Interpretation of Wills
Cases Extrinsic Evidence
Carroll v Barry
Circuit Case.
21 March 1906
[1906] 40 I.L.T.R 122
Madden, J.
Wicklow, March 21, 1906
Madden, J.
It is contended for the plaintiff that, as the new road was in existence when the will was made and fully answered the description, there is no latent ambiguity on the face of the will, and, therefore, no extrinsic evidence is admissible to show that another road was meant. On the other hand it is urged for the defendant that the description in the will is ambiguous, and that evidence is admissible to show what the testator really intended. Clearly the description in the will is capable of two meanings, as the words “bounded on the east by the Dublin road from the bridge at Ashford” might mean either the old road or the new, and, accordingly, it is open to the defendant to produce evidence to show which road the testator meant. Thus, where there was a devise of “my Briton Ferry estate,” the acts and dealings of the testator were held admissible in evidence to show what the testator included under the name. [Refers to Theobald on Wills.] In order to determine which Dublin road the testator meant I must place myself as nearly as possible in the position of the testator and consider what his knowledge of the surrounding facts and circumstances were. In a lease made in his lifetime he referred to the old Dublin road, and from the evidence it is clear that he was familiar with that road and not with the new one. I, therefore, have come to the conclusion that it was the old road the meant, and I must reverse the decision of the Court below.
Wellwood v Wellwood. (No. 2.)
High Court of Justice.
Chancery Division.
21 February 1898
[1899] 33 I.L.T.R 18
Porter M.R.
Feb. 21, 1898
Porter, M.R.
I think that Mr. Johnston has argued this case extremely well, though I must decide against him on the facts proved. It is true that the testator in his will does speak of two farms only, and there may be ambiguity as to what he meant. But it is a question, therefore, of latent ambiguity, and evidence is admissible to show what the farms are. He was entitled to three holdings—one was held for his father’s life, and his father was alive when the will was made. It was held under Lord de Vesci. He had another holding also under Lord de Vesci as tenant from year to year. His third farm at Lisbigney was held under a different landlord, but there is no doubt that this was one of those farms referred to in his will, and the only question is whether the farm of Clonking means the holding at Clonking proper, of which his father was tenant for life, or includes also Stoneyfield. Attent on has been drawn to the fact that the title to all accrued under the deed of 1881, and this fact is of considerable importance. It has been stated that in the Court of Appeal, when the construction of another portion of this will was before them, reference was made to the expression “give up,” and it was held that that unusual form of expression had reference to an intended surrender. That is obviously correct. There is a reference, or enough to show that the testator had before his mind something that had been previously done. His father had disposed of Clonking for his own life, and beyond that he, the testator, could not legally dispose of it, though he no doubt might assign the goodwill of the tenancy. The deed recites, “Whereas the said Joseph Wellwood is seized or possessed of an estate as tenant for life in the 1st schedule”—that is the farm of Clonking —“and is possessed of an estate or interest as yearly tenant in the premises described in the 2nd schedule”—that is Stoneyfield and the Lisbigney farm, which are grouped together in one recital, and, therefore, in the recitals Clonking and Stoneyfield are recited as two things. When we come to the schedules—in the first the Clonking farm is set out, and in the 2nd schedule Stoneyfield and Lisbigney are grouped together as tenancies from year to year. But Stoneyfield is not described as a separate farm, and the argument based on that supposition fails. The case comes to this—Did the testator, as a matter of fact, intend Stoneyfield to pass under this devise? There would be an intestacy as regards it if it be not incuded. Is it likely that he would intend to die intestate as regards this holding? No reason can be assigned for his so doing. I cannot conceive that it was his intention that Stoneyfield should be left out of the devise, which immediately adjoined the dwelling where he lived; the map proved shows this, though it is divided by the road, and it was always occupied along with Clonking as one farm. The cattle were transferred from one to the other, and I have no doubt that the property was described as part of the farm of Clonking, and that it was always used as one farm with it, and commonly so called. *19 Questions like this used to arise more frequently in reference to wills before the Wills Act, because then a devise of lands prima facie did not carry leaseholds, but it was never held to interpose difficulties in the way of holding, in the case of a gift of a farm by will, that several denominations held by different tenure passed. At least it was always a question of intention, and under a gift of “my farm” everything passed that the testator was in the habit of working as his farm. For some purposes Stoneyfield might no doubt be spoken of as a separate farm (as has been sworn in this case), and there would have to be a separate occupation as regards the landlord. But that is beside the question as to whether the farm was called, and worked as, one farm. I am satisfied that it was, and I am of opinion that Stoneyfield passed under the gift of the farm. Both parties will be allowed their costs.
Rowe v. Law
[1978] IR 62
O’Higgins C.J.
20th January 1978
The testatrix died on the 10th June, 1972, having made her last will and one codicil on the 6th June, 1967, of which probate was granted to a solicitor, the first defendant, on the 6th March, 1973. The testatrix was twice married. She was married first to Patrick Rowe who died many years before the date of her will. She then married Walter Doran from whom she was separated at the date of her will; she had been separated from him for some years before that. She had no family. For many years prior to the date of the will the second defendant and the third defendant resided with the testatrix and worked as labourer and domestic help respectively. They so resided as James Morgan and Mary Germaine because they were then unmarried; they have married since the death of the testatrix.
These proceedings have been brought by the testatrix’s two brothers-in-law who are named in the will as residuary legatees and devisees. They seek to determine certain questions which arise on the construction of the main portion of the will.
