The Estate of Thos. Forster, Owner; Francis W. Hopkins, Petitioner

• Jurisdiction: Ireland
• Judgment Date: 13 May 1889
• Date: 13 May 1889
• Court: Chancery Division (Ireland)

Chancery Division.

Monroe, J.

IN THE MATTER OF THE ESTATE OF THOS. FORSTER,

OWNER;

FRANCIS W. HOPKINS,

PETITIONER.

Hill v. Potts 8 Jur. (N. S.) 555.

Nichols v. HawkesENR 10 Hare, 342.

Maunsell v. CampbellENR 3 De G. & J. 234.

Stokes v. Heron 4 Ir. Eq. R. 284.

Hill v. Potts 8 Ir. Jur. (N. S.) 555.

Brent v. CullenELR L. R. 6 Ch. App. 235.

Brenan v. Boyne 15 Ir. Ch. R. 189; 16 Ir. Ch. R. 87.

Kerr v. Middlesex HospitalENR 2 De G. M. & G. 577.

Bignold v. GilesENR 4 Drew. 343.

Rawlings v. Jennings 13 Ves. 39.

Stokes v. HeronENR 12 Cl. & Fin. 161; 2 Dr. & War. 89.

Mansergh v. CampbellENRENR 25 Beav. 544; 3 De G. & J. 232.

Lett v. RandallENR 2 De G. F. & J. 388; 2 Sm. & Gif. 83.

Wilson v. MaddisonENR 2 Y. & C. C. C. 372.

Sullivan v. Galbraith Ir. R. 4 Eq. 582.

Blewitt v. RobertsENR 1 Cr. & Ph. 274.

Nicholls v. HawkesENR 10 Hare. 342.

Stokes v. HeronENR 12 Cl. & Fin. 161.

Hedges v. HarpurENR 2 De G. & J. 129.

Mansergh v. CampbellENR 3 De G. & J. 232.

Wilson v. MaddisonENR 2 Y. & C. C. C. 372.

Barden v. Meagher Ir. R. 1 Eq. 246.

Whitten v. HanlonUNK 16 L. R. Ir. 298.

Going v. HanlonUNK Ir. R. 4 C. L. 144.

Blight v. Hartnoll 19 Ch. Div. 294.

Rawlings v. Jennings 13 Ves. 39.

Heron v. Stokes 4 Ir. Eq. R. 284.

Kerr v. Middlesex HospitalENR 2 De G. M. & G. 576.

Lett v. RandallENR 2 De G. F. & J. 388.

Bignold v. GilesENR 4 Drew. 343.

Bent v. CullenELR L. R. 6 Ch. App. 235.

Will Construction Annuity Whether for life or in perpetuity.

