Marriage Settlement – Henry Hewitt O’Brien and Mary Roche 1807


To the Register appointed by Act of Parliament for Registring Deeds Wills & so forth

Memorial of an Indented Deed of Settlement bearing date the twenty seventh day October one thousand eight hundred and seven, and made between Henry Hewitt O Brien of Broomly in the County of Cork Esquire of the first part John Roche of Aghada in the County of Cork Esquire And Mary Roche Spinster only daughter of the said John Roche of the second part, and John Roche the younger of Aghada aforesaid Esquire and Stephen Laurence O Brien of the City of Cork Esquire Doctor of Physic of the third part and what was made previous to the Marriage of the said Henry Hewit O Brien with the said Mary Roche whereby the said John Roche did agree to give as a portion with his said Daughter Four thousand pounds Stock in the Irish five per Cent Funds, By which said Deed whereof this is a Memorial the said John Roche for the consideration therein mentioned Did grant Assigne Transfer and set over unto the said John Roche the younger and Stephen Laurence O Brien All that the said Four thousand pounds Stock in the Irish five per Cent Funds To hold the same unto the said John Roche the younger and Stephen Laurence O Brien and to the Survivor of them his Executors Admst & Assigns up [sic] Trust, to permit the said Henry Hewit O Brien and his Assigns during his life to take the Interest Money, dividends and produce thereof for his own uses and after his death, to permit the said Mary Roche (in case she shall happen to survive the said Henry Hewit O Brien) and her Assigns during her life to take the Interest Money, dividends or produce thereof for her own use, by way of Jointure from and after the death of the survivor of them the said Henry Hewit O Brien, and Mary Roche, as to the said Sum of four thousand pounds upon Trust for the Issue of such Marriage if any shall be, but in Case there shall be no Issue or in Case there should, and that all such shall dye before any of them shall be entitled to their respective shares of the said Sum, then as to the intire said Sum of four thousand pounds Stock in the Irish five per Cent Funds and all benefit to be had thereby, upon Trust, for the survivor of them the said Henry Hewit O Brien and Mary Roche his intended Wife, his, or her Heirs Exrs Admrs and Assigns and it is by sd Deed expressed that the sd John Roche the younger and Stephen Laurence O Brien shall when thereto required by the sd Henry Hewit O Brien invest the intire of the said Trusts Money, or any part thereof, in the purchase of Lands in Ireland which Lands when so purchased are to remain to the same uses and Trusts as are mentioned and expressed in every aspect as to the Trust Sum of four thousand thousand [sic] pound in the Irish five per Cent Funds To which Deed the said John Roche Henry Hewit O Brien & Mary Roche put their hands and Seals, Witness thereto and this Memorial are John Cotter of the City of Cork Merchant, and John Colburn of sd City Gent.


  Jointure – sole estate limited to wife, to be employed by her after her husband’s death for her life.

Roche v. O’Brien 1849



ROCHE v. O’BRIEN—Feb. 1, 2.

