COURT OF QUEEN’S BENCH.
[Reported by S. V. PEET Esq., Barrister at Law]
HILARY TERM, 1856
IN RE: BAILLIE’s ESTATE – Jan 22.
NOTE: A second version of the same trial can be found in Irish Common Law Reports. Vol. V. 1857, pp. 394-403. The outcome is clearer in the second version with the addition of the following:
The Court gave the following certificate: --
We have heard the case argued by counsel on behalf of the petitioner, and of Robert E. Bailey and others, and we are of opinion that, upon the facts stated in the special case, Isaac Warren, therein mentioned, took an estate in that part of the lands of Annaghavackey, and in the lands of Trea, both in the County of Louth in his mortgage mentioned, for the life of William Bailey, and no other or greater estate.
NOTE: I have highlighted in yellow two indentures that I intend to find when I am next at the deeds Registry.
Devise – Construction-Meaning of word “issue.”
A, being seized in fee simple of X., devised to trustees in trust to assign, transfer, and make over to my son B, or to permit or suffer the said B to have, hold, occupy, possess, and enjoy the lands of X for and during the term of his natural life, but my will and desire is, that my said son B shall not have any power to let, set, mortgage, or incumber the same, or any part thereof, in any manner, but that he shall enjoy the rents, issues, and profits thereof during his life; and in case my said son shall die leaving lawful issue, in trust to assign the same to such issue, their heirs, &c., in such shares as my said son B shall by deed or by his last will and testament appoint; and in case my said son B shall die without lawful issue, in trust to permit and suffer my said sons C. and D., their heirs, &c., to hold and enjoy the said lands of X as tenants in common, and not as joint tenants, during my interest therein.” A published the same day a codicil, in which he declares that in case B continues to live in a state of concubinage or intermarries with Y., or keeps hounds, the issues and profits of the aforesaid device shall be vested in the hands of my trustees herein before mentioned for the use and enjoyment of C. and D. By a second codicil he desired that the property bequeathed to B shall be entirely in his power and control to will, devise, and bequeathed\\ the same to D. or is heirs, &c. C & D subsequently released to B their executory interests under the will, and he mortgaged the estate in fee. A petition having been presented in the encumbered estates court for a sale of the fee simple of the estate, cause was shown by the minor children of B, who had married since the date of the will, against making absolute the conditional order of sale, and a case was accordingly stated for the opinion of the Court of Queen's Bench on the construction of the will. Held that upon the construction of the will and codicils, B was tenant for life of X, with remainder to his issue living at the time of his death as tenants in common in fee.
Held also that the meaning of the word” issue” occurring in the clause of the will devising a remainder over to C and D, was to be expounded by the meaning which it bore in the preceding clause, in which it was restricted to issue living at the death of the devisee.
The following case was stated for the opinion of this court by the Incumbered Estates Court: --
Robert Ellis Bailie, deceased, being at the time of the making of his will and codicils hereinafter mentioned, and from thence to the time of his decease seized in fee of the lands of Annaghavackey and Trea situate in the barony of upper Dundalk and County of Louth, made and published his last will and testament and two codicils thereto, all in writing and duly attested, as by law then required, for passing real estate, bearing date respectively the first and third days of May, 1834, which will and codicils were in the terms following: --
