The Estate of Robert Peel Dawson Spencer Chichester

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 27 January 1908
• Court: Court of Appeal (Ireland)
• Date: 27 January 1908

In the Matter of the Estate of Robert Peel Dawson Spencer Chichester.

Wylie, J.

Appeal.

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.

1908.

Will — Construction — Contingent remainder — Bankruptcy — Spes successionis Bare possibility — Possibility coupled with an interest.

Held, by the Court of Appeal (reversing the decision of Wylie, J.), that the late Marquess of D. took nothing under the will while a bankrupt, and his “bare possibility” of becoming “sui juris” and of surviving Lord S. C., was not a “possibility coupled with an interest” which could pass by bankruptcy; that on the death of Lord S. C., the Marquess of D., having then obtained his discharge from his last and only unannulled bankruptcy, became capable of taking the estate tail, and thenceforth answered the description of the “persona designata” to take the estate on the death of Lord S. C.; that, the Marquess of D. not having subsequently become bankrupt, the estate passed on his death to his heir in tail, and that, accordingly, the vendor had no power to sell under the Land Purchase Acts.

Beaupré's Trusts (21 L. R. Ir. 397) discussed.

Question of law submitted by the Estates Commissioners for the decision of the Judicial Commissioner pursuant to the provisions of section 23 (1) of the Irish Land Act, 1903.

From the memorandum of the Estates Commissioners the following facts appeared:—

By her will, dated the 10th December, 1889, the Hon. Dorcas Juliana Fanny Chichester, commonly called Lady Dorcas Juliana Chichester, gave and devised all her real estate at Dowse, otherwise Dooish, in the barony of Raphoe and county of Donegal (being the estate for sale in this matter), and all other the real estate of or to which she should at her death be seized or entitled, or over which she should at her death have any general power of appointment or disposition by will, unto and to the use of Lord Adolphus John Spencer Churchill Chichester, commonly called Lord Spencer Chichester, and William Dawson, their heirs and assigns, upon trusts declared in the words following, that is to say— “Upon trust if my brother, the present Marquess of Donegall, shall not at the time of my death be or subsequently thereto become a bankrupt, or have done or suffered anything whereby the said rents or profits, or any part thereof, would, through his act or default, or by operation or process of law, or otherwise, if belonging absolutely to him, have become vested in, or payable to, some other person or persons, to pay the said rents and profits to my said brother, the said Marquess of Donegall, during his life, or until he shall become bankrupt, or until he shall assign, charge, or incumber the same rents and profits, or any part thereof, or shall do or suffer something whereby the same or some part thereof would, through his act or default, or by operation or process of law, or otherwise, if belonging to him, have become vested in or payable to some other person or persons; and, after the failure or determination of the trust hereinbefore contained in favour of my said brother, upon trust, if my brother Henry Fitzwarrine Chichester, commonly called Lord Fitzwarrine Chichester, shall not at the time of my death be or subsequently thereto become a bankrupt, or have done or suffered any such act or thing as aforesaid, to pay the said rents and profits to my said brother, Lord Fitzwarrine Chichester, during his life, or until he shall become a bankrupt, or assign, charge, or incumber the same rents and profits, or any part thereof, or do or suffer any such act or thing as aforesaid; and, after the failure or determination of the trust hereinbefore contained in favour of my said brother, Lord Fitzwarrine Chichester, upon trust to pay the said rents and profits to the said Lord Spencer Chichester, during his life, and from and after his death my trustees or trustee shall stand possessed of the said real estate hereinbefore devised upon trust for the person who shall at the decease of the said Lord Spencer Chichester be Marquess of Donegall, if he shall not then be or subsequently become bankrupt, or have done or suffered anything whereby the said rents and profits, or any part thereof, would through his act or default, or by operation or process of law, or otherwise, if belonging absolutely to him, have become vested in or payable to some other person or persons, and his heirs in tail general, according to their respective seniorities; and, upon the failure or determination of the trust lastly hereinbefore contained, my said trustees or trustee shall stand possessed of the said real estate upon trust for the first and every other son of the said Lord Spencer Chichester successively, according to their seniorities in tail male,” with remainders over.