In the construction summons the questions raised are as follows:”Does the phrase ‘any balance then remaining’ contained in paragraph 2 of the said will mean (a) any balance remaining out of the sum of one thousand pounds after the purchase and furnishing of a suitable cottage residence for James Morgan and Mary Morgan (in will referred to as Mary Germaine) or (b) any balance remaining out of the capital moneys of the Trust Fund after the purchase and furnishing of such cottage . . .”
If these questions were to be determined in accordance with the law prior to the Succession Act, 1965, certain principles of construction would have applied. These would have ordained that the meaning of the words used was to be sought in the will itself, that the words used should be applied in accordance with their plain grammatical meaning and that extrinsic evidence would be inadmissible to assist in the construction.
As to the inadmissibility of extrinsic evidence, paragraph 25 of the 13th edition of Theobold on Wills states: “This is a basic principle of long standing which has a number of exceptions and much depends on whether or not the exceptions can be prayed in aid. Where the meaning of the will, from the words used, is clear, it is not possible to look at extrinsic evidence. However, when the meaning is not clear, it may be permissible to ‘sit in the testator’s armchair’ and take account of the circumstances surrounding the testator at the time of making the will in order to assist in its interpretation. It may thus be possible to look at the facts known to the testator at the time he made his will concerning the persons and property mentioned therein as an aid to construction. The range of admissible surrounding circumstances may determine the nature of the result. Extrinsic evidence may also be admissible in one or two other cases, for example, to explain latent ambiguities or to rebut certain presumptions of law.”
Paragraph 427 of the same work states: “It has been said, that to construe the will of a testator ‘you may place yourself, so to speak, in his armchair and consider the circumstances by which he was surrounded when he made his will to assist you in arriving at his intention.’ But this proposition must be accepted with several reservations. What has to be done is first to construe the will. The meaning placed upon the language used as the result of this process cannot be altered by reference to the surrounding circumstances when the will was executed. The procedure is notfirst ascertain the surrounding circumstances and with that knowledge approach the construction of the will, but first construe the will; if the meaning is clear, surrounding circumstances cannot be looked at to throw a doubt upon that meaning, or to give the will a different meaning . . .”
It seems to me that these two passages set out correctly the common law with regard to the construction of a will. Applying these statements of the law to the will of the testatrix, what is the position? One looks for the meaning of the words “as to any balance then remaining” in the will itself and one applies these words in their ordinary grammatical sense. Extrinsic evidence would not be admissible unless the meaning were obscure or unless ambiguities existed, or in order to rebut certain presumptions of law. In this case no presumption of law requires rebuttal. Is there, then, in the language used any ambiguity or any uncertainty? It seems to me that there is not. In relation to the setting aside of £1,000 out of the trust fund, the testatrix appears to have established three separate trusts providing for its application and eventual disposal. These three trusts are specified under the same numbered paragraph in the will and they provide first for the initial use of £1,000; then “as to any balance then remaining” provision is made for the investment of it in some trustee security and the payment of the income to the second and third defendants during their lives; then it is provided that, after the death of the survivor, the £1,000 or the investment representing the same is to go to the parish priest. In all of this the meaning appears to be clear. There exists no such ambiguity as would permit the introduction of extrinsic evidence. Looking only at the terms of the will itself, no one could doubt that the words”as to any balance then remaining” refer only to the balance of the £1,000 then remaining.
Therefore, in accordance with the law as it existed prior to the Succession Act, 1965, extrinsic evidence would be excluded. This will would be construed according to the plain meaning of the words and it would be held to mean that merely the balance of £1,000 went to the second and third defendants for their lives. It would also be construed as giving the residue of the trust fund to the plaintiffs absolutely and immediately. This would be so even if clear and unequivocal evidence were available to show that such was not what the testatrix wished or intended by the words she used. While having the advantage of finality, such a state of the law also had the obvious and grave disadvantage of frustrating at times the known intentions of testators. The law reports abound with cases in which this must have occurred. I will refer to two as examples.
In Higgins v. Dawson 10 the testator, when he made his will, was the owner of some real estate, plate, and china and of two mortgage debts amounting to £13,187, and of nothing else except the accruing interest on the mortgage debts. By his will he made gifts of the real estate, plate and china. He then gave a number of legacies amounting to about £10,000. These were followed by a gift of the residue of the mortgage debts after payment of his debts to a charity. The question was whether the residue of the mortgage debts meant what might remain of the mortgage debts after paying thereout first the legacies and secondly the debts, or whether it meant what remained after paying debts only. Upon the latter construction, if the testator had died the next day, all the legacies would have failed, as there was nothing out of which to pay them. As a matter of fact the testator had, between the date of his will and his death, become entitled to other property which was not sufficient to pay the legacies in full. Approaching the will with a knowledge of these facts, the conclusion was almost irresistible that the legacies were meant to be paid out of the mortgage debts and that “residue” must mean residue of the mortgage debts after paying the legacies as well as the debts. However, it was held that the evidence was inadmissible. It was held, in accordance with the principles applying to the construction of a will, that the prima facie meaning of the word “residue” as used in the will was residue deducting debts and that meaning could not be altered by reference to evidence.