“In the name of God, amen. I Robert Ellis Bailie of Shortstone, County Louth, gentleman, being weak in body, but of sound and disposing mind, memory, and understanding, do hereby revoke, and all, and make void every and all former and other will and wills, writing and writings testamentary by me at any time heretofore made, and to make and publish this my last will and testament in manner and form following: that is to say, I order and direct that my debts and funeral expenses may be paid by my executors, hereinafter named, as soon as convenient after my decease, and subject to the payment thereof and to the payment of the annuity provided for my wife, I will devise, give, and bequeath all my real, freehold, and personal property, goods, chattels, and effects of what nature and kind soever of which I may die seized, possessed of, or entitled unto Robert Murphy, Esq. and the Rev. Charles Atkinson to, for, and upon the several uses, trusts, intents, and purposes following -- that is to say, in trust to assign and make over onto my son, the Rev. John Bailey, his heirs, executors, administrators, and assigns, all my right, title, and interest of, in and to the lands of Clonaleenan, in the County of Louth, together with one half of the lands of Annaghavackey, or to permit and suffer my said son, John Bailey, his heirs, executors, administrators, and assigns, to have, hold, occupy, possess, and enjoy the same in every part thereof for and during my term and interest therein, and in trust to assign and make over to my second son, Robert Bailey, his heirs, executors, administrators, and assigns, or to permit and suffer the said Robert Bailey, his heirs, executors, administrators, and assigns to have, hold, possess, occupy, and enjoy all my right, title, and interest of, in, and to the lands of Shortstone in the County of Louth aforesaid, for entering my title or interest therein, and in trust to assign, transfer, and make over to my third son, William Bailie, or to permit or suffer the said William Bailie to have, hold, occupy, possess, and enjoy all that part of the lands of Annaghavackey, not heretofore devised, to my said son John, being one half, together with the lands of Trea, for entering the term of his natural life, but my will and desire is, that my said son William shall not have any power to let, sell, mortgage, or encumber the name, or any part thereof, in any manner, but that he shall enjoy the rents, issues, and profits thereof during his life; and in case my said son William shall die leaving lawful issue, in trust to assign the same to such issue, their heirs, executors, administrators, and assigns, in such shares and proportions as my said son William shall by deed or by his last will and testament appoint; and in case my said son William shall die without lawful issue, in trust to permit and suffer my said sons John Bailie and Robert Bailey, their heirs executors, administrators, and assigns, to hold and enjoy the said lands of Annaghavackey and Trea, as tenants in common, and not as joint tenants, during my interest therein; and I will and desire is, that my said sons, John Bailey, and Robert Bailey, and William Bailie, shall each pay a proportion of my just debts and funeral expenses, according to and in proportion to the value of the property devised to and for each of them; and my will and desire is, that all my goods and chattel property shall go to my said sons John Bailie, Robert Bailey, and William Bailie, and that my said son Robert daily shall have and be entitled to one half thereof, and my said sons John Bailie and William Bailie the other half equally between them, share and share alike; and appoint my said sons John Bailie, Robert Bailey, and William Bailey executors of this my last will and testament. In testimony whereof I have hereunto set my hand and seal this first day of May, 1834.”
“I Robert Ellis Bailie, of Shortstone, in the County of Louth, gentleman, do make this codicil my last will and testament the express meaning and intent of the property bequeathed to my third son, William Bailie is conditionally; that is to say in case my aforesaid son William continues to live in a state of concubinage, or intermarry with Mary Anne McLaren, or keeps hounds, the issues and profits of the aforesaid device made to him shall be vested in the hands of my trustees herein before mentioned, for the use and enjoyment of my other two sons, John and Robert, share and share alike. In testimony whereof I have set my hand and seal this first day of May, 1834.”
“I Robert Ellis Bailie do add this second codicil to my last will this 3rd day of May, in the year of our Lord 1834, the true meaning and intent of this codicil is, the property bequeathed to my third son, William, shall be entirely in his power and control to will, devise, and bequeath the same to his brother, Robert Bailey, or his heirs, executors, administrators, or assigns. In witness whereof I have subscribed my name and affixed my seal the day and date above written.”
