The Estate of Mary Jane Davis

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 05 November 1912
• Court: Chancery Division (Ireland)
• Date: 05 November 1912

In the Matter of the Estate of Mary Jane Davis.

Wylie, J.

CASES

DETERMINITD 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.

1912.

Settlement — Rectification — Legal interests in settled realty — Omission of words of inheritance — No evidence of intention dehors the deed — Settled lands sold under the Land Purchase Acts.

By marriage settlement, executed in 1843, reciting (inter alia) that the intended husband had agreed to make a suitable provision for the issue of the marriage, and that he was to receive with his intended wife a marriage portion, certain lands, held under lease for ever, were (with others held for estates pur autre vie) conveyed to trustees and the survivor of them and the heirs of the survivor upon trust to permit the principal settlor to receive the rents and profits of the portion of the said lands conveyed by him for his life, then to permit the husband to receive the rents and profits of the whole for his life, then, subject to a jointure for the wife in case she survived, upon trust to permit the issue male, if any, of the intended marriage to receive the rents and profits in such shares as the husband, or the wife in case she survived him, should appoint, and, in default of appointment, to permit the first and every other son and sons of the husband to receive the rents and profits in tail male according to seniority, and, in default of issue male, upon trust to permit the issue female, if any, of the intended marriage to receive the rents and profits in such shares as the husband, or the wife in case she survived him, should appoint, and, in default of appointment, to permit the issue female, if any, to receive the rents and profits as tenants in common and not as joint-tenants, and, in default of all such issue, then upon trust to permit the right heirs of the husband to receive the rents and profits for ever.

There was only one child issue of the marriage, a daughter, who duly entered into possession under the settlement, and subsequently sold the said lands under the Land Purchase Acts. On a question arising as to the nature of the interest taken by the vendor:—

Held, that, from the provisions of the settlement, it was clearly the intention of the parties that, in default of appointment, the issue female should take estates in fee-simple, and that the settlement should be treated as rectified accordingly, and the residue of the purchase-money paid out to the vendor.

Fitzgerald v. Fitzgerald ([1902] 1 I. R. 477), and Ex parte Rice (30 I. L. T. R. 57), considered and applied.

Motion by the vendor for an order declaring that the vendor was absolutely entitled to the residue of the purchase-money of the lands sold in this matter, and, if necessary for the purpose of such declaration, that the settlement of the 14th day of November, 1843, executed on the marriage of James Tate and Mary Anne Warren, might be reformed or rectified by the introduction of the words “and their heirs” or “and the heirs of their bodies” immediately after the words “issue female, if any, of the said intended marriage,” in every place in which such last-mentioned words occurred, or otherwise in such manner, or by the introduction of such prefatory words in the Order to be made on this application, as to the Court should seem just; and that the sum of £411 12s. 3d. standing to the credit of the estate, or the residue thereof after discharging all just claims, might be paid out to the vendor.

Questions had been submitted by the Examiner as to the nature of the interests taken by the persons deriving under the limitations in the said settlement.

At the date of the settlement, the lands, which had been sold in this matter under the Land Purchase Acts, were held by Robert James under a lease for ever, except a small portion thereof then held by James Tate under a sub-lease for ever from Robert James at a nominal rent.

The parties to the settlement were Robert James, an uncle of James Tate, of the first part, the said James Tate of the second part, Mary Anne Warren of the third part, and trustees of the fourth part. It recited inter alia that James Tate had agreed to make a suitable provision for his intended wife and the issue of said marriage, and that Robert James had agreed to convey these lands in order to enable that provision to be made; and further, that James Tate was to receive with his intended wife a marriage portion of £400. And by the said settlement the said lands were (with others then held by Robert James under lease for lives renewable for ever) conveyed by Robert James and James Tate to the trustees and the survivor, and the heirs of the survivor, to hold (subject as in the said lease for ever), upon trust to permit and suffer Robert James and his assigns to receive the rents and profits of that part of the said lands so conveyed by him, during his life, and, after his decease, upon trust to permit and suffer James Tate to receive the rents and profits of the whole of the said lands during his life, and, after his decease, upon trust, subject to a jointure for Mary Anne Warren in case she survived James Tate, to permit and suffer the issue male, if any, of the said intended marriage to receive the rents and profits in such shares and proportions and in such manner as James Tate, or Mary Anne Warren in case she survived him, should by deed or will appoint, and, in default of appointment, upon trust to permit and suffer the first and every other son and sons of James Tate to have, hold, and receive the rents and profits in tail male, according to their seniority of age and priority of birth, and, in default of issue male of the said intended marriage, then upon trust to permit and suffer the issue female, if any, of the said marriage to have, hold, and receive the rents and profits in such shares and proportions and in such manner as James Tate, or Mary Anne Warren in case she survived him, should appoint, and, in default of appointment, upon trust to permit and suffer the issue female, if any, of the said intended marriage to have, hold, and receive the rents and profits as tenants in common and not as joint-tenants, and, in default of all such issue, then upon trust to permit and suffer the right heirs of James Tate to have, hold, and receive the rents and profits for ever.

The events that had happened since the date of the settlement were as follows:—The marriage was duly solemnized. There was only one child of the marriage, Mary Jane Tate, now Davis, the vendor. Robert James, the principal settlor, died in 1846. James Tate survived his wife, married again, and had a son John Tate. James Tate died in 1887, having...