H. T. 1842. O'CONNOR v. BURKE. MR. SHERLOCK moved that the Taxing Officer should be directed to review his taxation, and allow a 10s. stamp on the memorial of the assignment of a judgment, which he had disallowed, as having been, in his opinion, abolished by the late Stamp Act. He moved on a notice directed to the Taxing Officer, and which notice stated that an application would be made for the costs of the motion. Mr. John Brooke, Q, C., appeared for the Taxing Officer, and protested against going into the motion, as his client was a Judicial Officer of the Court, who had decided on a matter submitted to his discretion. DOHERTY, C. J. 4 Although we may send for the Officer in question on a motion of this description, yet no other party has a right to call on him to appear before us; and if it were permitted on this occasion, he would be liable to be brought in on any objection, no matter how trifling, that might be made in future to his taxations. be refused with costs. Let the motion as against the Taxing Officer H. T. 1842. Jan. 23,24, 26. By a deed executed in 1752, P. D. couvey COLE v. SEWELL and others. THIS was a case sent for the opinion of the Judges of this Court, pursuant to a decretal order of the Lord Chancellor. The following were the facts stated:-By deed of release of the 30th of December 1749, to the use of executed on the marriage of Thomas Bermingham (afterwards Earl of himself for life,. ed his D. es tate to trustees remainder to h's three daughters H. L. K., M. L. L., and A. L. K. for their respective lives, share and share alike, remainder to trustees to preserve, remainder to the respective first and other sons of the said daughters in tail male in succession. And it was provided, that in case any one or two of the said daughters should happen to die without issue male of her or their body or bodies, then as to such part or parts of the said lands of her or them so dying, to the survivors or survivor of the said daughters as tenants in common, in case of two survivors, during the respective lives or life of such survivors or survivor; and after the determination of the respective estates of such survivors or survivor, to trustees to preserve, with remainder to the first and other sons of such survivors or survivor in tail inale; and in case of said daughters dying without issue male, then as to their respective shares to the use of their respective daughters in tail general; and in the event of one or two of the said daughters dying without issue, then as to her or their share or shares, to the use of the daughters of such survivor or survivors, share and share alike, as tenants in common of the respective shares of such survivors, in case of two survivors, to the daughters of such survivor, in case there be but one, in tail general; and in the event of all dying without issue, remainder over, with ultimate remainder to the right heirs of P. D.-P. D. died shortly after the execution of said deed, without having made any disposition of the reversion in fee. H. L. K. died in 1784 without issue. M. L. L. died in 1793, leaving three daughters (a fourth having died in infancy in 1788), of whom L. E. S. was one-and A. L. K. died in 1799 without issue. Held, that in 1779, L. E. S. was entitled, under the foregoing settlement, besides a vested remainder in tail in one-fourth of her mother's one-third of the D. estate, expectant upon the death of her mother and aunts, without issue male, to a contingent remainder in tail in one-fourth of each of the respective one-thirds of her aunts (H. L. K. and A. L. K.), of the said D. estate expectant upon their demise respectively without issue. In 1779 the said L. E. S. executed a postnuptial settlement, in which were recited the foregoing deed of 1752, and another settlement of 1749, under which she was entitled to a vested estate tail in the B. estate on the death of her father; and that L. E. S. was entitled to divers shares in remainder or reversion expectant upon, and to take effect in possession after the determination of certain prior estates in several parts of the lands thereinafter mentioned. It also recited another postnuptial settlement of 1776, in which was recited the title of L. E. S. to certain shares in remainder or reversion expectant, and her intention to limit and assure the same, and witnessed that in order to bar the estates in remainder or reversion expectant, and to take effect, as aforesaid, then vested in her, without prejudice to precedent estates-she and her husband covenanted to levy fines of the said undivided parts, &c., to enure to the following uses, viz., that the trustee should, out of the hereditaments comprised in the said deeds of 1749 and 1752, first falling into possession, take an annuity of £300, and out of those next falling into possession, take a similar annuity for her separate use, and subject thereto to the use of her husband for life, remainder to herself in fee. The deed of 1779 then went on to recite that no fines had been levied under the said deed of 1776, and that L. E. S. was desirous of securing payment of certain debts, and subject thereto, to settle the said remainders and reversions expectant, and to take effect as aforesaid, for the benefit of her two children-a son and a daughter-and had agreed to settle the same, and all her right and interest to the premises, to the uses thereinafter mentioned. And it was 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., without prejudice to the estates prior to said remainders, &c. then vested, the said L. E. S. and her husband covenanted to levy fines of all her undivided shares, &c., in remainder or reversion expectant, and to take effect as aforesaid in the B. and D. estates, to enure to trustees for 1000 years, to raise the amount of the aforesaid debts; with remainders to other trustees for 1500 years, to raise £5000 for L. E. S.; remainder to trustees for 2000 years, to raise an annuity of £100 out of the Louth) the eldest son of Francis Lord Athenry, with Margaret, one of the daughters of Peter Daly, certain estates, called the Bermingham estates, were limited as to certain parts thereof, to the said Francis Lord Athenry for life, with remainder to the said Thomas Bermingham for life; and as to the remaining parts of the said estates, to the said Thomas Bermingham for life, with remainder, as to the whole of the said estates, to the first and every other son and sons of the said Thomas Bermingham and Margaret Daly in tail male-remainder to the first and other sons of Thomas Bermingham in tail-remainder to the daughters of Thomas Bermingham and Margaret Daly in tail general-remainder to the right heirs of Francis Lord Athenry for ever. Francis Lord Athenry died in 1750, leaving the said Thomas, his only son, him surviving. The