Francis Sewell Cole, - Appellant; Thomas Birmingham Daly Henry Sewell, and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 21 August 1848 |
| Date | 21 August 1848 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 1062
House of Lords
Mews' Dig. v. 420; vii. 23, 46; x. 1013, 1015; xii. 991; xiv. 1554, 1561; S.C. 12 Jur. 927; and, below, 2 Con. and L. 344; 4 Dr. and War. 1; 6 Ir. Eq. R. 66. Considered (i) on point as to remoteness in Abbiss v. Burney, 1881, 17 Ch. D. 217; In re Frost, 1889, 43 Ch. D. 246; Whitby v. Mitchell, 1890, 44 Ch. D. 91; and cf. Monypenny v. Dering, 1852, 2 De G. M. and G. 168; (ii) as to "survivor or survivors," in In re Palmer's Settlement Trusts, 1875, L.R. 19 Eq. 325.
Deed of Settlement - Limitations - Contingent remainder - "Survivors and survivor" - Construction of Deeds - Effect of Recitals.
[186] FRANCIS SEWELL COLE,-Appellant; THOMAS BIRMINGHAM DALY HENRY SEWELL, and Others,-Respondents [Feb. 2, 4, 22, and 23, 1847; August 21, 1848]. [Mews' Dig. v. 420; vii. 23, 46; x. 1013, 1015; xii. 991; xiv. 1554, 1561; S.C. 12 Jur. 927; and, below, 2 Con. and L. 344; 4 Dr. and War. 1; 6 Ir. Eq. R. 66. Considered (i) on point as to remoteness in Abbiss v. Burney, 1881, 17 Ch. D. 217 ; In re Frost, 1889, 43 Ch. D. 246; Whitby v. Mitchell, 1890, 44 Ch. D. 91; and cf. Monypenny v. Dering, 1852, 2 De G. M. and G. 168; (ii) as to "survivor or survivors," in In re Palmer's Settlement Trusts, 1875, L.R. 19 Eq. 325.] Deed of Settlement-Limitations-Contingent remainder-" Survivors and survivor "-Construction of Deeds-Effect of Recitals. Lands, held in fee simple, were, by settlement made in 1752, conveyed to trustees, to the use of the settlor for life; remainder to the use of his three daughters for their lives, as tenants in common ; remainder to the use of trustees to preserve; remainder, as to the share of each daughter, to the use of her first 1062 COLE V. SEWELL [1848] II H.L.C., 187 and other sons successively in tail male; remainder, in case of the death of any one or more of the daughters without issue male, to the use of the survivors or survivor, during their or her respective lives or life, as tenants in common in case of two survivors, with remainder, in like manner as to the original share, to the use of the first and other sons of such surviving daughters or daughter in tail male; remainder, in case all the daughters should die without issue male, as to the share of each, to the use of their daughters as tenants in common in tail; and in case one or two of the settlor's daughters should die without issue, the share or shares of such daughter or daughters, to go to the use of the daughters of the survivors or survivor, as tenants in common in tail general; and in case all three should die without issue, then remainder over, with ultimate remainder to the use of the settlor in fee. He died soon after without disposing of the reversion : - Held, that the limitation, in case of the failure of issue, generally, of any of the daughters* to the daughters of the survivors or survivor, was a good contingent remainder, and therefore not void for remoteness : And also, that the words " survivors or survivor " were to be read " others or other," and, consequently, the limitation over to the daughters of one of the settlor's daughters, who had issue, was not defeated by the death of that daughter in the lifetime of another, who subsequently died without issue, but that limitation took effect as a good cross-remainder. One only of the settlor's daughters had issue, four daughters and no son; L. E. S., one of the four, in 1779, while her sisters, mother, and aunts were living, executed a post-nuptial settlement, which recited the said deed of 1752-and another of 1749, under which she was entitled to a vested estate tail in lands called the B. estate, on the death of her father-and that she was entitled in remainder or reversion, expec-[187]-tant and to take effect in possession on the determination of certain prior estates, to several parts of lands in the deed of 1752 mentioned. It also recited a postnuptial settlement of 1776, in which were recited L. E. S.'s title to certain shares in remainder or reversion expectant, etc., and her desire to limit and assure the same, and that it was thereby witnessed, that in order to bar the estates in remainder or reversion expectant and to take effect in possession as aforesaid, then vested in her, but without prejudice to the prior estates, she and her husband covenanted to levy fines of her said undivided shares in remainder, to enure to these uses, namely, that the trustee should, out of the hereditaments comprised in the deeds of 1749 and 1752, first falling into possession, take an annuity of £300, and out of those next falling into possession, a similar annuity, both being for L. E. S.'s separate use, and, subject thereto, to the use of her husband for life, remainder to herself in fee. It further recited that no fines were levied under the deed of 1776, and that L. E. S. was desirous of securing payment