On the fourth of May, 1834, the said Robert Ellis Bailie departed this life without having altered or revoked said will and codicils, leaving his three sons named in said will him surviving. Upon the decease of the said Robert Ellis Bailie, his third son, William, entered into possession and receipt of the rents of the part of the said lands of Annaghavackey, not devised to testator’s son, John Bailie, and of the said lands of Trea. That previous to the marriage of the said William Bailey, as hereinafter mentioned, and subsequent to the death of said testator, the said William Bailey did live in a state of concubinage with Mary Anne McLaren. In the year 1838, the said William Bailie married Miss Adelaide Louisa Guerin and, he having previously ceased any concubinage with the said Mary Anne McLaren, to whom he was never married; and of the said marriage with the said Adelaide Louisa de Guerin there is issue six children; namely Robert Ellis Bailie, Margaret Bailie, William Frederick Bailey, Jane Bailey, Henry Victor Bailey and Charles Bailey, who are all minors under the age of 21 years. The said William Bailey did keep hounds after his father's decease until the year 1839, but notwithstanding his so doing he continued in possession of the said part of the lands of Annaghavackey not devised to testator’s son, John Bailey, and of the said lands of Trea, without any interruption, disturbance, or demand, by or on the part of the said John Bailie and Robert Bailey, or either of them. By indenture bearing date the 16th day of November, 1840, and made between the said Rev. John Bailie and Robert Bailey, of the one part, and the said William Bailey, of the other part, after reciting the said will and codicils of the said Robert Ellis Bailie, and his death, it is witnessed that in consideration of natural love and affection, the said John Bailie and Robert Bailey did thereby demise, release, and forever quit claim unto the said William Bailey all the estate, right, title, property claim and demand which they then had or might therein after have, into, out of, or upon the said part of the said lands of Annaghavackey not devised to said John, and the said lands of Trea, as aforesaid, to the use of the said William Bailie, his heirs and assigns. By indenture of mortgage bearing date the sixth day of June, 1842, and made between the said William Bailey of the first part, the said John Bailie and Robert Bailey, of the second part, Hugh Campbell and James Campbell of the third part, and Isaac Warren (since deceased) of the fourth part, after reciting the said will and codicils of the said Robert Ellis Bailie, that the said William Bailey had upon his father's decease entered into possession of one half of the said lands of Annaghavackey, and of the said lands of Trea, and had so continued to the date of the said mortgage; and also reciting the fact of the marriage of the said William Bailey with the said Adelaide Louisa Guerin and, and that there was issue thereof several sons and daughters then in being; also reciting the said deed of release of the 16th day of November 1840, and a contract by the said Isaac Warren with the said William Bailey to lend him the sum of £1200, it is witnessed that in consideration of the said sum of £1200 paid by the said Isaac Warren to the said William Bailey and the nominal consideration of 10s. To the said John Robert Bailey, he, the said William Bailey, and also the said John and Robert Bailey, a acceding to their respective rights and interests therein, granted a release then to the said Isaac Warren in his actual possession then being, by virtue of a bargain and sale, and lease for a year therein recited, and to his heirs and assigns, all that part of the said lands of Annaghavackey not devised to the said John Bailey, and the said lands of Trea as therein described, to hold on to the said Isaac Warren, his heirs and assigns forever, subject to redemption by the said William Bailey his heirs and assigns on repayment of the said sum of £1200 with interest thereon, after the rate of £6 per cent per and annum. The said Isaac Warren having died, and Hugh Boyd having become his executor, presented his petition to the Commissioners for the Sale and Transfer of Encumbered Estates in Ireland for sale of the lands included in said mortgage; whereupon the said minor children of the said William Bailey and Adelaide Louisa Bailey, otherwise de Guerin, came into the said court, by their maternal grandfather as their guardian, and alleging by their counsel that the said William Bailey took but an estate for his life in the said lands preceding the limitation to his issue, shewed cause against the fee simple of the said lands being sold to discharge the said mortgage; whereupon the said commissioners are pleased to order that a case should be submitted to the justices of her Majesty's Court of Queen's Bench in Ireland for their opinion on the construction of the said will and codicils. The court of Queen's Bench is requested to give its opinion as to what estate or estates the said Isaac Warren took in the said lands under the said deed of mortgage.
[They cited Lodington v Kyme (1 Salk.224); Cooper v Collis, (3 T.R. 294); Hochley v Munbey, (1 Ves. Jun. 143); Lees v. Mosely, (1 Y & C Ex. 589); Greenwood v Rothwell (6 Beav. 492; s.c., 6 Sco. N.R. 672); Slater v Dangerfield, (15 M & W. 263).]
