Weldon v Weldon

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 16 December 1910
• Date: 16 December 1910
• Court: Chancery Division (Ireland)

Weldon

and

Weldon.

Ross, J.

Appeal.

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.

Will — Construction — Devise in tail — Wills Act (7 Wm. 4, and 1 Vict. c. 26), sect. 29 — Failure of issue — Contrary intention — Absolute interest in chattels real.

A testator, after the Wills Act, and describing each gift as of “all my right, title, and interest” therein, devised and bequeathed real estate to his eldest son J., and to his heirs lawfully begotten. He also bequeathed to J. chattels real; and declared that, in case J. should die without issue lawfully begotten, the lands devised and bequeathed to him should revert to testator's second son T., and his heirs lawfully begotten. The testator bequeathed to T. chattels real, and declared that, in case T. should die without issue lawfully begotten, the lands bequeathed to him were to revert to J. Testator further declared that in case J. or T. should die without issue lawfully begotten, the entire of the said lands should be the property of the survivor or longest liver of them, and that in case both should die without issue, the said lands should revert to the testator's daughter R., and her heirs lawfully begotten, and that in case J., T., and R. should all die without lawful issue, the lands devised and bequeathed to J. should revert to the second son of testator's brother A. and to his lawful heirs, but in failure of such issue, then to the next son in priority of age, and so on successively in remainder, and the lands bequeathed to T. should revert to testator's brother B.'s eldest son and his heirs lawfully begotten, but in failure of such to his second or third son by priority of ages, and so on successively in remainder. And the testator declared it to be his will that neither J. nor T. should sell or dispose of any part of the said lands, but that same should remain the bona fide properties of them and their heirs for ever.

Held, by ross, J., and by the lord Chancellor, and Cherry, L.J., affirming his decision, that on the true construction of the will, the operation of sect. 29 of the wills act was excluded; that the words “die without issue lawfully begotten” meant indefinite failure of issue; and that consequently under the terms of the bequests of the chattels real, which would have conferred estates tail in real estate, J. and T. took absolute interests in the chattels real respectively bequeathed to them.

held, by Holmes, L. J., that the 29th section of the Wills Act applied to the bequests of the chattels real, and that J. and T. each took an absolute estate in the chattels real bequeathed to them, with an executory bequest to his brother in the event of failure of issue at the time of his death, and with a further executory bequest of all the chattels real to R. in the event of failure of issue of both J. and T. at the times of their respective deaths, with a final executory bequest to the testator's nephews in the event of failure of issue of R. at the time of her death.

Action by the plaintiff, Catherine Spaight Weldon, widow and universal devisee under the will of John Henry Weldon, deceased, to have the trusts of the will of his father, Thomas Weldon, declared and carried into execution.

The said Thomas Weldon made his will, dated 22nd December, 1848, the material parts of which as relating to the questions arising in the action were set out verbatim in the statement of claim and were as follows: “I leave and bequeath to my eldest son, John Henry Weldon, my right, title, and interest in part of the lands of Ballyellis, as held by the Earl of Listowel, and to his heirs lawfully begotten after the death of his mother; I likewise leave and bequeath unto my said son, John Henry Weldon, my right, title, and interest in the lands of Ahavrin in the county of Cork, Barony of Earl Muskerry, or the issues and profits arising therefrom, after paying his mother her claims thereon during her natural life, with liberty to settle a jointure on his wife at the rate of 10 per cent. he may receive in marriage portion; I further leave and bequeath unto my said son, John Henry Weldon, my right, title, and interest in the house and demesne of Riversfield, with all timber heretofore planted and copsed up by me and registered; I also leave and bequeath unto my said son, John Henry Weldon, my right, title, and interest in the small glebe farm of Ballingaddy, called Ballingaddy Bast Glebe; but in case he, the said John Henry Weldon, should die without issue lawfully begotten, then, and in such case, the said several lands and premises, as above-mentioned and dsscribed, are to revert to his brother, Thomas Pyne Weldon, and his heirs lawfully begotten. I leave and bequeath to my son Thomas Pyne Weldon, the mills of Kilmallock, with the lands adjoining, together with the mill fields and Crotta as described in lots 18, 21, and 22 in particulars of sale, and purchased by me for £1950 from the trustees of the late Sir Leonard Worsley Holmes; I likewise leave and bequeath to my son, Thomas Pyne Weldon, my right, title, and interest in the house and demesne lands of Greenfort, and other lands thereunto annexed in the county of Cork, with liberty to settle a jointure on his wife out of said places at the rate of 10 per cent. of every £100 he may receive as a marriage portion; I further leave and bequeath to my said son, Thomas Pyne Weldon, my right, title, and interest in the lands of Cooline in the county of Cork; and I also further leave to my said son, Thomas Pyne Weldon, my right, title, and interest in the two farms I hold near Kilmallock, called Deebert and Priant, in the liberties of said town; but in case he, the said Thomas Pyne Weldon, should die without issue lawfully begotten, then, and in such case, the said several lands and premises, as above-mentioned and described, are to revert to his brother, John Henry Weldon.”

