Seymour v Wallace – Second Trial, Dec. 1871

SOME EXTRACTS
FROM THE

RECORDS OF

OLD LISBURN

AND THE

MANOR OF KILLULTAGH.

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Edited by JAMES CARSON.

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LXXX.

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SEYMOUR V. WALLACE.

 SECOND TRIAL.

VERDICT AGAIN IN FAVOUR OF SEYMOUR.

Judgment in Court of Common Pleas, December 5th, 1871.

Chief-Justice Monahan delivered the unanimous judgment of the Court. It appeared from the evidence on the trial that the Hertford family had very large hereditary estates in England and Ireland; that a settlement was executed on the 2nd October, 1802, which embraced the Irish estates and also the English estates. By that settlement the estates were limited through all the limitations to the marquis for life, the remainder to his eldest son and other sons in tail, with several remainders over, the ultimate reversion in fee being vested in the then marquis himself. On the 9th September, 1837, a deed of revocation was executed, and a settlement between the then marquis, on the one part, and his eldest son and heir-apparent, Lord Yarmouth, of the other. The effect of that deed of revocation was this, that by it the Irish estates were limited to the marquis himself for life, with remainder in tail to the first and other sons of Lord Yarmouth, the ultimate reversion being Lord Yarmouth. That was in respect of the Irish estates. The English estates, on the contrary, were limited in strict settlement.

So the matter stood on the execution of the deed of the 9th September, 1837. At the time of the execution of that deed Lord Yarmouth was not seized in possession of any real estate, so far as he (the Chief-Justice) could see. He had settled on him under the deed of 1837 an annuity of £5,000 for the joint life of himself and his mother, with a life estate in the lands, but the ultimate reversion in fee of the Irish estates was vested in Lord Yarmouth. The property being so circumstanced, a codicil to the will was executed, on the construction of which the difficulty in the present case arose. The will bore date the 24th June, 1838, some few months after the execution of the settlement.

His lordship read the will, and said it was an important matter for consideration that the subject-matter of the devise was the Irish estates of which the Marquis of Hertford was then possessed, or of which he might be possessed at the time of his demise. To that extent it had a residuary application so far as the Irish estates were concerned, because it referred to Irish estates -- whether actually in possession, the remainder, or expectancy. Formerly no devise of real estate could carry more than the testator was seized of at the time of making the will; but at present a devise of real estate would take in all the testator might afterwards become seized or possessed of. That being the nature of the devise, the next question was the disposition of the property. Certain legacies and annuities were granted, and trustees were appointed; and if the personal estate should not prove adequate for the payment of the debts, annuities, and pecuniary bequests, power was given to raise a sum of money sufficient for the payment of those annuities and legacies.

His lordship referred in detail to the several trusts in the will. It appeared from the evidence that Sir George Hamilton Seymour, the devisee in the will, was not the heir-at-law. He was descended from the fifth son, while the marquis was descended from an elder son, so that there was the issue of one son between himself and the title. In addition to the limitations, the testator gave very large charging powers, and portions to younger children, which would lead one to the conclusion that the estates were of very considerable value to bear such heavy charges. There was one bequest of £30,000, which was to be invested in the public funds, the interest on which was to be paid to one Richard Jackson for life, subsequently to his children, and in default of issue to Richard Jackson absolutely. In addition to that, he bequeathed to a lady named Idle, who was resident in Paris, £12,000 a year during her life, the first payment commencing after his decease. He then made the bequest of his personal estate and effects, subject to the legacies mentioned and the payment of general and testamentary expenses, to Lord Henry Seymour, his executors, administrators, and assigns, for his and their absolute benefit.

Having made and executed this will, it would appear that no change was made in it while he remained Lord Yarmouth; but in the year 1842, his father having died, he became Marquis of Hertford, and entitled to estates in possession both in England and Ireland. Being so seized and possessed of this property, on the 1st of June, 1850, he executed a codicil. Then another. He described it as a further codicil to the last will and testament of Richard Seymour, Marquis of Hertford. By that codicil he gave to Madame Oger -- who was then living in Half Moon Street, Piccadilly, and who had her domicile in Paris -- £5,000 sterling, to be paid by his executors. By a further codicil, executed at the same time, he gave his house and paintings in the Rue Lafitte to this lady, Madame Oger. She was empowered to do what she pleased with it, except to sell it. It would also appear that the testator had a peculiar desire for multiplying testamentary documents, for on the one day it appeared he executed no less than four codicils, three of the four being for the benefit of this French lady. He also gave her an annuity of £2,000 a year for her life. The third codicil was all in the testator's handwriting. By the third codicil he bequeathed a sum of £10,000 to a young lady, a minor, who was then residing at Marley. On her attaining the age of 21 the money was to be handed over to her. A professional man appeared to have been employed for the preparation of that particular codicil.

