The Fee Simple - Key Cases and Legislation Flashcards
s9(4) 2009 Act
“A fee simple remains freely alienable”
Re Lunham’s Estate [1870] (Court of Equity)
Flanagan J:
- Re Quinn
- Still void in this case
- Shepherd’s Touchstone by Preston
- Attwater v Attwater
- What about two parts or one part? Would they be good too?
- Repugnant to the free powers of alienation which every fee simple implies
Case Note – Re McDonnell McDonnell v McDonnell [1965] (HC)
- Budd J:
Behaviour Issue: - Condition precedent or subsequent question – Re Greenwood MR
- Current case – Phrasing
- Has the condition occurred question
– Persons with discretion to act question – In Re Coe’s Trust - Current case – No determination made about Patrick now dead so in his life had absolute estate in lands
Clause preventing the sale or assignment of the land to a person who is a member of the testator’s family or a descendant of a member of the testator’s family issue:
- Significant severity of restriction = Immediate family (children and their descendants)
- Byrne v Byrne
- Billing v Welch
- Crofts v Beamish
- Doe v Pearson; Lord Romilly in Attwater v Attwater
- Re Browne – Harmon J endorsed Attwater
- Follow those cases – Conditon void
Re Dunne [1988] (HC)
- O’Hanlon J:
- Wylie textbook
- Billings v Welch – O’Brien J = Sheppard’s Touchstone
- Public policy concerns
- Uncertainty of Meredith families identity and obligation to ensure future grantees not of that family
Re: Johnston [1986] NI 229
Property was left to a minor on condition that he reside on the property with his aunt. The aunt did not want him to live there.
Held: Void on public policy grounds – it is undesirable to separate parents from their children.
Court – Court will not encourage a pattern of gift giving that encourages underage children to be separated from their parents/guardians
Byrne v Byrne [1952] (HC)
- Budd J:
- Absolute restraint in words of will
- Pearson J in Re Rosher – Coke
- Billings v Welch – O’Brien J – Sheppard’s Touchstone
- Crofts v Beamish –
Re Burke’s Estate [1951] (HC)
- Gavin Duffy P:
- Sifton v Sifton
- Meaning of ceasing practice unclear
Re McKenna [1947] (HC)
- Gavin Duffy P:
- Lord Parker, in In re Sandbrook. Noel v. Sandbrook – Reasonable certainty i
- Clayton v. Ramsden (HoL) – “Not of the Jewish faith” = Degree of adherence
- Re Samuel Jacobs v Ramsden (CoA) – Lord Greene MR
- Duggan v Kelly – Inheritance revoked if ever married Catholic but only while under 21 years court adaptation
- Current case – No “at any time hereafter”; assumed daughter would marry before 21; Only if married Catholic while aged under majority which did not happen
Re: DeVere’s Will Trusts
Names and Arms Clause Which lapse is one too many?
Case Note – Fitzsimons v Fitzsimons [1992] (HC)
- Keane J:
- Not repugnant to the estate granted nor void for uncertainty as it does not prevent the plaintiff from selling all or part of the lands and is precise and unambiguous in its scope.
Kearns v Manresa Estates Ltd [1975] (HC) (Name and arms clause)
- Kenny J:
- Re Montgomery (deceased) Jellett v Waddington – Dixon J = Void for uncertainty because it was impossible to state when the disuse of the name which the person was bound to assume occurred.
- De Vero Deceased, Jellett .v. O’Brien (1961) I.R. 224 – Budd J followed that reasoning
- Condition subsequent as divests existing estate
- Lord Cranworth in Clavering v Ellison
- Fry J in Re Exmouth
- Sifton v Sifton endorsement of Fry J
- Must be able to know at any given moment has the beneficiary disused or discontinued to use (same thing) the required surname
- De Vere – Surname in writing void for uncertainty
- In re Neold, Carpentor .v. Inigo Jones (later CoA English case) – Allow
- No solution on what lapses from Evershed’s judgment = Wilberforce, J. in re Howards Will Trusts
- Usually follow HC judges – Follow as not wrongly decided
Re: Porter [1975] NI 157
The presumption in favour early vesting
McConnell v Beattie [1904] (HC)
- Bart MR:
- Facts of case
- Marriage + no living child
- Restraint of marriage – Law encourages marriage
Case Note – Re the Estate of Coghlan (deceased) Motherway v Coghlan [1963] (SC)
- Dixon J (HC):
- Marriage condition not void
- Residence condition indefinite – Void for uncertainty
- Kingsmill Moore J (SC):
- Endorses HC – Residence condition void for uncertainty – Sifton v Sifton and Moffat v McCleary
- Clavering v Elliott
- Duddy v Gresham –
- Marriage condition there so farm still in family
- Dependant on residence condition
- Ó Dálaigh J (SC):
- Man with a wife to take over the farm – One condition
- Two separate conditions contrary to the intention of the testator
Re the Estate of Fitzgibbon (deceased) Mackessy v Fitzgibbon [1993] (HC)
- Carroll J:
- Re Hennessy
- Sifton v Sifton (Reside in Canada)
- Moffatt v McCleary
- Motherway v Coughlan –
- A Beneficiary is entitled to know on what conditions his vested estate is liable to be divested.
- Take free of residence condition
