The Estate of William A. Battersby

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 28 July 1911
• Court: Chancery Division (Ireland)
• Date: 28 July 1911

In the Matter of the Estate of William A. Battersby.

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.

1911.

Settlement created by deed — Equitable interests in estate pur autre vie — Implication of cross-remainders — Intention — Statute of Limitations — Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57), s. 8 — Joint owners of equitable charge in receipt of rents of lands subject to charge — Constructive payment of interest on charge.

Where by a settlement created by deed, even where the trusts are executed, equitable interests in a term pur autre vie are limited to several persons as tenants in common in quasi tail, cross-remainders in quasi tail will be implied among them, if an intention to limit such interests sufficiently appears on the face of the instrument.

Where the owners of an equitable charge on land had, under an assumption of title to the land as tenants in tail, entered into receipt of the rents and profits, constructive payment of interest on the charge will be presumed, so as to prevent it being barred, it being for their benefit to pay such interest until they had acquired by statute a title to the lands.

Objection to the final schedule of incumbrances.

The objectors were William Murray, Echlin Francis Murray, Charles Murray, Leslie Patten Murray, Leslie Patten Murray, junior, and Alexander Evans Murray, claiming under a settlement created by the will of Henry Murray, who died on the 10th of July, 1880, and who was eldest son and heir-at-law of Alexander Murray.

The facts appearing from the objection, as stated in the judgment of Wylie, J., were as follows:—Alexander Murray by a settlement, dated the 10th August, 1810, and executed on the occasion of his second marriage with Catherine Sweny, granted the lands sold in this matter, then held by him under a lease for lives renewable for ever, to trustees, their heirs, and assigns, in trust, after said intended marriage, for said Alexander Murray for life, and after his death for his intended wife, Catherine Sweny, for life, and, after the death of the survivor, in trust for the child or children of the said Alexander Murray on the body of the said Catherine Sweny to be begotten, in such shares as the said Alexander Murray should by deed or will appoint, and in default of appointment, in trust for such children (if more than one) share and share alike as tenants in common, and not as joint tenants, and the respective heirs of their bodies; and if only one such child, in trust for such only child and the heirs of his or her body; and upon this further trust that, in case the said Catherine should die without leaving any issue male or female of said marriage, then the said trustees should reconvey the said premises and all interest therein unto the said Alexander Murray, his heirs, and assigns for ever. Then, as a further provision for his said wife, and as a provision for the issue of the said marriage, the said Alexander Murray covenanted to pay to the trustees the sum of £100 in every year during his life, and in case the full sum of £2,000 should not have accumulated prior to his death, and in case his said wife should survive him, or should die leaving issue of said marriage, the deficiency in said sum was to be paid by his executors within six months after his death, which said sum as to the income thereof together with the said settled lands were to be as security for the payment to said Catherine Sweny of a jointure of £200 in case she survived her husband, and said sum of £2,000 was to be and enure to the issue of the said intended marriage subject to said jointure; and for payment of said jointure and of said sum of £2,000 the said Alexander Murray did thereby charge all his real and personal estate that he should die seised and possessed of.

The said Alexander Murray died in 1838, leaving the said Henry Murray, his eldest son by his first marriage, his heir-at-law, and also leaving his said wife Catherine Sweny and six children—one son and five daughters. Catherine Sweny died in 1865 leaving her said six children all surviving. Of the said six children, Harriette Murray died on the 13th March, 1870, Elizabeth Murray on the 28th December, 1880, Charlotte Murray, on the 14th January, 1881, Catherine Murray on the 26th June 1887, Charles Murray on the 17th May, 1894, and Augusta Murray on the 29th November, 1896, and all of them died without having had any issue. None of them executed any deed or document that would have disentailed their shares under said settlement except Augusta Murray, the last survivor, who executed a disentailing deed.

On the death of their mother, Catherine Sweny, the six children entered into possession and receipt of the rents and profits of their respective shares as tenants in common in quasi tail, and upon the death of each of the children without issue, the remaining children went into possession of their share, until, on the death of the fifth child, Charles Murray, the surviving child Augusta Murray, on the 17th May, 1894, got possession of the entire six shares, and she, assuming that she was tenant in quasi tail of the entire lands, barred the entail. The vendor, who was devisee under the will of Augusta Murray, had sold the said lands under the Land Purchase Acts.

With reference to the sum of £2,000 charged by Alexander Murray, under the settlement of the 10th August, 1810, on all his real estate for the children of the marriage, in default of it being paid to the trustees by annual sums of £100, which he thereby covenanted to pay during his life, it further appeared that when fourteen annual payments had become due, the trustees brought an action against Alexander Murray, and obtained judgment for £1,400. But from the evidence it appeared that no part of this, or of the £2,000, or any interest thereon, were ever paid in fact, and that no acknowledgment of liability was ever given.

By their objection the objectors claimed that the net proceeds of sale in this matter belonged to the estate of Henry Murray, except so much thereof as represented the shares of Augusta Murray and Harriette Murray, and were subject to the subsisting uses of the settlement created by his will, and should be dealt with accordingly, and also claimed four sixth parts of the bonus.

Garrett W. Walker, K.C., in support of the objection:—

We are not in a position to make any claim in respect of the shares of Harriette, who died before the date of the settlement created by the will of Henry Murray, or of Augusta, who barred the entail, but we claim the shares of the other four children. Section 2 of the Act of 1874 applies expressly to the facts of the case. On the death of each child, the share of the child so dying reverted to Henry Murray, the heir-at-law of Alexander Murray. The statute could not run in favour of those who went wrongfully into possession of the shares which fell into possession after the date of the settlement created by the will of Henry Murray, under which we claim. If the limitations in settlement of the 10th August, 1810, were contained in a will, no doubt cross-remainders would be implied; but in no case can cross-remainders be implied in a deed, unless the trusts are executory: Doe d. Clift v. Birkhead (1). Here the trusts are clearly executed.

With regard to the £2000 charge, the Court is not justified in assuming that it was not paid or that the judgment for £1400 was not satisfied. Even if the Court does assume against us on this point, no acknowledgment was ever given, and there has been no payment of interest. No doubt the surviving joint owners of the charge, on the death of each of the children, went into possession of their respective shares in the lands; but the Court will not presume constructive payment of interest, as the surviving children who were in receipt of the rents and profits were under no duty or obligation to pay interest: see In re Finnegan's Estate (2). In any case mere constructive payment of interest would not keep alive the charge: In re England (3); Bassett v. Allen (4); Topham v. Booth (5). The principle underlying all the Statutes of Limitations is that a payment to prevent the barring by statute must be an acknowledgment by the person making the payment of his liability, and an admission of the title of the person to whom the payment is made: Harlock v. Ashberry (6): see also Annaly v....