Jan 22 – LEFROY, C.J. [after stating the limitations of the will set out in the special case.] –
To this will two codicils were added; but before I proceed to observe on these codicils, it will be convenient to ascertain the nature of the provisions of the will itself. It is said on the one side the by the will William took an estate tail; on the other side it is contended that William only took an estate for life, with the remainder to his children living at the time of his death. Now the intention of the testator, as far as the law will allow it to operate, is a great governing principle for the determination of the nature of the estates limited by the will. As to the intention in the present case, there cannot be a doubt that it was that the inheritance should rest in the issue of William, and not in William himself; for, independently of the contrast presented by the mode in which the estate is limited to the heirs and assigns of the other sons, and the expressed limitations to William for life, is expressly debarred from having any power to dispose of the property during his life. With respect to the intention of the testator, unless it cannot, in consequence of certain rules of law, be carried into effect, the court will not control the devolution of the estate. There is nothing in the law to prevent a man giving an estate today for life, with remainder to his issue, as purchasers, if he shows by the context of the will that he does not mean an indefinite line of issue, but a certain limited portion only of descendents. Now what does the word “issue” stand for here? The words of the will are “In case my said son William shall die leaving the lawful issue in trust to assign the same to such issue, their heirs, executors, administrators, and assigns,” &c. the word “issue” would prima facie have gone to the whole extent; and in case of limitation had been simply to the issue, there would have been nothing to limit the meaning of that term by relation to a class of issue previously spoken of; but here the testator says that if William shall die having issue, then to convey the estate to such issue. By the word “such” I do not doubt he implied that the estate was to be shared among the issue left at the death of the devisee. The trustees were to assign the estate to such issue as William should leave at the time of his death. That was not to go to issue indefinitely. Now by a settled rule of law, when it can be ascertained that the testator has marked what he has meant by the word issue, the word must have that particular force. Therefore if the testator shall say generally that if the parent shall die “without issue” there shall be a device over the court made by the context apply the word “such” in case a device over it refers specially to the issue last spoken of. But though the court may do this, the testator here has not left this reference mere matter of conjecture , but he has himself supplied words which tie up the issue to mean “such issue” as existed the death of the devisee, and the givt to them, their heirs and assigns, in fee simple, is inconsistent with the notion of the grant of an estate tail to the first taker. All things connected with this device concurred to show that the testator did not by the word “issue” mean an indefinite line of issue. Then with respect to the word “issue” in the device over in default thereof; is that term to receive a construction different from that which he evidently intended? If so it would make him contradict himself, by giving at the same time to his son an inheritance in tail, and an estate in fee to his issue. We must not, therefore, by means of the terms of the limitation over, annul and render inoperative the former provisions of the will for giving an estate in fee simple to the issue as tenants and, in such shares as his son should appoint. On that part of the will and clearly of opinion that William took an estate for life. With respect to the limitation over, in case he died without issue living in his death, the estate was to go to his sons Robert and John, in fee simple, and these, I will observe, were to take a legal estate. Passing now from the will to the codicils, the first of these is dated the same day as the will itself; the second codicil bears date the 3rd May, 1834. The first question is, whether these codicils are to be taken as parcel of the will, or as amounting to revocations of it. It would be a waste of time to cite cases to establish a proposition so self-evident as that these codicils refer to the will, and simply modify its provisions in the matter therein mentioned. With respect to the first of them the meaning of it was, that the estate limited to William should be conditional upon his ceasing to live in a state of concubinage or to keep hounds, and that otherwise the “issues and profits” of the lands divised should be vested in the hands of trustees for the use and enjoyment of John Robert. The question is, whether that was not to operate merely on the life estate of William. The testator could not have restricted his condition to the life estate and more distinct terms than he has used. The words “issues and profits” are appropriate to the description of an estate of which there is an enjoyment only for a term of life. Are we did torture these words so as to visit their father's delinquency on his unoffending issue by the loss of an estate left to them? Is this condition to be construed to include issue? There is in this codicil no word whatsoever calculated to raise even a reasonable question on this head. That disposes of the question arising on the first codicil and then another remains with regard to the second. That is contended to raise an argument in favour of the construction sought to be given to the will with respect to an estate of inheritance having been left to William; but on the other hand it is said that the cause only meant to give William a power to appoint in fee. That is quite consistent with his having only a life estate; for we may recollect that the device over was to the two brothers in fee and this codicil than merely gave power to William to modify that device over to the brothers and to give the estate to one of them instead of to the two - a power which is quite consistent with the life estate of William. These instruments taken altogether, are capable of a natural construction, and one that is consistent with the rules of law and the authorities. The conveyance of the lands by deed of mortgage having been an innocent assurance, will not bar the remainders over and the mortgage will consistently take only the interest vested and William himself without disparagement to the children of William. We will accordingly certify to the Encumbered Estates Court the conclusion at which we have arrived.
