The Estate of The Right Hon. William Spencer, Viscount Ashbrook, Continued in the Name of The Right Hon. Robert Thomas Flower, Viscount Ashbrook

• Jurisdiction: Ireland
• Judgment Date: 19 April 1909
• Date: 19 April 1909
• Court: Court of Appeal (Ireland)

In the Matter of the Estate of The Right Hon. William Spencer, Viscount Ashbrook, continued in the name of The Right Hon. Robert Thomas Flower, Viscount Ashbrook.

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.

1909.

Settled land — Death of tenant for life — Rights of his executor — Sale to tenants — Arrears of rent due at date of agreements for purchase — Interest on — Land Law (Ireland) Act, 1896, s. 35, sub-s. 2 — Irish Land Act, 1903, s. 24, sub-s. 8.

Where, upon the sale of a settled estate through the Irish Land Commission, arrears of rent are due to the tenant for life at the date of the purchase agreements, in the event of his death before allocation his personal representative is entitled to the interest on the sum payable in respect of those arrears under Section 24, sub-section 8, of The Irish Land Act, 1903.

Motion on behalf of the Honourable Caroline Gertrude Marton as executrix of the late William Spencer, Viscount Ashbrook, deceased, that she be declared entitled as such executrix to interest on the part of the purchase-money which represented in amount the equivalent of so much of the arrears of rent due to her as such executrix as would be payable under section 24, sub-section 8, of the Irish Land Act, 1903.

The Right Hon. William Spencer, Viscount Ashbrook, who was tenant for life of considerable estates in the counties of Limerick and Kilkenny and Queen's County, agreed with certain of the tenants under the provisions of the Irish Land Act, 1903, for the sale to them of their holdings; and it was alleged that arrears of rent amounting to £5171 5s. 6d. were added to the purchase-money. The amount of the arrears was not, however, within the knowledge of the applicant or her solicitor; but it was a common case that some arrears were due at the date of the agreements. The vendor duly filed an originating application, and lodged the purchase agreements with the Land Commission. The said William Spencer, Viscount Ashbrook, died on the 25th November, 1906. Probate of his will was granted to the applicant as executrix on the 16th August, 1907. He was succeeded by the Right Hon. Robert Thomas Flower in the title and as next tenant for life of the estates. The lands had not yet been vested.

Matheson, K.C., and W. G. Gibson, for the applicant.

Corvan, for the Right Hon. Robert Thomas Flower, present Viscount Ashbrook.

The arguments were the same as reported infra, pp. 164, 165, in the Court of Appeal.

Cur. adv. vult.

Wylie, J.:—

In this case a rather curious and difficult question has been raised, as to the meaning and effect of sub-section 8 of section 24 of the Irish Land Act, 1903. The facts are not in dispute, and are shortly as follows:—

The late Lord Ashbrook, as tenant for life of certain settled lands, entered into agreements with the tenants thereof, for the sale to them of their respective holdings under the Act of 1903, at certain fixed prices, the amount whereof in each case included a certain sum for arrears of rent then due to the vendor. The vendor duly filed an originating application, and lodged these agreements with the Land Commission. Each of these agreements contained an application by the tenant purchaser to the Land Commission, for an advance of the purchase-money, including the amount added for arrears, and also a provision for payment of interest at a specified rate on such purchase-money from the date of the agreement. The tenant purchasers have since paid the interest in lieu of rent to the Land Commission in accordance with the provisions of section 35 of the Act of 1896. The vendor died on the 25th November, 1906, and thereupon the present Lord Ashbrook became entitled to the said lands as tenant for life. Prior to the death of the late vendor, the Land Commission paid the interest in lieu of rent collected by them to Mr. Fitz Herbert, the then agent of the vendor, and he accounted for same to the late Lord Ashbrook, and to his executrix after his death for his proportion up to the date of his death. The present Lord Ashbrook dismissed Mr. Fitz Herbert from the agency, and appointed in his place Mr. James Harte, Solicitor, Kilkenny, to whom all interest in lieu of rent has since been paid, and he has accounted for the entire thereof to the present tenant for life. The Hon. Mrs. Marton, as executrix of the late vendor, now claims that, as such executrix, she is entitled to be paid so much of the interest in lieu of rent as is paid in respect of that portion of the purchase-money which is made payable to the vendor by sect. 24, sub-sect. 8, as representing arrears of rent due to him at the date of the agreements for sale. She has accordingly applied for an order staying the payment of interest to the present tenant for life until the proportion of interest claimed by her is ascertained, and for payment of same to her when ascertained.

Now the validity of that claim depends on the meaning and effect of section 24, sub-sect. 8. That sub-section provides that “in case of the sale of an estate, where—at the date of the agreement—arrears of rent were due in respect of any holding on the estate, a sum equivalent in amount to those arrears, but not exceeding in any ease one year's rent, shall be paid out of the purchase-money to the person who would have been entitled to receive those arrears for his own use.”

Up to the present, as far as I know, no question has ever been raised as to the proper construction of that sub-section in relation to a claim for interest. In effect, though not in terms, it only applies where the estate sold is settled land, because if the vendor were owner in fee, there would not appear to be any reason for distinguishing that portion of the purchase-money representing added arrears from the rest of the purchase-money.

In dealing with this sub-section as applied to settled lands, it has been the unchallenged practice to place on the allocation schedule the claim under this sub-section in priority to all claims in respect of superior interests or incumbrances affecting the fee-simple: but, in ascertaining the amount payable in respect of such claim, there has always been deducted from the sum added for arrears all unpaid outgoings which would have been...