This was error from the judgment of the Court of Queen’s Bench. The action was in covenant by the heir-at-law of John Roche the lessor, claiming the reversion in fee against the assignee of William Roche, the lessee, who claimed as devisee of the reversion in fee after the estate tail created by the will of the lessor. The remaining facts appear sufficiently in the judgment of the court.   The whole question turned upon the construction of the Will and codicil of John Roche, which were as follows: 
       “Whenever it happens that the Aghada estate, is absent of male heirs, to wit, of the said James Joseph Roche, or by any other contingency reverts wholly to me, I hereby leave it in as full a manner as I can convey it to my nephew, William Roche, to be enjoyed by him and his lawful begotten heirs male for ever ; and, as I have perfected leases to be held in trust, of the demesne and two adjoining farms of Aghada, subject to a yearly rent accord-ing to a valuation made, I leave him my interest, if any I had, in those leases; and in case of his not coming into possession of the estate by the means before-mentioned,  I leave him  £6,000 of my £4  per cent. stock, to be held by trustees, the interest of which is to pay the rent of the demesne and two farms above mentioned; to my eldest grandson, James J.  R.  O’Brien   I leave   £10,000   £4 per  cent. stock; to my grand-daughter, Jane O’Brien, I leave  £4,000 £4 per cent. stock; to my daughter, Mary O’Brien,  I leave the  £4,000  £4 per cent. stock I settled on her as a marriage portion on her marriage, for her use and that of her younger children; to my niece,  Ellen Verling,  I leave  £1,000 £4 per cent, stock, with £30 a-year profit rent I leave on her brother Bartholomew Verling’s stores; to my grandson, J. Roche O’Brien, I leave also my interest in White Point, after his mother’s death;   I leave  £100 to my sister, Ellen Verling; to my sister, Julia Enery, £100; to my nephew, Doctor Verling,  and his sister, Catherine Ellis, £100 each,  and I desire the stock on the farm to be sold to pay these legacies; to my nephew,   William Roche, and my grand-daughter,  Jane O’Brien, I give my household furniture, plate, &c., and it is my wish, if the rules of our church allow it, that they should be married and live in Aghada house; may it bless and prosper them and their offspring. To the parish of Aghada, I leave the school-house, and £20 a-year for its support, and also the chapel and priest’s house  I leave to the parish rent-free for ever, as long as they shall be used for such qualified purposes; the five slate houses I built in the village, I leave to five of the poorest families rent free; to David Coughlan I leave the house he now lives in during his life; to my servant, James Tracy  I leave the house his wife now lives in;  and to my wife’s servant, Mary Ahearne, otherwise Finne, her house rent-free during their lives; and to each of those three, viz.,David Coughlan, James Tracy, and Mary Ahearne, otherwise Finne, I leave £10 a-year during their lives: having had unfounded confidence in my unhappy nephew, James Roche,  I did not take legal means under  the settlement I made to secure those last bequests out of the Aghada estate; I trust, and hope, and desire that whosoever is in possession of the estate do confirm these my wishes and intents. I appoint my trusty friend, Henry Bennett, (my present law agent) William Roche, and my daughter, Mary O’Brien as executors of this my last will.”

The codicil to the will was as follows :—

     By my will dated the 5th day of January, 1826, I appointed my friend Henry Bennett, my nephew, William Roche, and my daughter, Mary O’Brien, executors to that will; now, by this codicil, I annul that appointment, and appoint John Gibson, barrister-at-law, Bartholomew Hackett, of Middleton, distiller, and my nephew, William Roche, as my executors to that will, and do hereby empower them to name and appoint two trustees for the purpose of managing the sums I left to my nephew, William Roche, my grand-daughter, Jane O’Brien, and my grandson, J. O’Brien, as it is my intent and will that they should only receive the interest, and the principal to remain untouched during their lives, to go to their children; out of William Roche’s interest the rent of Aghada which I have leased him is to be paid ; and I desire that he and my grand-daughter Jane, who are shortly to be married, will reside there. I leave William Roche all the stock, &c., on the farm, and to him and his wife all my household furniture, plate, and china, and make them my residuary legatees ; it is my will that my grandson, James R. O’Brien, shall live with them at Aghada until he is of age, which is to be at the age of twenty-five, and not before ; and the trustees are to pay him until that period £100 a-year to complete his education, and another £100 a-year during that period to his mother, and the remainder of the interest of his £10,000 to be paid William Roche to assist him in keeping up Aghada during that period, and I trust by that time he will have a profession by which he will add to his income ; I request and desire that nothing shall prevent his following his profession ; it is my intention that William Roche and his wife shall step into possession of Aghada house, demesne, and farms, which are leased to him in the same way that I leave it when it shall please God to take me ; in case of the death of William Roche before his wife, she is to be paid the interest of her £4,000, to be made up £200 a-year as her jointure ; and if she dies before him, he is to have the £10,000, provided she has no issue; but if she leaves issue, it is to go to them after William Roche’s death, as before directed.”