In re Julian 7 was a case where a Protestant lady by her will bequeathed a sum of money to “The Seamen’s Institute, Sir John Rogerson’s Quay, Dublin” and the bequest was subsequently claimed by two bodies, namely, the Catholic Seamen’s Institute, Sir John Rogerson’s Quay, Dublin, and the Dublin Seamen’s Institute, Eden Quay, Dublin. On the hearing of the summons, issued by the executors for the determination by the court of questions arising on the construction of the will, it was sought to prove the intention of the testatrix by the introduction of parol evidence of her religion, of her association with one of the said institutes, namely, the Dublin Seamen’s Institute, Eden Quay, and of a mistake, on the part of the solicitor who engrossed the will, in regard to the address of the institute as appearing in the will. It appeared that the testatrix, in the course of her instructions to the solicitor, expressed her doubt as to the correct address of the institute whereupon the solicitor consulted a book of reference in which the only seamen’s institute mentioned was that situate at Sir John Rogerson’s Quay, Dublin. It was held by Kingsmill Moore J. in the High Court that the parol extrinsic evidence could not be admitted to show the intention of the testatrix because, on the language used, no doubt could exist as to the description of the institute to be benefitted. Accordingly, in accordance with the ruling that the extrinsic evidence was inadmissible, the clear intention of the testatrix was frustrated and the benefit of her gift went to the Catholic Seamen’s Institute, Sir John Rogerson’s Quay, and not to the Seamen’s Institute, Eden Quay, with which she had been associated.
At the end of his judgment (p. 66) Kingsmill Moore J. said: “This is by no means the firstand, equally certainly, will not be the lastcase in which a judge has been forced by the rules of law to give a decision on the construction of a will which he believed to be contrary to the intentions of the testator. The law reports are loud with the comments of judges who found themselves in similar plight; but I consider the law to be well established and conclusive that I must reject Mr. O’Brien’s evidence and, in the absence of such evidence, I must hold that the Catholic Seamen’s Institute is entitled to the bequest.”
With cases such as these in mind it is not surprising that some modification of the apparent inflexibility of the common law should have been attempted by statute. The exclusion of extrinsic evidence of the intentions of testators in accordance with the common-law principles had produced too many cases in which a will was given a construction which was the complete antithesis of what the testator had intended. In my view, such a modification was one of the purposes which the Oireachtas had in mind when it came to enact the provisions of s. 90 of the Succession Act, 1965, which states:
“Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.”
This section, with its marginal note describing it as a new section, was obviously intended to effect a change in the law as it existed at the passing of the Act of 1965. In considering the meaning of this section in his judgment in this case, Mr. Justice Kenny said: “The first question then must alway be whether the will is ambiguous or contradictory. If it is, extrinsic evidence (in the sense in which I have defined it) is admissible as a result of s. 90; if it is not, this evidence is not admissible.” I cannot agree with this view. In my opinion the clear purpose of this section is to give primacy to the actual intention of the testator and to construe the will in accordance with that intention.
Obviously, the ideal construction of any will or document is the one which reflects accurately and exactly the intention of the person who made it. In the absence of evidence to the contrary, it must be taken that a document made by a person reflects his intentions. The important statutory change brought about by s. 90 of the Act of 1965 was to ensure that this could be tested. The section made it mandatory to admit evidence to show the intention of the testator when it came to a question of construing a will. If the section had only intended to do little more than put in statutory form the common law as it existed prior to the section, it would have been worded very differently. It is to be particularly noted that the section makes special mention of the contradictions in the will itself which, as the punctuation indicates, is something quite different from the portion of the section preceding that provision. It is also to be noted that s. 99, which also imports a new rule of interpretation into the construction of wills, expressly deals with devises or bequests admitting of more than one interpretation. The fact that that particular problem has a special section to itself leads one to conclude with absolute certainty that it was not intended to be covered by section 90.
If s. 90 had existed when In re Julian 7 was decided the result would have been otherwise, and I have no doubt that it was passed for the purpose of dealing with that kind of case. Of course, if the section were to be interpreted in the manner in which the learned trial judge interpreted it, no change would be possible in cases such as In re Julian 7 because, as in this case, the words used in the will are unambiguous and clear and no contradiction exists.
It appears to me clear that s. 90 of the Act of 1965 was drafted to provide for two contingencies: the first where there is a contradiction in the will itself and the second where there is a contradiction between the actual intention of the testator and what was said in the will, given its pre-1965 construction. This latter category would, of course, cover and include situations in which an error had been made by a solicitor or other person writing down the will.
When one looks at the legislative history of this particular Act, one must be fortified in the view that this is the correct construction of the section. When the Bill for the Act was first introduced in the Oireachtas, this subject matter was dealt with in s. 89 of the Bill. This provided that “extrinsic evidence shall be admissible to assist in the construction of a will or to explain any contradiction therein.” As the Bill progressed through the Oireachtas, amendments were made to this particular section. The first amendment referred to “extrinsic evidence of the intention” and provided that such should be admissible. The final version provided that “extrinsic evidence shall be admissible to show the intention of the testator” and this, of course, is what is incorporated in s. 90 of the Act of 1965. As passed, the section expressly provides for extrinsic evidence to show the intention of the testator where no such words had been contained in the corresponding section of the Bill as introduced. It seems clear that in the section as enacted an indissoluble link has been created between the testator’s intention and the construction of the will.
In fact a true construction of the will cannot be other than a true reflection of the intention of the testator. If there is a difference between them, then it is indisputably clear that the actual intention of the testator has not been reflected in the construction of the will. As the law stood before 1965, it was not possible to ensure against such an event and there is ample evidence to show that in many cases construction of particular wills did not reflect the intention of the testator. The problem before the Oireachtas was to change the law to enable that position to be achieved, i.e., to get rid of the general rule which rendered inadmissible any such extrinsic evidence for the purpose of ascertaining the actual intention of the testator as well as for the purpose of explaining contradictions within the will itself. It is to be noted that the explanatory memorandum published with the Succession Bill (as passed by both Houses of the Oireachtas), having quoted in paragraph 56 the terms of s. 90, contains the following statement: “At present, extrinsic evidence of a testator’s intention is, in general, inadmissible, although there are exceptions to this rule.”
