Fee Simple Cases

Question 1

Re Lunham’s Estate [1870] (Court of Equity)

Answer 1

• Flanagan J:
• Facts of case
• 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

Question 2

Re McDonnell’s Estate: McDonell v McDonnell [1965] (HC)

Answer 2

• Budd J:
• Facts of case
  Behaviour Clause:
• Condition precedent or subsequent question – Re Greenwood MR
• Current case
• Has the condition occurred question
• Persons with discretion fail to act question – In Re Coe’s Trust
• Current case
  Validity of 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:
• Significant severity of restriction = Immediate family (children and their descendants)
• Billing v Welch
• Byrne v Byrne
• Lord Romilly in Attwater v Attwater –
• Crofts v Beamish
• Re Browne – Harmon J endorsed Attwater
• Follow those cases – Condition void

Question 3

Re Dunne [1988] (HC)

Answer 3

• O’Hanlon J:
• Facts of case
• Wylie textbook –
• Billings v Welch –
• PP

Question 4

Byrne v Byrne [1952] (HC)

Answer 4

• Budd J:
• Facts of case
• Absolute restraint in words of will
• Pearson J in Re Rosher – CoKe
• Billings v Welch
• Crofts v Beamish

Question 5

McConnell v Beattie [1904] (HC)

Answer 5

• Bart MR:
• Facts of case
• Marriage + no living child
• Restraint of marriage – Law encourages marriage

Question 6

Fitzsimons v Fitzsimons [1992] (HC)

Answer 6

• Keane J:
• Facts of case
• No cases referred to in judgment
• The condition is neither 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

Question 7

Motherway v Coughlan [1963] (SC)

Answer 7

• Kingsmill Moore J (SC):
• Facts of case
• Endorses HC – Residence condition void for uncertainty – Sifton v Sifton and Moffat v McCleary
• Clavering v Elliott – Kindersley VC
• Marriage condition there so farm still in family
• Dependant on residence condition

Question 8

Mackessy v Fitzgibbon [1993] (HC)

Answer 8

• Carroll J:
• Facts of case
• Presumption of early vesting
  Uncertainty Question:
• Re Hennessy
• Sifton v Sifton
• Moffatt v McCleary –
• Motherway v Coughlan – Residence condition within one year of testator’s death void for uncertainty

Question 9

Kearns v Manresa Estates Ltd [1975] (HC)

Answer 9

• Kenny J:
• Facts of case
• Re Montgomery (deceased) Jellett v Waddington
• De Vero Deceased, Jellett .v. O’Brien (1961) I.R. 224 – Budd J followed that reasoning
• CS - 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
• In re Neold, Carpentor .v. Inigo Jones (later CoA English case)
• No solution on what lapses Evershed means = Wilberforce, J. in reHowards Will Trusts
• Usually follow HC judges – Follow as not wrongly decided

Question 10

Re Burke’s Estate

Answer 10

• Gavin Duffy P:
• Facts of case
• Sifton v Sifton
• Meaning of ceasing practice unclear – Catholic fails to fulfil mass, fasting or sacraments duties – When ceases to practice uncertain? How many lapses permitted?

Question 11

Re McKenna: Higgins v BOI [1947] (HC)

Answer 11

• Gavin Duffy P:
• Facts of case
• Lord Parker, in In re Sandbrook. Noel v.Sandbrook
• Clayton v. Ramsden (HoL) – “Not of the Jewish faith” = Degree of adherence
• (CoA) – Lord Greene MR
• Lloyd v. Branton – Marriage underage, clause only applies under that age
• Duggan v Kelly same
• Current case