   Sir С. О Loghlen for the plaintiff in error, the defendant below.—The question is, whether William Roche took an estate tail alone, or an estate tail with an expectant or reversionary fee. First, it is clear that the testator did not mean to die intestate, and, that nothing might be undisposed of, made William Roche and his wife residuary legatees. Secondly, that the testator having a contingent reversion in fee in the property, he devised it from his heir at law, and gave it to another, charging it in such a manner as to shew that whoever should have the property should take under the will. These charges cannot be enforced against the heir at law, as he takes by title paramount. Thirdly, that, having his heir at law in contemplation, he took from him that he would otherwise be clearly entitled to. He had most fully provided for him, and designedly gave the property to William Roche, for the purpose of founding a family of the name of Roche, who were to dwell in Aghada house. If the construction contended for by the plaintiff below be the true one, the manifest intention of the testator is wholly defeated. The reversion would not be disposed of; his heir would take at law, and not under the will ; and the estate would go to the very person he intended to deprive of it. The first portion of the sentence, ” I hereby leave it (the Aghada estate) in as full a manner as I can convey it,” conveyed the fee simple, and the subsequent words, ” lawful begotten male heirs for ever,” reduce it to an estate tail, with a reversion in fee. Chyck’s case, (Dy. 357, Pasch. 19, El.) That case, as reported in Dyer, is still law, and the case reported in Benloe, 300, and Anderson, 51 by the name of Baker v. Raymond, is not the same. In Abraham v. Twig, (Moore 425, 11 Jac.); Roberts v. Roberts, (2 Bul. 127, 13 Jac.) ; Blanford v. Blanford, (1 Rol. 320, 21 Jac.) ; Sergeant’s case, (2 Rol. 425) ; Herbert v. Thomas, (Har. and Wol. 434—per Littledale, J.) ; Doe d. Herbert v. Thomas, (3 Ad. & El. 128, Sheph. Touch. 445). All these authorities rely on Chyck’s case, as cited in Dyer. Daniel v. Uply, (Latch. 43,) is a decision to the same effect, by Doderidge, J., who was either at the bar or on the bench at the time of the decision of Chyck’s case. The following cases and authorities were also relied upon, and commented on during the argument—Turnman v. Cooper, (Cro. Jac. 476, S. C. Rol. Rep. 19, 23, S. C. Poph. 138; 1 Thomas’s Co. Litt. 518, 21 a.); Altham’s case, (8 Coke 154, b.) denied to be law in Turnman v. Cooper, (Pop. 138; Year Book, 21 Hen. 6, 723, b). (Blackburne, C. J.—That was the case of a deed where the whole estate passed from the grantor.) (Anon. Brownl.45) ; Holland v. Fisher, (O’Bridg. 212; 1 Steph. Black. Com. 460); Mellish v. Mellish, (2 В & C. 520) ; Barker v. Giles, (2 P. W. 279, S. C., affirmed on appeal ; 3 Bro. P. C. 297) ; Littleton & Ux v. Green, (4 M. & W. 229) ; Nanfan v. Legh, (7 Taun. 85, S.C. 2 Marsh. 107) ; Doe d. Ellis v. Ellis, (9 East. 382) ; Davie v. Stevens, (1 Doug. 321); Doe d. Murch v. Marchant, (6 Man. & Gr. 813).