In arriving at the view that the effect of s. 90 is to get rid of the common-law rule which rendered inadmissible extrinsic evidence for the purpose of ascertaining the actual intention of the testator as well as for the purpose of explaining contradictions in the will itself, I am satisfied that the ordinary reading of this section leads to that result. I am, however, fortified by the knowledge that the legislative history of the measure, particularly the express introduction of the phrase “to show the intention of the testator” before the Bill was finally enacted leads inevitably to the same conclusion. To hold otherwise would, in my opinion, be to run directly contrary to the clearly expressed mandatory provisions of section 90. The words used do not, in my view, permit any court to treat the introduction of extrinsic evidence as to the actual intention of the testator as an exception only, the admissibility of which lies within the discretion of the judge.
The Oireachtas has chosen, and understandably so, to sacrifice the certainty of literal interpretation with its frequently attendant capricious results, in favour of the somewhat more difficult but more understandable task of ascertaining the testator’s actual intention. For this reason extrinsic evidence must be admitted (where it is sought to do so) to “show” the intention of the testator and “to show” the meaning of the will, and thereby to “assist in the construction” of the will. This may mean in particular cases a substantial change in what has been the practice up to this, but this is what the legislature has ordained.
In my view, however, what is permitted is evidence of the testator’s intentions as such and that is evidence of his intentions when he came to make his will. Previous expressions of intent or evidence of general disposition would not be admissible nor would, I believe, evidence of subsequent statements by the testator of what his intentions had been at the time he made his will. What is permitted by the section as extrinsic evidence of intention is what was said and done at the time of the making of the will as indicating a testamentary intention at that time.
In this ease what is in issue is what the testatrix meant by the words “any balance then remaining” which appear in paragraph 2 of her will. There are available two accounts of what her testamentary intention was when she made this will. One of these accounts is contained in the attendance docket prepared by her solicitor as a record of her instructions to him for the preparation of her will. One assumes that this attendance docket can be supported by the oral evidence of the solicitor. The other account is contained in an affidavit from the testatrix’s brother-in-law, Fr. Francis Rowe, referring to the same attendance upon her solicitor and giving a conflicting account of what her instructions to him were. Fr. Rowe’s account of what the testatrix said as indicative of her intentions appears to support the actual construction applied by the learned trial judge having regard to the language used. On the other hand the attendance docket, if it contains a correct account of what the testatrix wished and intended, indicates that quite a different meaning should be attached to the words “any balance then remaining.” In my view, the true meaning of these words in this will ought not to be considered and cannot be determined without ascertaining what was the true intention of the testatrix at the time she proceeded to make her will. This will entail the resolution of the conflict between the solicitor’s account of what was said and that of Fr. Rowe. Obviously this conflict must be resolved and, once it has been resolved, the will must be considered in the light of the evidence as to the true intention of the testatrix.
In my view, the learned trial judge ought to have permitted extrinsic evidence to be adduced in relation to the construction of this will. In my view, accordingly, his decision ought not to stand and I would order a rehearing of this construction summons in the High Court directing that such extrinsic evidence as may be available with regard to the testatrix’s intention ought to be admitted. I would allow this appeal.
Henchy J.
The chief point arising in this appeal may be stated in this form: where there is a clear and unambiguous disposition in a will of portion only of a fund, and there is extrinsic evidence available in a court of construction to show that the testator really intended to make a disposition of the whole of the fund, does s. 90 of the Succession Act, 1965, allow the court of construction to use that extrinsic evidence for the purpose of superseding the clearly expressed intention in the will? I pose the question in that way because I think there is no doubt that (for the reasons given by Mr. Justice Kenny in the High Court) the words “any balance then remaining” refer not to the whole of the trust fund created by the will but to the balance then remaining of the portion of it (amounting to £1,000) which was dealt with in the preceding paragraph of the will. If the words in the will prevail, the expression “any balance then remaining” must be held to refer to any balance then remaining of the £1,000 after it has been applied in accordance with the preceding paragraph.
There is available parol evidence of declarations, made by the testatrix at the time of the making of the will, which show that she intended the expression “any balance then remaining” to refer to nothing more than the balance of the £1,000that is to say, showing that the will truly represents her intention. As against that, evidence is available from the solicitor who drew the will to the effect that the testatrix’s instructions to him show that what she had in mind was not the balance of the £1,000 but the balance of the trust fund consisting of her total estate, which estate was valued for probate purposes at some £50,000. If the latter evidence were to be accepted as being correct, and if s. 90 of the Succession Act, 1965, were to be held to allow it to be used to determine the true nature of the testamentary disposition, it would enable the court to rectify the will by giving testamentary effect to a disposition which is not to be found in the will and which actually conflicts with the disposition in the will.
Section 90 of the Succession Act, 1965, reads as follows:
“Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.”
Section 9 of the Wills Act, 1837, laid down a common requirement for all wills, whether of real or personal property, i.e., a written instrument signed by the testator and witnessed by two signing witnesses. Between 1837 and the enactment of the Act of 1965, it was an inflexible rule that, where there was a clear and unambiguous testatorial intention expressed in such a will duly admitted to probate, extrinsic evidence of a different intention could not be received in a court of construction for the purpose of overriding the intention expressed in the will.