Then there came a fifth codicil, dated 7th of June, 1850, six or seven days after the other. By that codicil he says -- "I hereby revoke the bequest contained in my will of the residue of my real and personal estate to my brother, Henry Seymour; and to reward Richard Wallace for his attention to my mother, and his devotion to me during a long and painful illness which I had in Paris, I give the same residue to Richard Wallace absolutely." That was the codicil on which the right to those large and extensive estates depended. The only other document completing the reference to the will was the probate, on which it appeared stamp duty to the amount of £6,000 had been paid. The personal property was sworn to be under £500,000. The deceased nobleman was described as of Warwick, Suffolk, Manchester, and Lisburn.

There being the will and codicil, the question which that Court had to decide was -- What operation, if any, the particular codicil had on the devise of the Irish estates contained in the will, and which estates were bequeathed or devised to his brother for life, which remainder to first and other sons, with remainder to daughters in tail also, and in default of all such issue, to Sir Henry Seymour for life, with ultimate remainder to himself? Before stating the conclusion the Court had unanimously arrived at, he would refer shortly to some of the cases cited on the construction of wills and codicils in determining what operates as a revocation. The Chief-Justice commented at length on the effect of the decisions in those cases as applicable to the present. These were the principles which they were bound to apply to the construction of the will and codicil in question, and he would state shortly the reasons which induced him and the other members of the Court unanimously to hold that the Irish estates do not pass under the devise of the fifth codicil. For his own part, he could say that during the arguments he entertained a very strong opinion the other way; but on a careful consideration of the words of the will and codicil, and the authorities bearing on the question, he had since formed, but he would not say a very decided opinion as to what the intention of the testator was. He had a strong opinion, however, as to what ought to be the judgment of the Court.

The codicil revoked the bequest contained in the will of the residue of the real and personal estate to his brother, Lord Henry Seymour. The first question was: What was the devise in the will expressly revoked by that clause? Was there in the will a bequest or devise at all of the real estates to Lord Henry Seymour? In his (the Chief-Justice's) opinion, there was not. He did not come to that conclusion on the grounds argued -- that the words were not sufficient to convey the residue of the Irish estates -- but bearing in mind that hey were construing the will of an English testator who resided in England, and was dealing with his Irish estates. The clause with which they were dealing was clearly not a devise of all his residuary estate. The revocatory part of the codicil was express in revoking only the devise to Lord Henry. If the testator had not added the subsequent part of the will, and if the question was between the heir-at-law and Sir George Hamilton Seymour, no one, he believed, could contend that the revocation of the life estate given to his brother, Lord Henry, would at all revoke the subsequent life estate given to Sir George Hamilton Seymour. On the contrary, he Would immediately take the estate under the will, and same would not pass to Sir Richard Wallace. But what did the codicil devise to Sir Richard Wallace? It says, "I give such residue to Sir R. Wallace." What is "such residue," then? It was perfectly plain "such residue" was the same residue of the real and personal estate contained in the will, and devised to Lord Henry Seymour. If the Marquis of Hertford intended to dispose of these Irish estates, which were the subject of very long, elaborate limitations in the will, he (the Chief-Justice) could not bring himself to the conclusion that he would not have, stated in the codicil that he was revoking the limitation, not merely so far as his brother, Lord Henry Seymour, was concerned, but also as to the ultimate remainder where Sir G. H. Seymour was concerned. Further, he believed if the marquis intended to dispose of such enormous estates, amounting to some £40,000 or £50,000 a year, he would have done so by such a codicil, and would have done so by such a codicil, and would have availed himself of the assistance of some professional man.

Then came the difficulty as to what was to be done with the word "real" contained in the codicil. It was difficult to give a satisfactory answer to that question. It was probable the testator did not know what the effect of the construction of it was. According to the legal construction of the words "my personal estate and effects," in his opinion it would apply only to personal estate, and would not pass real estate. He did not know what the knowledge of the Marquis of Hertford was, but he described what he revoked as "the residue of all my real and personal estates." Having given the best consideration he could to the case, he had come to the conclusion that, notwithstanding the words of revocation might be sufficient to pass the estate, yet he was not satisfied that such was the true construction of the words, or that it was the intention of the testator to pass these Irish estates.

The codicil should be clear and explicit and unambiguous in order to interfere with the clear disposition of the property in the will. In his (the Chief-Justice's) opinion, that did not exist in the present case. Therefore, the judgment of the Court should be in favour of the will and against the codicil, the cause shown to be allowed. Accordingly, the verdict entered in Antrim in favour of Sir George Hamilton Seymour stands, as the codicil did not clearly revoke the disposition of the Irish estates the will.

(Next Week: Third Trial.)


(This article was originally published in the Lisburn Standard on 26 April 1918 as part of a series which ran in that paper each week for several years. The text along with other extracts can be found on my website Eddies Extracts.)