   Chatterton, with him R. W. Greene, Q. C., and F. Fitzgerald, Q. C., contended—That, according to the true construction of the will, William Roche took only an estate tail. That the construction contended for by the defendant below would tend further to defeat the testator’s intention to found a family, than that sought to be put upon the will by the plaintiff, as the fee would be more easily alienated. That the devise shewed no intention of the testator to dispose of his whole property ; the words were, not my estate, but ” the Aghada estate,” words of description only. The charges made by the testator upon the devised estate would take place on the reversion, whether the estate be taken by descent, or under the will. That the reversion was disposed of, and that there was no general intention expressed in the will inconsistent with an estate tail. The learned counsel distinguished Chyck’s case, and Turnam v. Cooper, and cited and referred to Altham’s case, (8 Coke, 154, b.); Ossulton’s case, (3 Salk. 336) ; Baker v. Wall, (1 Lord Ray. 185) ; Doe d. Lord Lindsay v. Colyear, (11 East. 548) ; Slater v. Slater, (5 T. R. 335) ; Nanfan v. Legh, (2 Marsh. 107, S. C.; 7 Taun. 85) ; Davie v. Stevens, (Doug. 32l ; Co. Litt. 27, a.); Church v. Wyatt, (F. Moore, 637) ; Wood v. Ingersole, (1 Bul. 63) ; Doe d. Eustace v Earley, (1 Cr. M.& Ros. 823); Winter v. Perrott  (9 Cl. & Fin. 613) ; Angell v. Angell, (9 Q. В. 353)  ; Oddie v. Woodford, (3 My. & Cr. 584); Doe d. Ellis v. Ellis, (9 East. 382) ; Trenke v. Frencham. (2Dy. 171) ; Chilton v. Cooper, (2 B. & Ald. 610),

   Napier, Q. C., in reply—The court will effectuate the intention expressed on the face of the will. It is clear from the whole testament, the testator thought he was devising the property out and out. There is first a general expression conveying the fee, and the subsequent words cannot narrow it. By the ” Aghada estate,” he intended his whole interest, and to convey it ” in as full a manner as he could,” when he should become possessed of the reversion in fee, and the charges evidence that intention to deal with the whole. He referred to Randall v. Tuchin, (6 Taun. 418—per Chambre. J.) ; Moffet v. Catherwood, (AI. & Nap. 472) ; Cotton v. Stenlake, (12 East. 515).

   Feb. 2.—ВLACKBURNE, C. J., now delivered the judgment of the court.—This is an action of covenant brought by the plaintiff below as heir at law of John Roche, the testator, claiming the rent reserved in a lease executed by John Roche to Wm. Roche, whose assigns the defendants are, and the plaintiff below insists he is entitled to the reversion, as heir at law of John Roche. The declaration states a settlement executed on the marriage of the testator’s nephew, James J. Roche, limiting the estate to John Roche for life, remainder to James Joseph Roche for life, remainder to him in tail male, with the reversion in fee to John Roche, the settlor. It then states the will of John Roche, devising his reversion to William Roche in tail male, and the death of William and James without issue male, and traces the descent of the reversion to the plaintiff. The plea of the defendant sets out the will and the codicil of the testator, John Roche, in haec verba, on the construction of which the question in this case wholly depends. The plaintiff below alleges that Wm. Roche took only an estate tail, which has now determined. (The learned Chief Justice then read the words of the will.) It is not denied that the words in the devise give an estate tail, Lord Ossulton’s case, (3 Salk. 336,) puts this question beyond doubt. The addition of the word “for ever,” makes no difference. Baker v. Wall, (1 Ld. Raymond 185). Davie v. Stevens, (1 Doug. 320,) was a devise to A. of the ” fee simple and  inheritance of Lower Shelstone, to him and his child, or children, for ever.” The language of Lord Маnsfield is, every word, applicable to this case. Nanfan v. Legh, (7 Taunt. 85,) is a leading authority, and has a strong resemblance to this case, and there the devise was held to confer an estate tail, and no more, and for this position there will be found a large body of authority. The defendant below contends that there is a devise to Wm. Roche of two distinct estates, first, an estate in tail male ; and secondly, of an estate in fee expectant on the reversion. To maintain this view the sentence is divided in two, and the order of it inverted, for the purpose of avoiding the absurdity that would follow. I know of no authority for so altering the plain language of a will. The contract requires no such construction, but rather the contrary. I shall only say, that in all the reasons given in the cases for this construction, it never occurred that in a devise a sentence could be stopped in the middle. The judgment of my brother Crampton in the court below contains so able a review of Chycke’s case, that I shall not further refer to it. The judgment of Lord Ellenborough in Doe d. Ellis v. Ellis, (9 East. 882) which is now impugned by the defendant below contains a clear exposition of the law. No one can
read that case without seeing that it militates against the whole argument of the defendant’s counsel. Considering the whole will, we think the inference to be drawn from it is, that the testator intended W. Roche to take an estate tail only.

