The Estate of Thomas Quirke, Owner; James Quirke, Petitioner

• Jurisdiction: Ireland
• Judgment Date: 16 December 1878
• Date: 16 December 1878
• Court: Chancery Division (Ireland)

Appeal.

Before BALL, C., and DEASY and FITZ GIBBON, L.JJ.

IN THE MATTER OF THE ESTATE OF THOMAS QUIRKE,

OWNER;

JAMES QUIRKE,

PETITIONER

Kennedy v. WoodsUNKIR I. R. 2 C. L. 436.

Fowler v. Fowler 16 Ir. Ch. R. 507.

Butler v. SmithUNK 16 Ir. C. L. R. 213.

Ex parte Domvile. In re Fowler 14 Ir. Ch. R. 19.

Reidy v. PierceUNK 11 Ir. C. L. R. 361.

Eyre v. M'DowellENR 9 H. L. C. 642, 643.

In re Coffey's Estate I. R. 4 Eq. 47.

Tobin v. ClearyUNKUNKIR I. R. 7 C. L. 17; 8 C. L. 366.

Foley v. GallagherUNK 2 L. R. Ir. 389.

Reidy v. PierceUNK 11 Ir. C. L. R. 361.

In re Hendrick's Estate 6 Ir. Jur. (N. S.) 242.

In re Butler's Estate 13 Ir. Ch. R. 453.

In re Whaley's Estate 2 Ir. Jur. 7.

Eyre v. M'DowellENR 9 H. L. C. 642.

Wood v. Dixie 7 Q. B. 892.

Bowland v. CostelloUNKIR Referred to by Pigot, C. B., in Earl of Donoughmore v. Forrest, I. R. 5 C. L. 448.

Piers v. PiersENR S. & Sc. 414.

Lease depending on very aged life Covenant against alienation Condition of re-entry for breach Assignment without landlord's consent Petition for sale by judgment creditor of lessee "Discretion" of Land Judge (21 & 22 Vict. c. 72, s. 53).

VOL. III.] CHANCERY DIVISION. by his family and friends, and the testator himself. I reject the Prob. details contained in this affidavit as to declarations of the testator's 1871. intentions. But taking into consideration these circumstances to In re TWOB1LL. which I have adverted, and remembering that the abbreviation " Eddie " is as fitly applied to Edmund as to Edward, I am of opinion that there is no person other than Edward to whom the the name and description can be applied ; and that the evidence is sufficient, and has the effect of correcting the mistake in the will as to the Christian-name of the intended executor. " My brother-in-law Edmund O'Kelly," and the testator's brother-in-law Edward O'Kelly, are the person known to the testator as Eddie O'Kelly, and therefore one and the same person. I did not reserve judgÂÂment on this motion because of any serious doubt, or because Mr. Meldon left anything unsaid which ought to be said ; but the principle involved in such questions is important, and I wished to read carefully the case of Charter v. Charter, in which the Lords who gave judgment were equally divided. Let probate of the will be granted to Kate Twohill, the widow of the testator; to Thomas Butler in said will named; and to testator's brother-in-law Edward O'Kelly, in said will erroneously namedEdmund O'Kelly, the executors of said will. Solicitors for Applicants: Messrs. W. Roche 8f Son. IN THE MATTER OF THE ESTATE OF THOMAS QUIRKS, Appeal. OWNER; JAMES QUIRKE, PETITIONER (1). 1878. Lease depending on very aged life-Covenant against alienation-Condition Dec. 13, 16. of re-entry for breach-Assignment without landlord's consent-Petition for sale by judgment creditor of lessee-" Ihscretion" of Land Judge (21 4. 22 Vict. c. 72, s. 53). A lease made in 1864 for one life, and containing a covenant against alienÂÂation without the landlord's consent, and a condition of re-entry for breach, was assigned for value by T., the lessee, to C. in January, 1877. The land (1) Before BALL, C., and DEASY and FITZ GIBBON, L.JJ. 24 LAW REPORTS (IRELAND). [L. R. I. Appeal. lord did not consent to the assignment, but continued to receive the rent as 1878. before. In May, 1877, J. registered a judgment against T., treating the assign- In re ment as a nullity, and presented a petition in July to the Landed Estates Court QunacE's for sale of the lease, the cestui pie vie being then eighty-five years of age. ESTATE. The Land Judge refused to sell, and J. having appealed :- Held (affirming the decision below), that the Judge had exercised a sound discretion, as the conveyance of the Land Court would either have given a purÂÂchaser a defeasible title or have destroyed the landlord's right of re-entry. APPEAL by the Petitioner James Quirke, from an order of Judge Ormsby, of the 20th February, 1878, allowing, without costs, the cause shown by Michael Cahill against making absolute the conditional order for sale. It appeared that the petition was filed on the 20th July, 1877, for the sale of the Owner's interest, under two leases from Jonathan Hopkinson, one dated the 13th September, 1864, of,10A. 2R. 30P. of the lands of Ballyderown, for the life of Stephen Earl of MountÂÂcashell, and the other dated the 25th October, 1864, of 86A. of the same denomination, for the same life, then (1877) aged eighty-five years. The first Schedule to the petition stated both sets of lands to be "in the occupation of the Owner." The Petitioner's incumbrance was a judgment registered as a mortgage against the Owner on the 4th May, 1877, and the petition...