After giving pecuniary legacies to testator's daughter, Rebecca Frances Weldon, the will continued, “but in case either of my said sons should depart this life without issue lawfully begotten, then and in such case the entire of my said lands and premises is to be the property of the survivor or longest liver of them; but in case both of them should depart life without lawful issue, then and in such case the whole of the said lands and premises already mentioned and described are to revert to their sister, Rebecca Frances Weldon, and her heirs lawfully begotten; but in case all of my children should depart life without issue, then and in such case those several portions or denominations bequeathed to my son, John Henry Weldon, are to revert to Robert Weldon, second son of my eldest brother Robert Weldon, and to his lawful heirs; but in failure of such issue then to the next son in priority of age, and so on successively in remainder; and those portions or denominations bequeathed to my son Thomas Pyne Weldon are to revert to my brother John Weldon's eldest son and his heirs lawfully begotten; but in failure of such to his second or third son by priority of age, and so on successively in remainder. And my further desire and will is that neither of my said sons, John Henry Weldon, and Thomas Pyne Weldon, or their heirs shall sell or dispose of any part of said bequeathed properties or estates, but to remain the bona fide property of them and their heirs for ever.”

The testator died on the 9th May, 1863, and letters of administration with the will annexed of his personal estate were granted to his two sons, John Henry Weldon and the Rev. Thomas Pyne Weldon.

The testator at the time of his death held Ballyellis in fee-farm, and the other denominations of land mentioned in the will for various chattel interests; and, except Greenfort, Deebert, and Priant, which had been surrendered, and Ballingaddy, of which the fee was acquired, they continued to be so held by John Henry Pyne and Rev. Thomas Weldon Pyne up to the time of their respective deaths, and afterwards, except the lands of Cooline, by the plaintiff up to the time of action brought; Cooline being in the possession of the defendant Francis C. Weldon.

John Henry Weldon intermarried with the plaintiff on 1st November, 1864. By settlement executed on the occasion of the marriage (but not enrolled), dated 31st October, 1864, he granted all the lands left to him by his father's will to trustees and their heirs in trust for himself for life, and after his death, subject to an annuity to the plaintiff, and in default of issue of the marriage (which event happened), in trust for himself, his executors, administrators, and assigns.

By deed poll dated 2nd August, 1876, the Commissioners of Church Temporalities in Ireland, in consideration of £850, granted to John Henry Weldon, his heirs and assigns, the fee-simple of Ballingaddy.

By disentailing deed, dated 29th March, 1890, and duly enrolled, John Henry Weldon barred the entail in Ballyellis, and in all other lands of which he was seised as tenant in tail under the testator's will.

Rev. Thomas Pyne Weldon made his will, dated 2nd June, 1893, and thereby gave and bequeathed his interest in the lands of Cooline to his cousin Francis Cornwall Weldon, and gave and bequeathed the rest of his property to John Henry Weldon. He died unmarried on 24th January, 1894, and probate of his will was granted to John Henry Weldon, one of the executors therein-named. By disentailing deed, duly enrolled and dated 3rd October, 1905, John Henry Weldon barred any estate tail in the lands derived by him under the will of the said Thomas Pyne Weldon.

John Henry Weldon made his will, dated 26th November, 1895, and thereby left and bequeathed all his property to the plaintiff. He died on 23rd November, 1907, without issue, and on the 3rd February, 1908, letters of administration of his personal estate with the will annexed were granted to the...