The Estate of Sir J. A. R Gore Booth

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 10 March 1909
• Court: Chancery Division (Ireland)
• Date: 10 March 1909

In the Matter of the Estate of Sir J. A. R. Gore Booth.

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.

1910.

Tenant for life — Recoupment — Instalments — Purchase — money of perpetuity rents secured by mortgage of the rents and repayable by instalment annuities — Land Law (Ireland) Act, 1896 (59 & 60 Vict. c. 47), s. 26.

By grants under the Irish Church Temporalities Acts certain lands were conveyed to R., subject to perpetuity rents. In 1873 the said rents were purchased by R. Portion of the purchase-money was secured by mortgage, whereby the said rents were conveyed to the Church Commissioners, subject to the proviso that, if R. should pay to the Commissioners the principal sum thereby secured, with interest, by sixty-four half-yearly instalments, the Commissioners would reconvey the said rents as R. should direct, and the said mortgage contained a covenant by R. for payment of said principal sum by the instalments aforesaid, and empowered the Commissioners in default of payment, to sell said rents. Under the will of R., made prior to 1873, H. became entitled to said rents for his life, with power of disposal of same by deed, and, on his death, J. became entitled thereto for his life under deed of appointment made pursuant to said power. Portion of the lands out of which said rents were payable having been sold under the Land Purchase Acts, the executors of H. and J., respectively, claimed to be recouped out of the redemption price of the apportioned parts of said rents redeemed in the matter, so much of the annual instalments paid by H. and J., respectively, as represented capital.

Held, that inasmuch as the principal sum secured by said mortgage was, prior to the execution thereof, a debt of R., and, notwithstanding the special arrangement as to the mode of repayment, remained by the terms of said mortgage, both in case of default and by the covenant for repayment, a debt payable out of the entire fee, the executors of H. and J., respectively, were entitled to be so recouped.

In re Nepean's Settled Estate ([1900] 1 Ir. R. 298), and In re Moffett (39 Ch. D. 534), followed and applied. In re the Duke of Leinster's Settled Estate (23 L. R. Ir. 152), and In re Gunning Moore's Estate (40 I. L. T. R. 224), distinguished.

Semble, the relative rights of tenant for life and remainderman are outside the scope and purpose of s. 26 of the Land Law (Ireland) Act, 1896 (59 & 60 Vict. C. 47).

Hearing of objection to Final Schedule of incumbrances. The facts as stated in the judgment of Wylie, J., were as follows:

By a grant in perpetuity under the Church Temporalities Acts, dated 18th August, 1839, the lands of Ballygilgan were conveyed by the Bishop of Elphin to Sir Robert Gore Booth, subject to a perpetuity rent of £150 8s. 1¹/₂d., and by another grant in perpetuity, under the same Acts, dated 29th October, 1873, the lands of Finned were also granted to Sir Robert Gore Booth, subject to a perpetuity rent of £33 8s. 5d. By a conveyance, dated 25th May, 1875, the Church Commissioners, in consideration of a sum of £1156 4s. 1d., then paid by Sir Robert Gore Booth, and of a further sum of £3439 9s. 5d., to be secured as therein provided, granted the said two perpetuity rents to Henry William Gore Booth, and his heirs, in trust for said Sir Robert Gore Booth, his heirs and assigns, absolutely; and by another deed of even date the said perpetuity rents were conveyed to the Church Commissioners, their successors and assigns, subject to the proviso that if the said Sir Robert Gore Booth, his heirs, executors, or administrators, should pay to the Commissioners, their successors and assigns, the said principal sum of £3439 9s. 5d., with interest at the rate of 4 per cent. per annum, by sixty-four half-yearly instalments of £95 15s. each, from the 1st April, 1875, the Commissioners would reconvey the said perpetuity rents as the said Sir Robert Gore Booth should direct. The said deed contained a covenant by Sir Robert Gore Booth, for himself, his heirs, executors, and administrators, for payment of the said sum by the instalments aforesaid, and empowered the Commissioners, in case of default of payment, in the prescribed manner, to sell the perpetuity rents and pay out of the proceeds of sale all costs and expenses, and retain said principal money and interest then due on account of the money thereby secured.

By his will dated the 17th December, 1870, Sir Robert Gore Booth devised his unsettled estates and freehold property, which, at the time of his death, included the said perpetuity rents, to Henry William Gore Booth for the term of his natural life, with power, if he should think fit, by deed to dispose of the same absolutely by sale, lease, or otherwise, and from and after his decease, in case he should make no such disposition, with remainder to his first and other sons in tail male, in such shares and proportions and with such limitations and restrictions as he should by deed or will appoint; and, in default of male issue, remainder over to testator's daughters. Sir Robert Gore Booth died on the 21st December, 1876, and thereupon Sir Henry William Gore Booth, succeeded him as tenant for life of said rents under said will of his father, and also became tenant for life of the lands out of which the said rents were payable, under the will of Robert Newcomen Gore Booth, dated the 18th February, 1861.

By deed, dated the 1st April, 1892, Sir Henry William Gore Booth appointed that the unsettled estates devised to him by his father's will should enure, from and after his death, to the use of the trustees therein named for a term of a thousand years, and, subject thereto, to the use of the vendor for life with remainder over.

Sir Henry William Gore Booth died on the 13th January, 1900, whereupon the vendor became tenant for life of said perpetuity rents under said deed of the 1st April, 1892, and also became tenant for life of the lands out of which the said rents issued under a re-settlement dated the 13th March, 1894.

Sir Henry William Gore Booth, as tenant for life of said rents, paid the instalments under said deed of the 25th May, 1875, from the 17th December, 1876, down to the 13th January, 1900; and since said last-mentioned date the vendor as tenant for life had also paid some of said instalments. The executors of Sir Henry William Gore Booth, and the vendor, respectively, claimed to be entitled to be recouped, out of the redemption price of apportioned parts of said rents redeemed in this matter, so much of said annual instalments paid by them respectively as represented capital.

The following ruling had been made by the Examiner:—

“The redemption price of these rents is also subject to the repayment thereout of the amount of the instalments paid by the vendor on foot of the mortgage to the Church Commissioners, dated the 25th May, 1875. I do not think that any of the instalments paid by Sir Henry William Gore Booth are now repayable to his executors. Though he was tenant for life of these rents and, therefore, the ordinary presumption would seem to arise that such capital sums paid by him were living charges at the date of his death and vested in him, yet, as he had the power to become the absolute owner of the rents under the provisions of the will of Sir Robert Gore Booth, I think such presumption is rebutted. He did, by appointment in 1892, in fact treat these rents as his own property by...