The Estate of Sir James D. T. Power

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 28 October 1913
• Court: Chancery Division (Ireland)
• Date: 28 October 1913

In the Matter of the Estate of Sir James D. T. Power.

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.

1913.

Statute of Limitations — Equitable charge on lands appointed in certain shares — One share purchased by the tenant for life of the lands, and portion thereof assigned over by him — Interest paid on the other shares from death of the tenant for life and also on the portion of the share so assigned over, but not on the remaining portion thereof — Claim to the latter barred — Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57), s. 8.

Held, that the claim to the £4999 was barred.

Young v. Lord Waterpark (8 L. J. Ch. 214) distinguished.

Question of Law arising on the ruling of the final schedule as to whether a certain sum of £4999, charged upon the lands sold in this matter by virtue of articles of agreement, dated the 23rd January, 1843, was now, in the events that had happened, a valid and subsisting charge upon the purchase-money.

The facts upon which the question arose, as stated in the judgment of Wylie, J., were as follows:—By articles of agreement executed on the marriage of James Power, son of Sir John Power with Jane Talbot, the said Sir John Power, being then seised in fee of the lands sold in this matter, agreed that the same should be limited to the use of himself for life, then to the use of the said James Power for life, and, after his death, to the use of trustees for a term of five hundred years, upon the trusts therein mentioned, and subject thereto to the use of the first son of the said marriage, and the heirs of his body, with remainders over. The trusts of the said term, in the events that happened, were to raise a sum of £20,000 for all and every, or such one or more, of the younger children of the said marriage, and in such shares as the said James Power and his said wife should jointly appoint.

There were six children of the said marriage, three sons and three daughters. On the marriage of each of the said daughters in 1870, 1872, and 1873 respectively, the said James Power and his wife appointed to each daughter a share of the said sum of £20,000, and each daughter, by her marriage settlement, assigned her appointed share to the trustees thereof. The sum of £1 only was unappointed.

The share appointed to Mrs. Devereux, one of the said daughters, amounted to £8000; and in 1876, after the death of Mrs. Devereux, Sir James Power, who was then tenant for life of the lands charged therewith, paid off the said sum, and the same was assigned to him by a deed of the 20th November, 1876, the deed expressly stating that he was paying off the same, and taking an assignment thereof, not in exoneration of the lands charged, but for his own benefit.

The said Sir James Power made his will on the 15th May, 1877, and thereby purported to give to the trustees of the marriage settlement of Mrs. O'Reilly, another of the said daughters, the sum of £3001, part of the said sum of £8000, so paid off by and assigned to himself, and appointed his five surviving children his residuary legatees. Then by a codicil dated the 30th May, 1877, this bequest to the said trustees was revoked, the testator having in the meantime by deed assigned the sum of £3001, part of the said sum of £8000, to the said trustees. The said Sir James Power died on the 30th September, 1877, and probate of his will was granted to testator's widow, Lady Power, his son, James Talbot Power, and his son-in-law, Joseph O'Reilly, the executrix and executors named in the will.

Interest had since been regularly paid upon the other appointed shares of the said sum of £20,000, and also upon the said sum of £3001, but no payment had ever been made on foot of principal or interest, or acknowledgment given, in respect of the sum of £4999, the balance of the said sum of £8000, and no claim had ever been made in respect thereof until the question was now raised by the examiner as to whether the said sum was now, in the events that had happened, a valid and subsisting charge.

The question of “stale demand” was also now argued, but the case is only reported on the question as to whether the claim was barred by the Statute of Limitations.

Ronan, K.C., W. H. Jellett, K.C. (with them F. M. Mooney), for the vendor:—

The claim to the £4999 is clearly barred under section 8 of the Real Property Limitation Act, 1874. This section superseded section 40 of the Act of 1833. Under section 40 it was held in Young v. Lord Waterpark (1), where a term was vested in trustees for raising portions for younger children, and affirmed on...