong to the settlor's daughters, their heirs and assigns, as tenants in common:—

Held, (1) that G. was entitled to a rentcharge of £100 a-year in any event, with the superadded right of taking half the rents and profits whenever the rental exceeded £200 a-year; (2) that G. took an estate for life only in the rentcharge.

Motion on behalf of the petitioners to amend the conditional order for sale by directing inter alia that an annuity or yearly rentcharge of £100, issuing and payable out of the lands of Ballyneety, in the barony of Coonagh, and county of Limerick, or if the rents and profits of the said lands exceed £200 a-year, then an annuity or yearly rentcharge equal in amount to one moiety of such rents and profits, be sold. The petitioners were mortgagees of the estate and interest which George W. Bennett, the younger son of Samuel Bennett, took under a postnuptial settlement, or voluntary deed, dated the 6th August, 1870, and made between the said Samuel Bennett of the one part, and Thomas Turnell Bennett and George Bennett, trustees, of the other part.

The notice of motion was served by direction of Ross, J., for the purpose of determining a question of construction upon this deed. By the deed a clear annuity of £100 a-year charged on the lands of Ballyneety was given after the settlor's death to his wife Emma Bennett, for her life, and after certain events which happened the deed provided that “her £100 a-year, or half the rents and profits of the said townland of Ballyneety should be paid to the said George Bennett” (the owner in the matter). The other material clauses of the deed are sufficiently stated in the judgment of Kenny, J., who heard the motion in the unavoidable absence of Ross, J.

A cross notice was served on behalf of Mrs. Jane Bennett, the owner of the lands charged, seeking a declaration that, inasmuch as there were no words of inheritance annexed to the limitation of the yearly rentcharge, George W. Bennett was entitled to it for his life only.

O'Connor, Q.C. (with him 2). F. Browne), for the petitioners:

Two questions are raised by the notices of motion. First, as to the amount of the annuity; secondly, as to its duration. By the deed of the 6th August, 1870, the whole estate in the lands of Ballyneety was given to the trustees. The legal estate was vested in them, because, immediately upon the death of the settlor, active duties were imposed upon them. No share in the lands was expressly given by the deed to Thomas Bennett, who was the eldest son and heir-at-law of the settlor, and upon whom, of course, in that character any undisposed of interest would devolve. After the death of the settlor's widow, Emma Bennett, “her £100 a-year, or half the rents and profits of the said townland of Bally neety, shall be paid to the said George Bennett on his attaining the age of twenty-one years.” What is the meaning of these words? There are only three possible constructions—First, that George Bennett was to get a fixed unalterable sum of £100 a-year; secondly, that he was to get £100 a-year if the rents and profits were sufficient—but if they fell short, then only half the rents and profits; thirdly, £100 a-year, but if half the rents and profits exceeded that sum, then half the actual rents and profits. The first construction is inadmissible, because if that were the settlor's meaning there would have been no use in superadding the alternative. To ascertain whether the second or third construction is the true one, the context must be called in aid. The annuity is first mentioned in the gift to the wife. It is there described as “a clear annuity of £100 a-year.” The annuity given to George is “her £100 a-year.” That supports our contention that the third construction is to be adopted. But suppose the meaning obscure, then the grantee is entitled to take in the way most favourable to him: Elphinstone on Deeds, p. 100, Rule 22, citing Shep. Touch., 83. But if the patent ambiguity cannot be removed, the clause is void for uncertainty, subject to the one exception that it may be determined by the election of the parties. Half of the rents and profits are in fact much less than £100 a-year, so that it would be sufficient for the petitioner to establish that the annuity was at least £100 a-year clear and without liability to diminution. The gift over on the death of Thomas and George under the age of twenty-one, or unmarried, shows that the settlor thought he was dealing with the whole estate, that he had exhausted it all. The corpus of the property was dedicated to the creation of an annuity first given for life, and afterwards treated as continuing.

Then as to duration, this is a perpetual annuity: Stokes v. Heron (1). These are equitable interests, and the cases on wills apply. The deed itself is testamentary in its character. Words of limitation are unnecessary. We have only to ascertain what was the intention of the settlor. Presumably the trusts exhaust the whole of the legal estate in the trustees: see per May, C. J., in Lysaght v. Magrath (2), where he says:—“In dealing with which description of estate (i.e. merely equitable interests) it has been laid down by several...