The said testatrix died on or about the 6th March, 1890, without having revoked or altered her said will, save by a codicil dated the 30th January, 1890, which did not affect the devise hereinbefore stated; and the said will and codicil were on the 2nd September, 1890, duly proved in the Principal Probate Registry in England, and the probate thereof was on the 14th January, 1891, resealed with the seal of the Principal Probate Registry in Ireland.

Prior to the death of the said testatrix, the Right Hon. George Augustus Hamilton, then Marquess of Donegall, had been several times adjudicated a bankrupt in England, the last of which adjudications was made by an order dated the 1st November, 1889, in the matter of the High Court of Justice in Bankruptcy entitled “Re the Hon. George Augustus Hamilton Chichester, commonly known as the Earl of Belfast.—No. 1328 of 1889.”

By an order made in the said matter on the 9th July, 1896, the said Marquess obtained his discharge under the said bankruptcy of 1889, and by an order dated the 16th July, 1900, all the other bankruptcies then outstanding were annulled.

At the date of the death of the said testatrix the said Lord Fitzwarrine Chichester was also an undischarged bankrupt, and the said Lord Spencer Chichester accordingly entered into the receipt of the rents and profits of the said lands, and so continued down to his death, which took place on the 5th March, 1901.

The above-named vendor is the eldest son of the said Lord Spencer Chichester.

On the 16th July, 1900, as aforesaid, all the bankruptcies outstanding against the said Marquess of Donegall were annulled, and between that date and his death no other bankruptcy petitions were presented against his estates.

On the death of the said Lord Spencer Chichester, Robert Charles Ponsonby, as a trustee of the said will, made inquiries from the said Marquess with regard to his bankruptcies, and the said Marquess then informed the said Robert Charles Ponsonby that he had not yet got rid of them; and the above-named vendor was accordingly allowed to enter into the receipt of the rents and profits of the said lands.

Notwithstanding that in fact the bankruptcies of the said Marquess were annulled or discharged prior to the death of the said Lord Spencer Chichester, and that no new petitions were presented, the said Marquess never made any claim to the said lands, though he was well aware of the terms of the said will. He was absolutely insolvent at the death of the said Lord Spencer Chichester, and so continued up to his death, which took place on the 13th May, 1904.

The said Marquess left an only son, Edward Arthur Donald St. George Hamilton Chichester, Marquess of Donegall, who was born on the 7th October, 1903.

The following question was submitted:— On the true construction of the said will, in the events which have happened as above stated, is the above-named vendor a person having power to sell under the Land Purchase Acts?

Ronan, K.C., D. S. Henry, K.C., Macrory, and Gaussen, for the vendor.

Jellett, K.C., and Gerald FitzGibbon, for the infant Marquess of Donegall.

Wyllie, J. (after stating the facts):—

The question submitted to me in this case is whether, on the true construction of the will of Lady Dorcas Juliana Chichester, and in the events that have happened, the vendor is entitled to the lands for sale in this matter?

The contention of the vendor is that, under the circumstances stated, the lands would, at the death of Lord Spencer Chichester, if they had belonged to the then Marquess of Donegall, have become vested in his trustee under the bankruptcy of 1889. On the other hand, the present Marquess contends (1) that the gift in the will to the person who should, at the death of Lord Spencer Chichester, be Marquess of Donegall did not, during Lord Spencer Chichester's life, confer such a contingent estate as would vest in the trustee in bankruptcy, but a mere expectancy, or spes successionis, which would not pass to the trustee; and (2), that even if the interest conferred was such a contingent estate or interest as would pass to a trustee in bankruptcy, it vested, in this case, in the trustees or assignee under one of the bankruptcies prior to that of 1889, and that, on their annulment in 1900, it reverted to the late Marquess and not to the trustee under the bankruptcy of 1889.

Now, it is impossible to construe this will apart from the facts of the case. There was, at the date of the will, as appears by the will itself, and also at the death of the testatrix, a Marquess of Donegall who, if he should survive Lord Spencer Chichester would, at the death of the latter, be Marquess of Donegall, and the person entitled to the lands under the devise if the forfeiture clause did not apply. The only contingency, therefore, affecting the interest of the late Marquess was his surviving Lord Spencer Chichester. His interest was not a mere expectancy, or spes successionis, such as would, under the devise, be taken by any subsequent Marquess. I think, on the facts, the will must be construed as if it ran, “and after the...