The Estate of The Right Hon. Evelyn, Viscountess De Vesci and Others

• Jurisdiction: Ireland
• Judge: Wylie, J
• Judgment Date: 23 January 1908
• Court: Chancery Division (Ireland)
• Date: 23 January 1908

In the Matter of the Estate of The Right Hon. Evelyn, Viscountess De Vesci and Others.

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.

1908.

Settlement — Lands subject to perpetual annuity — Purchase of annuity by tenant for life — Part payment by mortgage of annuity — Beneficial interest in annuity — Irish Church Act, 1869 (35 & 36 Vict. c. 90), s. 34, sub-s. 8.

Held, that the tenant for life was absolutely entitled to the annuity, subject to the mortgage.

Qusetions of law submitted by the Examiner to the Judicial Commissioner for his decision. From the memorandum of the Examiner the following facts appeared:—

By indenture, dated the 10th August, 1779, and made between the Trustees and Commissioners of the First Fruits payable out of Ecclesiastical Benefices first part, the Right Hon. William Henry, Earl of Clermont second part, and Rev. James Eastwood third part, the Earl of Clermont granted to James Eastwood and his successors, perpetual Curates of the Parish of Ballymascanlan, an annuity of £20 (equivalent to £18 9s. 2d. present currency) issuing out of and charged upon the manor, towns, and lauds of Ballymascanlan, situate in the county of Louth. The lands sold in this matter formed portion of the lands comprised in the manor of Ballymascanlan. By deed-poll, dated 5th April, 1878, the Commissioners of Church Temporalities in Ireland, in whom the said annuity was then vested, in consideration of £109 13s. 5d., paid by the Right Hon. Thomas, Baron Clermont, and the further sum of £305 6s. 7d., secured by mortgage of even date, hereinafter mentioned, granted the said annuity to Baron Clermont to hold same to him, his heirs, and assigns for ever.

By indenture of mortgage, dated 5th April, 1878, and made between the Right Hon. Thomas, Baron Clermont of the one part and the Commissioners of Church Temporalities of the other part, Baron Clermont granted the said annuity to the Commissioners, their successors, and assigns, to secure payment of the sum of £305 6s. 7d., with interest thereon, by sixty-four half-yearly instalments of £8 10s. each. At the date of the deed-poll and mortgage aforesaid the Right Hon. Thomas, Baron Clermont was tenant-for-life of the manor of Ballymascanlan under the limitations of a settlement created by the will of the Right Hon. William Charles, Viscount Clermont, who died on the 25th June, 1829.

By his will bearing date 25th July, 1882, the Right Hon. Thomas, Baron Clermont, after bequeathing certain specific and pecuniary legacies, disposed of portion of his personal estate in the words following:— “Subject to the payment of my said debts and the legacies aforesaid, and to the payment of any other legacies which I may hereafter bequeath by any codicil or codicils to this my will, I give and bequeath all money which at the time of my death shall be standing to my credit in any bank in England or Ireland, or invested in the public funds, or any other security, to the trustees of this my will hereinafter named in trust, after the payments aforesaid, to invest in Government Stock the residue of such money as shall not have been invested, and to pay the interest thereon to my dearest wife for her life, and after her death to hold the principal of such residue and the securities therefor in trust for my niece, Martha Stewart, for her sole and separate use.” The testator then bequeathed divers annuities, and subject thereto devised all his real and freehold estates, and all other the lands and hereditaments of which he was seized or entitled to, to James, Marquis of Ormonde, and Owen Wynne, their heirs and assigns, to the uses following...