In Wigram on Extrinsic Evidence In Aid of the Interpretation of Wills (5th ed.) the author, having proposed (p. 2) the question “Under what restrictions is the admission of extrinsic evidence, in aid of the exposition of a will, consistent with the provisions of a statute, which makes a writing indispensable to the purpose for which the instrument was made?”, gives (at p. 8) the following reply:
“It is said, (and correctly), that the statute, by requiring a will to be in writing, precludes a Court of law from ascribing to a testator any intention which his written will does not express, and, in effect, makes the writing the only legitimate evidence of the testator’s intention . . . At the same time, however, Courts of law, though precluded from ascribing to a testator any intention not expressed in his will, admit their obligation to give effect to every intention which the will properly expounded contains. The answer, therefore, to the question above proposed . . . must be, that any evidence is admissible, which, in its nature and effect, simply explains what the testator has written; but no evidence can be admissible, which, in its nature or effect, is applicable to the purpose of shewing merely what he intended to have written.”
The rule that extrinsic evidence could not be adduced for the purpose of adding to, varying, or contradicting the terms of a will has been applied firmly in the Courts, even in cases where the upheld interpretation of the will appeared to run counter to the true intention of the testator. For example, inIn re Huxtable11 , the testator bequeathed £4,000 to C. “for the charitable purposes agreed upon between us.” It was held that, while evidence could be received to prove what the agreed charitable purposes were, it was impermissible to receive evidence to show that the testator intended that only the income was to go to those purposeson the ground that such evidence would contradict the will. For the same reason in In re Rees12 , where the testator left part of his estate “unto my trustees absolutely they well knowing my wishes concerning the same . . .” the court rejected apparently credible evidence that the testator intended the trustees to take the property absolutely, for such evidence would have rebutted the trust which the will was held to have created. The point, then, is whether s. 90 overthrew that rule.
At the time of the enactment of s. 90, extrinsic evidence was admissible in a variety of circumstancesdepending on whether the court was sitting as a court of probate or a court of constructionto show the intention of the testator; the one important qualification being that such evidence could not be received by a court of construction for the purpose of adding to, varying, or contradicting the intention expressed in the will.
I read s. 90 as allowing extrinsic evidence to be received if it meets the double requirement of (a) showing the intention of a testator and (b) assisting in the construction of, or explaining any contradiction in, a will. The alternative reading would treat the section as making extrinsic evidence admissible if it meets the requirement of either (a) or (b). That, however, would produce unreasonable and illogical consequences which the legislature could not have intended. If the section made extrinsic evidence admissible merely because it satisfies requirement (a), then in any case the court could go outside the will and receive and act on extrinsic evidence as to the intention of the testator. The grant of probate would no longer provide an exclusive and conclusive version of the testamentary intention as embodied in a will. However, it would be unreasonable and contradictory for the legislature, on the one hand to lay down in s. 78 the formal requirements for the disposition of one’s property by will, and on the other to allow by s. 90 (without qualification or limitation as to purpose or circumstances or time) extrinsic evidence of the intention of the testator to be admitted. Such a sweeping and disruptive change, fraught with possibilities for fraud, mistake, unfairness and uncertainty, should not be read into the section if another and reasonable interpretation is open.
Section 90 is no less tainted with repugnancy if it is treated as making extrinsic evidence admissible merely because it satisfies requirement (b), that is to say, if it assists in the construction of, or if it explains a contradiction in, a will. Since the function of a court in construing a will or in finding an explanation of a contradiction in it necessarily involves a search for the intention of the testator, it would have been unnecessary for the section to include requirement (b) if requirement (a) on its own were sufficient to allow the admission of extrinsic evidence.
The plain fact is that the grant of an unlimited and undefined jurisdiction to admit extrinsic evidence to show the testator’s intention would be so large in its scope and so untoward in its potential consequences that it would exceed the spirit and purpose of the Act. The necessary delimitation of the jurisdiction to admit such evidence is effected by the second limb of the section: “and to assist in the construction of, or to explain any contradiction in, a will.” The conjunctive and cumulative “and” is to be contrasted with the disjunctive and alternative “or.” It connotes a duality of purpose as a condition for the admission under the section of extrinsic evidence. The necessary conditions are:
condition is not satisfied, the section does not allow the evidence to be admitted.
Let us now relate s. 90, as so interpreted, to the circumstances of this case. The extrinsic evidence which is sought to be adduced would have the purpose of showing the intention of the testator. The first condition for its admissibility under the section would therefore be satisfied. But what of the second condition, that it would assist in the construction of the will, or explain a contradiction in it? There is no suggestion of a contradiction in the will; so that aspect of the second condition does not arise. The matter then reduces itself to a question whether the proposed evidence would assist in the construction of the will. I am satisfied that it would not. The questioned provision in the will is clear and admits of only one construction. Extrinsic evidence could not possibly assist in its construction. It is only when assistance is neededbecause on application of the rules of construction the will may be said to be unclear or uncertainin order to achieve the correct construction of the will that recourse may be had under the section to extrinsic evidence of the testator’s intention. That is not the case here. If the proposed evidence were received and acted on, the Court would have to change the expression “any balance then remaining” (i.e. of the £1,000) to”any balance then remaining of the Trust Fund” (i.e., of the whole estate). To do that, however, would amount to more than a construction of the will; it would amount to a rectification of it. And it is quite clear that a jurisdiction to rectify a will which has been admitted to probate is outside the contemplation of s. 90; and it was not permitted by the pre-existing law.