 Robert Ellis BAILLIE. (1775-1834) SOURCE: http://www.faughart.com/inscriptions-page5466.html BAILIE Underneath this stone lieth the Remains of Robert Ellis Bailie Esqr of Shortstown who departed this life on the 4th day of May 1834 Aged 59 Years. Likewise of Margaret Bailie his wife who departed this life the 11th of August 1855 Aged [blank] years.
 Shortstone. There are two townlands: Shortstone East & Shortstone West, both in the Parish of Roche. I would expect that Shortstone West is the townland in question. In the 1854 Grifffiths Valuation, pretty much the whole townland is owned in fee by a Robert BAYLEY. The only part that is not is a house and small garden held in fee by Mary COULTER, who would have been the widow of Samuel COULTER who was murdered in 1851. He maiden name was BAILIE and I suspect that she was a sister of this Robert BAYLEY.
 His wife’s name is Margaret. SEE: obituary above for Robert Ellis BAILLIE.
 Robert MURPHY, Esq.
 Rev. Charles ATKINSON. Rector of Forkhill. SOURCE: Forkhill Protestants and Forkhill Catholics, 1787-1858. Kyla Madden. McGill-Queens University Press, 2005. SEE p 142. “The rector of Forkhill, Charles Atkinson, was amongst the subscribers to William Neilson’s Introduction to the Irish Language published in 1808.” also, p.99, in 1835 he had problems collecting tithes from Protestants in Creggan. p. 160, in 1817, he was in receipt of £30 in donations from the Jackson trust to aid after a failed harvest and an ensuing period of scarcity.
 Rev. John BAILEY (1806-1885). Eldest living son of Robert Ellis BAILLIE AKA BAILIE
· SOURCE: http://www.faughart.com/inscriptions-page5466.html BAILIE In Memory of Alicia the dearly beloved Wife of the Reverend John Bailie of Clonaleenan Rector of the Parish of Faughart, Who departed this life on the 5th day of July 1880 Aged 66 years and the Reverend John Bailie who departed this life on the 17th day of September 1885 Aged 79 Years. “There remaineth therefore a rest for the people of God.” Hebrews IV- 9.
· NOTE: PRONI has records under the Armagh Diocesan Registry for Faughart near Ballymascanlon that will likely be worth pursuing.
· "Faughart (J055 125, sheet 36) is a hill (and parish), just (a little over 5 kilometers) north of Dundalk. The hill is close to (and overlooking) the entrance to 'the Gap of the North' which once carried the main road from Leinster into Ulster through the hills of south Armagh. It was a place of immense strategic importance and has a very long and bloody history." (by Kevin Sweeney) Faughart Hill is within a kilometer of the Armagh-Louth border."SOURCE: http://www.magoo.com/hugh/louth.html#brief
· ALSO in the 1854 Griffiths Valuations for Co. Louth, A Rev. John BAILLIE held 161 acres and a house valued at £10 in fee simple at Clonaleenaghan. He also had 70 acres and buildings valued at £7 at Annaghvacky in fee simple.
· BAILLIE will abstracts at PRONI: The Will of the Reverend John Bailie late of Clonaleen County Louth Clerk who died 17 September 1885 at same place was proved at Armagh by John Cornwall Bailie of Jocelyn-street Dundalk County Louth Solicitor one of the Executors.
· Return of Number of Clergymen and Ecclesiastics in Irish Church commuted under Irish Church Act. Rev. John BAILIE of Clonaleenan, had a living as Rector of Faughart earning £138 6 10.
 Clonaleenan. A townland of 311 acres in the Parish of Creggan, Co. Louth. In the 1854 Griffiths Valuation, about half of Clonaleenan was owned by John & Thomas DICKIE. Rev John BAILIE held 161 acres and buildings valued at £6 0 0 in fee. NOTE: Another John BAILIE of Clonaleenan married a Dorothy SMITH and had eight children and a will in 1773. He could possibly be a grandfather of the aforementioned Robert Ellis BAILLIE.
 Annaghavackey. A townland of 369 acres in the Parish of Creggan, Co. Louth. In the 1854 Griffiths valuation, it seems that most of the townland is owned and leased to people who are related (DICKIE, BAILIE, BRADFORD, OLIVER). The total value was £283 1 0.
 Robert BAILEY I am guessing that he is the Robert BAILEY (1808-1895) who married Dora (last name not known).
