Vandeleur v Sloane

• Jurisdiction: Ireland
• Judgment Date: 23 November 1919
• Docket Number: (1916. No. 167.)
• Date: 23 November 1919
• Court: Court of Appeal in Chancery (Ireland)

Vandeleur v. Sloane.

HESTER CAROLINE VANDELEUR

and

WILLIAM HENRY SLOANE and Others

(1916. No. 167.)

Appeal.

Will - Estate in realty - Estate tail - Limitation of - Name and Arms Clause - Condition - Condition precedent or subsequent - Statute of Limitations - Action for the Recovery of land.

Real estate was limited by a will to E. N. and her heirs male, "she and they and her husband taking the name and bearing the arms of N." Held,that these words formed no portion of the limitation of the estate tail, but imported at most a condition subsequent. Also held, that an action instituted by a descendant of E. N. (whose immediate predecessor had barred the entail in the lands), claiming a declaration of title, subject to the rights of the defendants who were occupying tenants, was an action for the recovery of land within 3 & 4 Wm. 4, c. 27, s. 1, as amended by the Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57).

Action.

Matthew Nesbitt, who was owner in fee simple of certain lands, including the lands of Cloonboniagh, by his will, dated the 14th October, 1812, provided as follows:—"I will and bequeath to my only son Francis Nesbitt all my real and personal estate and all my property of every kind and description for and during the term of his natural life and then to his heirs male lawfully to be begotten the eldest to be preferred and then in case of failure of male issue in the said Francis Nesbitt the said real estates to become the property of my daughter Elizabeth Nesbitt and her issue male lawfully to be begotten she and they and her husband taking the name and bearing the arms of Nesbitt, and in case the said Elizabeth should die without issue male as aforesaid then said properties and real estates to be equally divided between my other children."

By a codicil to his will, dated the 30th November, 1821, the said Matthew Nesbitt devised the said lands of Cloonboniagh to Anne Doyle and her five children, Anne, Susan, Alexander, John, and Matthew, "share and share alike during their lives or the life of the survivor or longest liver of them."

The said Matthew Nesbitt died in 1823, and his will and codicil were duly proved. On his death, Francis Nesbitt entered into possession of the lands so devised, save the lands of Cloonboniagh, which under the said will passed into the possession of Ellen Doyle and her children.

In 1831 Francis Nesbitt purported to suffer a recovery of all the lands devised by his father's will, but, the Doyle family being then in possession of the lands of Cloonboniagh, the recovery failed as to these lands, there being no legal tenant to the praecipe (1).

Francis Nesbitt died on the 7th January, 1854, leaving him surviving an only son, Francis H. W. Nesbitt. The latter died without issue on the 14th October, 1879, whereupon the estate in tail male in the lands of Cloonboniagh, limited by the will of Matthew Nesbitt to Elizabeth Nesbitt, took effect, subject to the respective life interests of the Doyle family.

The said Elizabeth Nesbitt in 1829 inter-married with George Hamilton Beresford, of which marriage George de la Poer Beresford was the eldest son. Elizabeth Nesbitt died in the year 1847, leaving the said George de la Poer Beresford her surviving.

Matthew Doyle, the last surviving member of the Doyle family, died on the 16th March, 1905, whereupon the said George de la Poer Beresford became entitled to an estate in tail male in possession in the said lands of Cloonboniagh, and on the 11th July, 1913, he executed a disentailing assurance of the said lands.

By his will, dated the 8th May, 1911, the said George de la Poer Beresford devised and bequeathed to his trustees all his real and personal estate upon trust to sell the same at their discretion, and to pay thereout his funeral and testamentary expenses, debts, and legacies, and to invest the residue, and to pay the income to the testator's wife for her life, and after her death to hold the said residuary moneys and investments in trust for his daughter, the plaintiff in this action.

The said George de la Poer Beresford survived his wife, and died on the 7th October, 1913, leaving his daughter and devisee, the plaintiff, him surviving.

The defendants were tenants in possession of the lands of Cloonboniagh, save one, who had acquired a possessory title of non-payment of rent for upwards of twelve years prior to the action.

Neither George de la Poer Beresford nor the plaintiff ever entered into either possession or receipt of the rents and profits of the lands of Cloonboniagh.

The writ of summons, which was issued on the 18th of February, 1916, was endorsed with a claim for a declaration that the plaintiff was entitled to an estate in fee simple in possession in the town and lands of Cloonboniagh South, otherwise Cloonboynagh, in the barony of Mohill, and county of Leitrim, subject to the defendants' rights as tenants under the Land Acts. By the statement of claim, which was delivered on the 23rd day of November, 1916, and which set forth the plaintiff's title, the plaintiff claimed, in addition to such declaration, an order for delivery of possession of the lands.

The defendants by their defence denied that on the true construction of the will of the said Matthew Nesbitt the said George de la Poer Beresford, through whom the plaintiff claimed, ever was seised of or entitled to an estate tail or any estate in the lands; and they relied on the Real Property Limitation Acts, 1833 and 1874, and pleaded possession of the lands.

The defendants (other than James Reynolds) appealed to the Court of Appeal (1).

O'Connor M.R. :—

This action was brought substantially for the purpose of establishing the plaintiff's title to certain lands called Cloonboniagh or Cloonboynagh, situate in the barony of Mohill, county Leitrim.

The title is derived under the will of Matthew Nesbitt, dated the 14th October, 1812. This gentleman was the owner in fee of an estate comprising some seventeen townlands, of which the lands of Cloonboniagh formed one townland. By his will he devised all his lands to his only son, Francis Nesbitt, for life, and then to his heirs male, with remainder to the testator's daughter, Elizabeth Nesbitt, and her issue male, she and they and her husband taking the name and bearing the arms of Nesbitt, with...