I conclude that the jurisdiction given by s. 90 to use extrinsic evidence to assist in the construction of a will is confined to cases where the intention, as expressed in the will, calls for elucidation; my conclusion coincides with the opinion reached by Mr. Justice Kenny in the High Court in this case and by Mr. Justice Parke, when sitting in the High Court, in Bennett v. Bennett .1
To sum up: s. 90 allows extrinsic evidence of the testator’s intention to be used by a court of construction only when there is a legitimate dispute as to the meaning or effect of the language used in the will. In such a case (e.g., In re Julian7 ) it allows the extrinsic evidence to be drawn on so as to give the unclear or contradictory words in the will a meaning which accords with the testator’s intention as thus ascertained. The section does not empower the Court to rewrite the will in whole or in part. Such a power would be repugnant to the will-making requirements of s. 78 and would need to be clearly and expressly conferred. The Court must take the will as it has been
admitted to probate. If it is clear, unambiguous, and without contradiction then s. 90 has no application. If otherwises, then s. 90 may be used for the purpose of giving the language of the will the meaning and effect which extrinsic evidence shows the testator intended it to have. But s. 90 may not be used for the purpose of rejecting and supplanting the language used in the will.
As the clause of the will in question in this case is clear and unambiguous and does not import any contradiction, s. 90 does not allow extrinsic evidence to be used either to explain it or to supersede it. Accordingly, I would dismiss this appeal.
Griffin J.
The facts and the relevant terms of the will of the testatrix are fully set out in the judgments of the Chief Justice and of Mr. Justice Kenny (from whose decision in the High Court this appeal by the second and third defendants is taken) and it is not necessary for me to repeat them.
By her will the testatrix gave, devised, and bequeathed all her real and personal estate (which she called “the Trust Fund”) to her trustees upon certain trusts which are set out in the will in numbered paragraphs. Paragraph 1 provided for the payment of her debts, funeral, and testamentary expenses out of the Trust Fund. In paragraph 2, she carved out of the Trust Fund the sum of £1,000 which she directed should in the first instance be utilised or applied in the purchase and furnishing of a suitable cottage residence for the use and occupation of the appellants during their joint lives and the life of the survivor of them and, subject thereto, “as to any balance then remaining” to invest the same, the income to be paid to the appellants during their joint lives and then to the survivor for life. In my opinion, her use of the words “in the first instance” in relation to the use to which the £1,000 was to be put, followed by the trust in respect of “any balance then remaining” could only be interpreted as being the balance of the £1,000 remaining after the purchase and furnishing of the cottage. Her use of the words “in the first instance” is important and indicates that one would reasonably expect further references to what is to be done with the remainder of the £1,000 after the purchase of the cottage. Further, her use of the word “any” before “balance then remaining” is significant as she could not reasonably have thought that the £1,000 would exhaust her considerable estate. Her use of the phrase “any balance then remaining” is to be contrasted with her reference to “the Trust Fund then remaining” in paragraph 4 of the will.
The construction for which the appellants contend would require the insertion of the words “of the Trust Fund” after the word “balance,” so that the relevant portion of paragraph 2 would then read “as to any balance of the Trust Fund then remaining.” Apart from the provisions of paragraph 2 there are other provisions in the will which indicate that this construction would not be the correct one. In the last sub-clause of paragraph 2, it is provided that on the death of the survivor of the appellants “the said sum of £1,000 or the investments for the time being representing the same” are to be given to the parish priest for the time being of the parish of Castledermot. Here is found reference not only to the £1,000, but also to “the investments for the time being representing the same.” The only investments referred to earlier in the will are those in respect of “any balance then remaining.” Finally, in paragraph 4 the testatrix expressly referred to “the Trust Fund then remaining;” this is the expression which the appellants seek to write into the relevant portion of paragraph 2 after the word “balance” for the purpose of the construction for which they contend. These words clearly refer to the balance of the trust fund after payment of the debts, the £1,000 and the legacy of £100 for Masses bequeathed in paragraph 3. The use of these words in paragraph 4 weigh very heavily against the appellants’ claim that they should be written into paragraph 2 for the purpose of arriving at the true construction of that paragraph.
In my opinion, therefore, the construction of this will, as written, leaves no room for doubt in relation to the relevant words in paragraph 2, and the construction given to the words by Mr. Justice Kenny is the correct one.
The question then arises as to whether, having regard to the provisions of s. 90 of the Succession Act, 1965, extrinsic evidence is admissible as to the dispositive intention of the testatrix at the time she gave instructions for the will. Prior to the passing of the Act of 1965, the general principle was that in a court of construction, where the factum of the instrument has been previously established in the court of probate, the inquiry was pretty closely restricted to the contents of the instrument itself in order to ascertain the intentions of the testator. As the law required wills both of real and personal estate to be in writing, it could not, consistently with this doctrine, permit parol evidence to be adduced to contradict, add to, or explain the contents of the will.
The general rule was subject to certain qualifications. Evidence of the state of the testator’s family and property and other circumstances surrounding the testator was admissible, but evidence of the intention of the testator was not. As Lord Langdale M.R. said in Martin v. Drinkwater 13 (p. 218) you are at liberty to prove the circumstances of the testator, so far as to enable the court to place itself in the situation of the testator, at the time of making his will; but you may not prove either his motives or intentions.
It is quite clear that extrinsic evidence of a testator’s intention was admissible only where equivocation arosei.e., to identify the subject matter or the person with the description in the will where the description is equally (though not completely) applicable in all its parts to two or more subject matters or two or more persons claiming to take: see Lord Cairns L.C. in Charter v. Charter 14 (p. 377); In re Ray ; Cant v. Johnstone 15 (p. 465) and In re Julian 7 (p. 62). In all other cases where extrinsic evidence was allowed, the evidence was purely factual in the sense that it was merely evidence of surrounding circumstances or the meaning of words. “The procedure is notfirst ascertain the surrounding circumstances and with that knowledge approach the construction of the will, but first construe the will; if the meaning is clear, surrounding circumstances cannot be looked at to throw a doubt upon that meaning, or to give the will a different meaning . . .”Theobald on Wills, 13th ed., para. 427. If the words of the will were definite and free from doubt, parol evidence was not admissible to show that they meant something different. In Hall v. Hill 16 Sugden L.C. said at p. 122 of the report: “Now, I think that is the true rule, that if by construction you arrive at a conclusion, you cannot let in evidence for the purpose of contradicting it.”