Judgment affirmed.


Aghada House 1

Lower Aghada
Lower Aghada

Aghada  is a small fishing town situated to the south-east of Cork city in County Cork, Ireland. Aghada parish consists of several small villages and townlands including  Rostellan, Farsid, Upper Aghada, Lower Aghada, Whitegate, Guileen and Ballinrostig.

Aghada  House was, apparently, a large  Georgian house designed by the Cork architect  Abraham Hargrave (1755-1808), and built for John Roche  (Ernest O’Bryen’s great grandfather) . It was completed in 1808. John Roche was also responsible for the start of the Aghada National School in 1819. John Roche appears to have left his house to his nephews, James Joseph Roche, and William Roche, who were, I think, cousins rather than brothers. William Roche died in 1836, and James Joseph and his family were living there until James’s death in 1847.

The estate, and the provisions of John Roche’s will were part of a court case, and appeal in 1848, and 1849. (Hillary Term 1848, Mary O’Brien v James Roche and William Roche…lands of Aghada [Mitchelstown Cork]… and Roche v. O’Brien —Feb. 1, 2. 1849) following the death of James Joseph Roche in 1847. 

The house and land were sold in July 1853 in the Encumbered Estates Court, as part of the estates of Joseph Roche, and William Roche, with Mary (Maria Josepha)  and Eleanor Roche listed as owners, and Pauline Roche as ex parte.

Entrance to Aghada Hall
Entrance to Aghada Hall

Most traces of Aghada Hall House seem to have disappeared, apart from signs of a walled garden, half  an entrance and a small gatehouse.  The old sheds and stables have been converted into houses.

The house appeared to have briefly in the possession of Henry Hewitt O’Bryen, and was then bought by Major General Sir Joseph Lucas Thackwell in 1853.  Thackwell had married Maria Audriah Roche (from the Trabolgan branch of the Roche family) in 1825. She was the eldest daughter of Francis Roche of Rochemount, County Cork (an uncle of Edmond Roche, 1st Baron Fermoy). They had four sons and three daughters.  She should not to be confused with Maria Josepha Roche, who was James Joseph Roche’s daughter, and one of the parties to the 1848/9 court cases.

The house was left to their son Major William de Wilton Roche Thackwell (1834-1910). He married Charlotte (daughter of Rev. Tomkinson).  William R. Thackwell lived in Aghada Hall house until 1894.Their eldest daughter Katherine Harriet Thackwell married Col. Edward Rawdon Penrose who in 1891 changed his surname by Royal Licence to Thackwell.  There is an account of their wedding on the Housetorian website.

It is still not entirely clear when the house was demolished.

Roche Of Aghado (sic) – BLG 1847

Roche Of Aghado

Roche, James Joseph Esq of Aghado House, co Cork b. 12 May, 1794 m in Nov 1821 Catharine youngest dau of the late Daniel Callaghan Esq of Lotabeg in the same county and has issue

  1. Maria Josepha
  2. Emily

Mr Roche, a magistrate for the co. Cork s. his uncle, the late John Roche Esq in March 1829. He and his brother Hugh, an officer in the navy, are sons of Hugh Roche, Esq by Anne, his wife dau. of Daniel McCarthy Esq, a Spanish merchant son of John  McCarthy Esq.  Seat. Aghado House co. Cork.

BLG 1847 p.1133