said Peter Daly, by deed of release of the 5th of February 1752, in consideration of natural love and affection for his daughters, Honoria Viscountess of Kingsland, the said Margaret, afterwards Countess of Louth, and Anastatia, afterwards Countess of Kerry, conveyed the Daly or Quansbury estates to trustees, to the use of himself for life-remainder to trustees, for a term of 99 years-remainder, subject to said term, to the use of his said daughters, for their respective estate first falling into possession, and a similar annuity out of that next falling into possession for the maintenance of her said son, remainder to trustees for L. E. S. for life, remainder to other trustees for 3000 years, to raise £3000 for the said daughter, remainder to the use of the said son and his issue in strict settlement, remainder to the use of the said daughter, and all other daughters in tail general-and no remainder over. There was also a covenant on the part of the husband to pay the said debts, in the event of the death of L. E. S. and all her issue, before the death of her father, and before the death of the survivor of the three daughters of P. D., so that the term of 1000 years could not vest. Fines were levied in 1779, in pursuance of the covenant in the foregoing deed. Held, that all the estates and interests (contingent as well as vested) in said D. estates, to which L. E. S. was entitled under the limitations of the settlement of 1752, passed under and were bound by the said settlement of 1779, and the fines levied in pursuance thereof. A partition having been made in 1809 of the said D. estate, one-third of the same was allotted to L. E. S.; and in 1814 a bill was filed by the trustee of the term of 1000 years in the said deed of 1779, claiming the whole of the lands allotted to L. E. S., as comprised in the term, and L. E. S. insisting, by her answer, that one-fourth only was affected by the settlement of 1779; on a reference it was reported by the Master that the whole was subject thereto, and a final decree was accordingly pronounced for a sale of the whole of the said one-third of the D. estate. Afterwards, by a deed executed in 1825, it was witnessed that for the barring all estates tail thereinafter mentioned, L. E. S. and her then husband, conveyed all the said D. estate allotted in severalty to L. E. S., and an undivided one-third of the said B. estate (which had come into possession) to a trustee, that two recoveries might be suffered of 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 in the said deed mentioned, and in confirmation of it, and in particular of the term of 1000 years; and after reciting that three specified denominations of the land were not comprised in the deed of 1779, or the fines levied thereof, and the said equity suit, and the decree for a sale of the lands therein, and in the deed of 1779 recited; and that L. E. S. had agreed to make the said denominations subject to the said term and the trusts thereof, it was agreed and directed that the said recoveries should enure to confirm the sale of the said three denominations for the term of 1000 years, and to give effect and validity to the said decree, and subject to the said term, to such uses as L. E. S. should appoint. And, as concerning the lands comprised in the indenture of 1779, to such_further aud other uses as had not been thereby declared of and concerning the same, as L. E. S. should by deed or will appoint. Held, that the whole of the Daly estate, which was allotted in severalty to L. E. S. by the partition, save only the three omitted townlands, was limited and made subject to the uses of the said settlement of 1779, by the said deed of 1825, and the recoveries suffered in pursuance thereof. H. T. 1842. COLE v. SEWELL. H. T. 1842. COLE v. SEWELL. lives, share and share alike, as tenants in common; and after the determination of their respective estates, remainder to trustees to preserve contingent remainders-remainder to the use of the respective first and other sons of the respective bodies of the said daughters in tail male in succession. And it was provided, that in case any one or two of the said daughters should happen to die without issue male of her or their body or bodies, then as to such part or parts of the said thereby granted and released lands of her or them so dying without issue male, to the use of the survivors or survivor of the said daughters as tenants in common, in case of two survivors, during the respective lives or life of such survivors or survivor; and after the determination of the respective estates or estate of such survivors or survivor, to trustees, to preserve contingent remainders, with remainder to the first and other sons of such survivors or survivor in tail male. And in case the said daughters should die without issue male, then as to their respective shares, to the use of their respective daughters as tenants in common of the respective shares of their respective mothers in tail general. And in the event of one or two of the said daughters dying without issue, then as to the share or shares of such daughter or daughters so dying without issue, to the use of the daughters of such survivor or survivors, share and share alike, as tenants in common of the respective shares of such survivors, in case of two survivors, to the daughters of such survivor, in case there be but one, as tenants in common in tail general, And in the event of all of the said three daughters of Peter Daly dying without issue, remainder over-with the ultimate remainder to the right heirs of the said Peter Daly. Peter Daly died soon after the execution of the foregoing deed, without having made any disposition by will or deed, of the reversion in fee of the Daly estates, leaving his three daughters him surviving.* All of the said daughters of Peter Daly died intestate, and without having made any dispositions of the reversions in the said estates; and Lady Kingsland and Lady Kerry never had any issue. A deed was executed on the 23rd of February 1779, being a postnuptial settlement on the marriage of Lady Elizabeth Bermingham with Mr. Sewell, in which were recited the settlements of 1749 and 1752, and that Lady Elizabeth was entitled in remainder or reversion expectant upon and to take effect in possession after the determination of certain prior uses, estates, and limitations of or to several parts, &c., of the lands thereinafter mentioned. It also recited another postnuptial settlement of the 15th of June 1776, in which was recited the title of Lady Elizabeth to certain shares in remainder or reversions expectant, and her intention to limit and assure the same, and witnessed that in order to bar, dock, and destroy the estates in remainder or reversion For state of the pedigree see next page. |