This was the state of the law at the passing of the Succession Act, 1965. Section 90 of that Act is in the following terms:
“Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.”
It is contended on behalf of the appellants that the words “extrinsic evidence shall be admissible to show the intention of the testator” should be read disjunctively and interpreted widely and that, in consequence, the evidence of the solicitor who took the instructions of the testatrix and drafted the will should be admissible in relation to the intention of the testatrix. Therefore, it is necessary to consider precisely what extrinsic evidence is admissible under section 90.
Where evidence of intention was admissible at common law, declarations made by the testator before, after, and contemporaneously with the will were admissible. In Doe d. Allen v. Allen 17 Lord Denman C.J., giving the judgment of the court, said at p. 455 of the report: “Cases are referred to in the books to shew that declarations contemporaneous with the will are alone to be received; but, on examination, none of them establish such a distinction. Neither has any argument been adduced which convinces us that those subsequent to the will ought to be excluded, wherever any evidence of declarations can be received.” And in Langham v. Sanford 18 Eldon L.C. said at p. 649 of the report: “It is unfortunate, but it is certainly settled, that declarations at the time of making the will, subsequent and previous to it, are all to be admitted: yet we know, that what men state as to their intentions may be conformable to the purpose at the time, but not afterwards; and declarations by a testator, after having made his will, are frequently made for the purpose, not of fairly representing, but of misrepresenting, what he has done.” These latter words, although written over 150 years ago, would seem to be very appropriate to conditions in Ireland to-day, where it is not unusual for testators to placate several relatives by telling them that they have been looked after in the will. If s. 90 is to be given the interpretation contended for by the appellants, I see no reason whatever why the same rule should not apply as applied at common law when extrinsic evidence was admitted, and why declarations by a testator made years before or after the making of the will should not be admissible. To hold otherwise would require reading into the section limitations that are not there.
In my opinion, however, this submission of the appellants is not well founded and s. 90 of the Act of 1965 should not be construed in the manner contended for, or in isolation. Section 90 is included in Part VII of the Act which deals exclusively with wills. Section 78 of the Act of 1965, which replaced s. 9 of the Wills Act, 1837, and s. 1 of the Wills Act Amendment Act, 1852, sets out in detail the formalities necessary for a valid will. If extrinsic evidence of the dispositive intention of a testator is to be admitted without qualification, the effect of this would be that a new will could be written for the testator, this will to be collected from the statements and declarations of the deceased at the time of, before, or after the making of the will, without compliance with the provisions of section 78. The effect of this would be to nullify those provisions and to render ineffective the safeguards provided therein.
In my view, on the correct construction of s. 90, extrinsic evidence is to be admitted only for the stated purpose of assisting in the construction of, or to explain any contradiction in, a will, and not for the purpose of replacing the dispositive intention of the testator as expressed in the willfor that would be outside the range of purpose permitted by the section.
If the construction of the will is clear, evidence cannot be adduced for the purpose of contradicting the terms of the will or writing a new will for the testator. The section was designed to ensure that, in the case of difficulties which arose in such cases as In re Julian 7 , once the construction of the will isnot clear then extrinsic evidence is to be admissible to assist in its construction. Similarly, where there is a contradiction in the will, extrinsic evidence is admissible to explain it. If this section had been in force when In re Julian 7 was decided, then in my view that decision would have gone the other way.
In my opinion, therefore, Mr. Justice Kenny was correct in ruling that, once the construction of the will was quite clear, extrinsic evidence to show the dispositive intention of the testatrix was not admissible. Accordingly, I would dismiss this appeal.
MH and N McG v NM and CM
1978 No. 7524P
High Court
2 March 1983
[1983] I.L.R.M. 519
(Barron J)
2 March 1983
BARRON J
delivered his judgment on 2 March 1983 saying: In this case, the testator died on 6 June 1977 having made his last will and testament on 15 June 1976. His wife predeceased him having died in the year 1973. He was survived by his six children. While the children were growing up, the family lived in a home owned by their mother at 11, Lullymore Terrace, South Circular Road, Dublin. Both mother and father had an ambition that they should own a public house and in the year 1959 they purchased a public house at Summerhill in Dublin. The family moved to accommodation over the premises. The finance *521 necessary for this move was obtained by savings and loans. They moved from these premises to premises at Bath Avenue, Sandymount in or about the year 1963 where they remained thereafter. The premises were taken in the name of the testator who was the sole owner thereof. Some time before his wife died, the business was formed into a limited company, CM and Sons Ltd. with 1,000 issued shares of which 300 were issued to the testator, 300 to his wife, and 200 to each of his sons, C and R. Following the death of his wife, her estate was not administered and accordingly at the date of his death the testator was entitled to the premises at Bath Avenue, 300 shares in the company which ran the business and his share of his wife’s estate. He had no other assets. By his will he left the property at Bath Avenue, the entire contents thereof and all ‘my shares and interests in the business of licensed vintners carried on therein under the name of CM and Sons Ltd’ to his two sons N and C and the residue of his estate to his remaining four children.