VoL. XXIII.] CHANCERY DIVISION. 269 sum of money without any investigation or affidavit as to the M. R. propriety of the expenditure, or any power of control over it. R 1889. is impossible to do this." In re TYRRELL'S In Re Mary Hooper (1) a petition was presented by trustees for TRUSTS. the opinion of the Court as to the construction of a will. The Master of the Rolls stopped the case, observing that the object of the 30th section was to assist trustees in the execution of their trusts as to little matters of discretion ; and this was not a case of that description. Where, as in that case, a question arose as to the effect of a limitation in any instrument, it ought, for the assistance of the Court, to be argued by the opposite parties. This, in my opinion, is a case emphatically not within the Act, and I shall make no rule on the motion. Solicitors for the applicants : Messrs. Stanuell 8f Son. M. F. bequeathed to W. F. all her houses and lands, on trust to pay head-rents, and to " pay to each of his two brothers, viz. T. F. and J. F., the sum of 20 sterling each annually," and should W. F. " be desirous of commuting the above-named annual payments with either one or both of his brothers, he, with their consent in writing first obtained, may give each of them a sum of money not exceeding 200 for their claim ": Held, to be annuities for life only. The facts fully appear in the judgment, infra, p. 271. Mr. Jackson, Q. C., and Mr. L. Eiffe, on behalf of the PetiÂÂtioner : Prima facie a gift of an annuity is for life only ; but the intenÂÂtion may be gathered from the will that it is to be perpetual, and for that purpose the whole will must be looked at: Hill v. Potts (2). (1) 29 Beay. 656. (2) 8 Jur. (N. S.) 555. 270 LAW REPORTS (IRELAND). [L. R. I. Monroe, f. Here the lands are given in trust to pay head-rent, just in the same 1889. way as to pay the annuity. The annuity is not a charge but a In re limitation. The testatrix took care to limit an annuity expressly FORSTER' s ESTATE. for life when she so intended : that to Mary Morrison is " during her life," but the 20 is to be paid " annually." The sum of 200 may appear a small commutation ; but if the annuity were held to be for life only, the commutation might take place in the last year of the annuitant's life, and then it would be an extravaÂÂgant one. The payment of head-rent is directed for the protection of the payment of the annuities during the duration of the lease. A. gift de novo, without charging it on any property, is no doubt a gift merely for life : Nichols v. Holies (1) ; but the rule as laid down in that case is modified in that of Maunsell v. Campbell (2) as to cases in which the gift is a gift of part of the income of the property. Here it is carved out of the property, and there is an express trust to pay it. It is a dedication of part of the income of his property to produce an annuity : Stokes v. Heron (3) ; Hill v. Potts (4). It is a distinct gift of the income of a given fund within the case of Brent v. Cullen (5). Mr. Leech, Q. C., for the owner :- If the trust stopped at the words " 20 annually " it could not be contended that it was for life : Brenan v. Boyne (6), because the trust is co-extensive with the interest, and the apparent inadeÂÂquacy of the commutation is the only argument on the other side. But the testatrix knew well how to give a life estate, as shown by the gift to "Mary Morrison, 10 a-year during her life." But further, she provided that this terminable annuity should not be commuted, the natural inference from which is that the annuity which is commutable is not terminable. Again, the testatrix gives the annuities of 20 out of the corpus, and directs that the others are to be paid out of the profits, thereby drawing a clear distincÂÂtion between the character of the two classes of gifts. The cases are clear that where the will dedicates the corpus of a fund or (1) 10 Hare, 342. (4) 8 Ir. Jur. (N. S.) 555. (2) 3 De G. & J. 234. (5) L. R. 6 Ch. App. 235. (3) 4 Ir. Eq. R. 284. (6) 15 Ir. Ch. R.189; 16 Ir.Ch. R. 87. VOL. XXIII.] CHANCERY DIVISION. 271 estate to keep up an annuity it is a gift in perpetuity : Kerr v. Monroe, J. Middlesex Hospital (1); Bignold v. Giles (2) ; Rawlings v. Jen- 1889. flings (3). In re FORSTER'S The Right Hon. Samuel Walker, Q. C., and Mr. D. S. Henry, for ESTATE. Francis Forster : The onus of proof lies upon the claimant, who must show evidence of intention on the part of the testatrix to give a perpeÂÂtuity. The words " to each of his two brothers," " the sum of 20 each," show clear intention of giving a personal annuity, while the wording of the commutation clause is vital : " may give to each of them for their claim," and point to a mere personal gift. 200, which is but ten years' purchase, could not be the purchase-money of a perpetual annuity in 1859. The facts of Stokes v. Heron (4) are distinct. In that case there was a particular fund brought into existence for the purpose of keeping up the annuity. ManÂÂsergh v. Campbell (5) was decided not on principle but on the words .of the will. In Lett v. Randall (6), a case similar to this, in Wilson v. Maddison (7), and in Sullivan v. Galbraith (8), the arguÂÂments in favour of a perpetual annuity were the same as used now, yet did not prevail. The nature of the property has no bearing on the question. Mr. L. S. Ede, in reply : The principles of construction are laid down in Hill v. Potts (9), Stokes v. Heron (4), and in Heron v. Stokes...