· SOURCE: http://www.faughart.com/inscriptions-page5466.html In memory of Robert Bailie ESQre Shortstone Died April 26th April 1895 Aged 87 years. Deeply and deservedly regretted. Erected by his sorrowing daughters. Also Dora Bailie his loved wife died April 16th 1906. Peace perfect Peace.
· PRONI Will abstracts: Probate of the Will of Robert Bailie late of Shortstone County Louth Esquire who died 26 April 1895 granted at Armagh to Robert Ellis Bailie of Castleblayney County Monaghan Solicitor.
 William BAILIE (-1879)
· PRONI Will Abstracts: The Will of William Bailie late of Annaghavackey County Louth Gentleman deceased who died 29 October 1879 at same place was proved at Armagh by the oaths of Henry Victor Bailie Charles Edward Bailie and Alfred Bailie all of Annaghavackey Farmers the Executors. Effects under £50.
· Return of Murders committed in Ireland since 1842 Volume 35. A William BAILIE was recorded as victim of attempted murder.
 There is a Trea., a townland of 253 acres in the Parish of Creggan, Co. Louth. In Griffiths Valuation of 1854, A William BAILIE leases to a John and a Robert BAILIE house offices and lands on 10 acres with a valuation of £6.0.0. He also leases other acreages and buildings to others for a value of £59 6 0. He himself leases bogs from Reps of John DUNN covering about 10 acres. iInce the land in this court case keeps referring to Trea along with the townland of Annaghavackey, I had assumed the townlands to be in the same parish & Co. I could be wrong. Curiously, a deed dated Feb 12, 1835 refers to a William BAILLIE of Tray, (Parish of Donaghmoyne), Co. Monaghan.
 Mary Anne McLAREN.
 De GUERIN is a Huguenot name and settlers of this name were known to have arrived in 1676 (Benjamin Guerin). I have not found an entry for Adelaide Louisa de Guerin, except it is interesting that a Henry de Guerin and his wife Jane LEE are mentioned in a deed of assignment #786 577 532112 on November 11th, 1823 11 28 He was a French Professor, late of the City of Armagh. SOURCE: http://freepages.genealogy.rootsweb.ancestry.com/~registryofdeeds/by_name/name030.htm
Also: On the 6th inst [May 1818], at Armagh, Monsieur Henry DE GUERIST(AKA Henry Guerin in the 1820 Armagh Directory), French professor at the College of Armagh,[was married] to Jane Louisa daughter of the late Mr Joseph LEE of the same place. SOURCE: http://members.webone.com.au/~nickred/newspaper/np_abst24.htm What is also intriguing about this in terms of our family history is also the link of the surname LEE with the surname OLIVER in other documents.
 Robert Ellis BAILIE. Son of William BAILIE. Probably the Robert Ellis BAILIE who died in 1911. SOURCE: http://www.faughart.com/inscriptions-page5466.html In Memory of Robert Ellis Bailie Shortstone Who died 30th Dec. 1911 also his son Robert John Bailie who died 27th May 1919 aged 29 Years.
 Margaret BAILIE. Daughter of William BAILIE.
 William Frederick BAILEY. Son of William BAILIE.
 Jane BAILEY. Daughter of William BAILIE.
 Henry Victor BAILEY. Son of William BAILIE.
· PRONI will abstracts: Letters of Administration (with the Will annexed) of the personal estate of Henry Victor Bailie late of Annaghavackey County Louth Farmer who died 6 November 1893 at same place were granted at Armagh to Mary Jane Bailie of Annaghavackey Widow a Legatee. Effects £62 2s. 6d.
 Charles BAILEY. Son of William BAILIE.
 Hugh CAMPBELL
 James CAMPBELL
 Isaac WARREN I do not know who he was. NOTE An Isaac WARREN of Hillsborough was included as a convict in Middlesex in 1798 and deported in 1799. SEE: http://users.bigpond.net.au/CONVICTS/page85.html Also see: http://www.jbhall.freeservers.com/1649-1734_titchborne_to_young.htm for frequent occurances of the name WARREN in Co. Louth Freeholders.
 Hugh BOYD
 DEASY, Q.C.
 J.E. WALSH
 NAPIER, Q.C.,
 LEFROY, C.J.
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