The Estate of Mary Hester Cullen

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 21 January 1907
• Court: Chancery Division (Ireland)
• Date: 21 January 1907

In the Matter of the Estate of Mary Hester Cullen (1).

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.

1907.

Will — Construction — Devise of personalty — Interest for life — Absolute interest.

Held, that M. H. C. took an interest for life only.

Objection to final schedule of incumbrances. By his will, dated 5th February, 1886, Mark Colgan, who died in 1886, devised and bequeathed the lands of Rockfield to his daughter Mary Hester Colgan “for her life, with remainder to her issue in tail male, and in default thereof to her daughters as tenants in common, and in default to …” The lands of Rockfield were held under lease for 10,000 years, dated 21st September, 1802, at the yearly rent of £138. Mary Hester Colgan, who afterwards married Hugh Cullen, by indenture of mortgage, dated 30th September, 1903, mortgaged her interest in the said lands to Maryanne Delany to secure the sum of £1100 and interest. Proceedings for the sale of the lands were begun in 1903 in the Land Commission. The sale was completed, and the proceeds were now about to be distributed. The mortgage for £1100 was returned at No. 7 on the final schedule of incumbrances as affecting the lands. The trustees of the settlement of the will of Mark Colgan filed an objection to No. 7, on the ground that the mortgage for £1100 affected only the life interest of Mary Hester Cullen, and did not affect the residue of the term.

Molony, K.C., for the mortgagee:—

Words conferring an estate tail in realty give an absolute interest in personal estate: Leventhorpe v. Ashbie (2). Here, by

the words of the will itself, the testator attempted to create an estate tail in personal estate. An estate tail cannot by law be created in chattels. Therefore the first taker takes the absolute interest: Re Cleary's Trusts (1); Jordan v. Lowe (2).

M. J. Dunn, K.C., for the trustees of the settlement of the will of Mark Colgan:—

I rely on the exception to the general rule that, where an express life estate is given to the parent, he will only take an estate for life: Knight v. Ellis (3); Ex parte Wynch (4).

P. A. O'C. White, for the vendor.

Molony, K.C., in reply:—

In Knight v. Ellis (3) the Court was able to treat “issue” as a word of purchase. The words “in tail male” are used in this will, and take the case out of Knight v. Ellis (3).

A devise of personalty to M. H. C. “for her life...