of certain debts, and, subject thereto, of settling the said remainders and reversions expectant and to take effect as aforesaid, for the benefit of her two children, and had agreed to settle the same, and all her right and interest in the premises, to the uses thereinafter mentioned; and it was, by the deed of 1779, witnessed that, in order to bar the estate tail in remainder or reversion expectant upon and to take effect as aforesaid, then vested in L. E. S. in the hereditaments comprised in the deeds of 1749 and 1752, without prejudice to the prior estates, the said L. E. S. and her husband covenanted to levy fines of all her undivided shares in remainder or reversion expectant, and to take effect as aforesaid in the said hereditaments, to enure to trustees for 1000 years, to raise the amount of the aforesaid debts; remainder to other trustees for 1500 years, to raise £5000 for L. E, -S.; remainder to other trustees for 2000 years to raise an annuity of £100 out of the lands first falling into possession, and a similar annuity out of those next falling into possession for maintenance of her only son; remainder to trustees for 3000 years, to raise £3000 for her only daughter; remainder to the use of the son and his issue, in strict settlement; remainder to the use of the daughter and her daughters in tail: - Held, that all the estates and interests, contingent as well as vested, in the lands 1063 II H.L.C., 188 COLE V. SEWELL [1848] to which L. E. S. was entitled under the limitations of the deed of 1752, passed and were bound by the deed of 1779, and the fines that were levied in pursuance thereof. The settlor's three daughters died-one in 1784, s.p., another, the mother of L. E. S., in 1793, the third, in 1799, s.p.-all intestate and without having disposed of the reversion [188] vested in them by descent. One of L. E. S.'s sisters died in 1788, intestate and without issue. In 1809 one-third of the lands comprised in the deed of 1752 was, on partition, allotted to L. E. S., and by a decree for sale made in 1820, in a suit instituted against her by the trustees of the term of 1000 years comprised in the deed of 1779, it was declared that the whole of the one-third so allotted was subject to the trusts of the term, and bound by that deed, and the fines levied in pursuance thereof. By a deed executed in 1825, it was witnessed that for barring all estates tail therein mentioned, and settling the lands therein comprised, L. E. S. and her husband and a trustee of the deed of 1779, conveyed all the said one-third part, so allotted in severalty to L. E. S. as aforesaid, and also her undivided third part of the B. estate (which had then by the death of her father come into possession) to a trustee, that recoveries might be suffered of the said lands, and it was covenanted that they should enure, as to such of the said undivided parts as were comprised in the deed of 1779, to the uses therein mentioned, and in confirmation thereof and of the term of 1000 years; and-after reciting that three specified denominations of lands of which L. E. S. was stated to be seized in tail in remainder, at the date of the deed of 1779, were not comprised therein or in the fines levied in pursuance thereof, and reciting the said suit and decree for sale therein made, and that L. E. S. had agreed to make the said denominations subject to the said term-it was further agreed and declared that the said recoveries should enure to confirm the sale of the said three denominations for the said term, and to give validity to the said decree, and, subject to the said term, to such uses as L. E. S. should appoint, and, as to the lands comprised in the deed of 1779, to such further uses as had not been thereby declared concerning the same, as L. E. S. should by deed or will appoint: - Held, that by this deed, and the recoveries suffered in pursuance thereof, the whole of the lands allotted in severalty to L. E. S. on the partition, except the said three denominations, were made subject to the uses of the deed of 1779. This was an appeal from a decree of Sir Edward Sugden, Lord Chancellor of Ireland (1 Drury and Warren, 1; see also 5 Irish Law Rep. 190). Peter Daly, formerly of Quansbury, in the county of Galway, Esq., being in, and previously to, the year [189] 1752, seized in fee simple of several towns and lands called " the Quansbury " or " Daly estate," conveyed the same by lease and release, dated respectively the 4th and 5th of February, 1752, unto Thomas Lord Athenry and James Daly, and their heirs, to the use of him, Peter Daly, for his life, with remainder,-subject to a trust term thereby created and long since satisfied,-to the use of his three daughters, Honoria, wife of Viscount Kingsland, Anastasia, wife of Charles Daly, afterwards the Earl of Kerry, and Margaretta, wife of the said Thomas Lord Athenry, for their respective lives, as tenants in common, with the usual limitation to trustees to preserve contingent remainders, with' remainders...
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