The Earl of Tyrone v The Marquis of Waterford
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1860 |
| Date | 01 January 1860 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 499
BEFORE THE LORD CHANCELLOR LORD CAMPBELL AND THE LORDS JUSTICES.
S. C. 29 L. J. Ch. 486; 6 Jur. (N. S.), 567; 8 W. R. 454. On point as meaning of "land and property" (1 De G. F. & J. 625), see Guthrie. v. Walrond, 1883, 22 Ch. D. 576. On point as to nature of devise, see Bowen v. Lewis, 1884, 9 App. Cas. 897.
[613] the earl of tyrone v. the marquis of waterford. Before the Lord Chancellor Lord Campbell and the Lords Justices. March 10, 17, 24, April 28, 1860. [S. C. 29 L. J. Ch. 486 ; 6 Jur. (N. S.), 567 ; 8 W. R. 454. On point as meaning of "land and property" (1 De G. F. & J. 625), see Gutkric. v. IValrond, 1883, 22 Ch. D. 576. On point as to nature of devise, see Howen v. Lewis, 1884, 9 App. Gas. 897.] Under a testamentary gift " to my brother B. and to his children in succession": Held, upon the construction of the whole will, that B. took an estate tail in the freeholds and an absolute interest in the leaseholds and general personal estate. Debts due to the testator in respect of collieries belonging to him in the county of X. held to pass under a devise of all land and property belonging to him in the county of N. This was a special case transferred from the paper of the Master of the Rolls, and heard originally by the full Court of Appeal. The question submitted for the opinion of the Court arose upon the construction of the will, dated the 17th August 1852, of the late Marquis of Waterford, which was in the following terms :- " I, Henry Marquis of Waterford, make the following will:-I leave Ford Castle and all land and property belonging to me in the county of Northumberland to ray wife Louisa Ann, Marchioness of Waterford, for her life; and I desire that her jointure shall be paid out of my said property in the county of Northumberland. I desire that my debts, or interest upon them, shall be paid from the income of njy Irish property. I leave to my sister Sarah Conntesa Talbot, £1000 a year for her life to be paid out of the income of my Irish property. If my wife have a child by me, I leave to the said child all my property of every kind, except my wife's life interest in my property in the county of Northumberland, and except the Countess Talbot's life interest of £1000 a year in my Irish property. In case my wife has no children by me, I leave my Irish property, subject to all charges upon it, to my brother Lord John Beresford and to his children in succession; and in case my wife have no children by me, at her death I leave all my English property to my brother 500 EARL OF TYRONE V. MARQUIS OF WATERFORD 1DE Ck F. & J. 614. Lord John Beresford and his children in succession. I leave to my wife all my plate, [614] jewels and money which may stand to my credit at Messrs. Coutts on the day of my death," The testator died on the 29th March 1H59, without having had any issue, and his only brother Lord John Beresford succeeded to the title, and took out letters of administration of the personal estate of the testator with the will annexed, the Dowager Marchioness of Waterford having renounced administration. At the date of his will and of his death the testator was seised in fee-simple of freehold estates in the counties of Waterford, Londonderry, Kilkenny and Tipperary ; and of other freehold estates in the county of Northumberland, known by the name of the Ford Castle estates. He was also possessed of leasehold estates held for terms of years situate both in England and in Ireland and intermingled with his freehold estates in those countries. The relative values of his freehold and leasehold estates were as follows:-The annual rental of the Irish freeholds was about £30,000, that of the Irish leaseholds £46, 3s. Id., that of the English freeholds about £11,360, that of the English leaseholds £281, 13s. Id. He kept up a suitably furnished mansion-house and residence at Curraghmore in the county of Waterford, and another at Ford Castle in Northumberland. Both the Irish and the English estates were subject to large incumbrartces. At the time of his death his personal estate (exclusive of leaseholds for years, and of his plate and jewels, and of his balance with Messrs. Coutts) consisted of arrears of rent of the testator's estates in England and Ireland, of live stock, house furniture and effects, colliery materials, colliery debts due to the estate, cash in England and Ireland, balances at the testator's [615] bankers in England and Ireland, and a reversionary share of a fund in the Court of Chancery in England in a suit of Beresford v. Armagh. The only persons entitled under the Statutes of Distribution to the personal estate of the late Marquis of Waterford were his brother, the present marquis, his widow, the dowager marchioness, and his sister the Countess of Shrewsbury (in the will called, and at the date thereof being, the Countess Talbot). The Earl and Countess of Shrewsbury had disclaimed all interest in the testator's personal estate; and the present marquis and the dowager marchioness had made certain arrangements with one another on the assumption that the residuary personal estate was not disposed of by the will. The Plaintiff was the Earl of Tyrone, the eldest son of the present Marquis of Waterford, an infant, by his special guardian Admiral Eden. The Defendants were, the present Marquis of Waterford, the Dowager Marchioness of Waterford, the widow of the testator, and the three other of the four sons and only children of the present Marquis of Waterford, by their guardian the Honourable E. Kenyon. The questions for the opinion of the Court were :- 1. To what interests have the present Marquis of Waterford and his children become entitled in the freehold estates and chattels real of the late marquis by virtue of the said gift, "to my brother Lord John Beresford and to his children in succession 1" 2. Whether any and what portions of the personal estate of the late marquis (other than hig chattels real, his plate, his jewels and his balance with Messrs. Coutts) passed by his will, and to whom and for what interests 1 [616] Mr. Roundell Palmer and Mr. H. T. Erskine, for the Plaintiff. Upon the true construction of the will, the real estate is given to the present Marquis of Waterford for life, with remainder to his sons in tail general successively in strict settlement; and the chattels real and general personal estate to the present marquis for life and then to his sons successively in tail, so that upon the death of the tenant for life, they would vest absolutely in the Plaintiff. The word " children " is not used in the sentence "to my brother Lord John Beresford and his children in succession " as a word of limitation, but as a word of purchase. In the earlier part of the will where the testator says, " in case my wife have no children by me," the word "children" is used in the ordinary sense of that word, nor is there any context in this will which requires a different construction to be put upon it in the subsequent clause; and in Ridgmoay v. Munkittrick (1 Dru. & W. 84, 93), Lord St. Leonards said, " It is a well-settled rule of construction, and one to which, from...
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