Having regard to the fact that the estate of his wife was left unadministered, a question of construction arises as to whether his proportion of the shares in the company held by his wife which would have passed to him on completion of the administration of her estate passed under the specific bequest to his two sons or under the residuary request to his remaining children.
Next-of-kin under an intestacy have the same interest in the estate of an intestate as a residuary legatee has in the residue of the testator’s estate: See Cooper v Cooper LR 7 HL 53. In that case, the testatrix had made an invalid appointment by will over assets which in default of a valid appointment passed as on an intestacy. Some of those entitled as next-of-kin under such intestacy received other benefits under the will of the testatrix. It was held that they had to elect between such benefits and the assets coming to them in default of appointment.
This case was followed specifically by the Court of Appeal in Tevlin v Gilsenan [1902] 1 IR 514. In this case, the question was whether the interest of one of the next-of-kin in a chattel real was of such a specific character as being capable of being the subject matter of a judgment mortgage. It was held that it was. At page 521, Lord O’Brien, LCJ said:
These passages (he was referring to passages from Cooper v Cooper which he had quoted) show … that it was decided in Cooper v Cooper that a next-of-kin takes a specific interest in each portion of the intestate’s estate which he can assign or release.
This specific interest was not regarded as entitling the next-of-kin to claim an absolute interest in any particular asset such that the administrator had an obligation to hand it over in specie: See Vanneck v Benham [1917] 1 Ch 60; nor was it of such a specific nature to pass under a bequest of ‘my shares’: See Villiers v Holmes [1917] 1 IR 165. Where, however, the bequest was of ‘all shares which I hold and any other interest or assets which I may have in’ a specified company, it was held in Re Leigh’s Will Trusts, Handyside and Anor v Durbridge and Ors. [1969] 3 All ER 432, that the interest did pass. Dealing with the nature of the rights of next-of-kin in the unadministered assets of an intestate, Buckley J said: *522
What she could transmit was her own right to require the administrator of her husband’s estate, whoever he might be, to administer his estate in any manner she or her personal representative might require consistent with the rights of any other persons having rights against the estate. This right she could transmit to her executor, coupled with a duty to exercise it in a particular manner. By her will she has, in my judgment, clearly indicated that her executor should so exercise this right as to procure the 51 shares, and the company’s indebtedness should to the largest possible extent become available to satisfy the specific bequest in favour of the first defendant. In the event, as I have said, they remain intact and are available in their entirety to pass under the specific bequest. (at 436).
Applying these decisions the 200 shares to which the testator would have become entitled upon the completion of the administration of his wife’s estate, assuming that they did not have to be disposed of in the course of administration, did not become his shares. He did, however, acquire a specific interest in them which passed to his executor. This being so, they would not have passed under a bequest of ‘my shares’. However, the bequest being in the form it is, they do pass under the bequest of ‘all my interest in the business’.
The evidence adduced indicates that the assets of the testator’s wife apart from these shares were small and are unlikely to do more than meet the expenses of administration. The testator did not otherwise have any residuary estate so that the effect of the testator’s will has been to leave the entire of his assets to his two sons N and C and to leave nothing at all to his remaining four children. Two of these children are the plaintiffs in these proceedings who claim that the testator has failed to make proper provision for either of them in accordance with his means.
The testator was survived by each of his six children. Their circumstances in life are as follows:
His eldest son RM was born in 1933. He became a carpenter and emigrated to England where he has done well. He now has a senior post with a subsidiary company to an international firm of building contractors. He had no financial demands on his father at any time, and in fact, had lent his father some money to purchase his public house premises at Sumerhill.
NM, the first named defendant, was born in 1936. He left school after two years in secondary school and subsequently attended a two year course at Kevin Street, Technical School, Dublin. He became an electrician and married in 1965. He owns his own home for which he paid approximately £2,500 when he got married and now pays £33 every two months on the mortgage. He has an Opel Kadett motor car 14 months old. His wife has no car. From about the year 1971 he started to work at weekends in his father’s public house. From in or about 1974 he worked full-time. When the company was formed, he received 200 shares.
The next eldest is DK. She attended school until leaving certificate. After various jobs she married in the year 1967 and now has three children. In 1975 she was to have nursed her mother who had then suffered a second stroke. For this purpose she was promised a sum of £5000 to buy a house. This money represented the bulk of the proceeds of sale of 15, Lullymore Terrace which had originally been the family home. This she received, but in the events which *523 happened her mother died before she could look after her. She makes no claim against the estate of her father.
CM, the second named defendant was born in the year 1944. He went to school until intermediate certificate. He married at the age of 25 and has three daughters. He bought his own house when he married and paid £3,200 for it. He now pays off a mortgage at the rate of £30 per month. He has his own motor car, his wife has no car. It was always intended that he should go into the family business. In order to obtain experience he worked as a barman in various public houses around the city. He went into the family business full-time in the year 1968.
The remaining children of the testator are MH and N McG the two applicants in these proceedings. N McG was born in 1945. After one year’s course in the local technical school she obtained employment as a machinist in a sewing factory. She married in 1970. At that stage her husband was a motor mechanic in a garage in the suburbs of Dublin. Since then he has obtained employment with Toyota and is now employed by that firm to train its apprentices. He has a take-home pay of approximately £125 per week. They bought their own home when they married for the sum of £5,200 and now pay off a mortgage at the rate of £40 a month.
MH was born in 1948. She went to school until she obtained her intermediate certificate and then did a commecrial course. She was an accounts clerk until she married in the year 1968. Her husband was the owner of a bar and restaurant being his family’s business in Baltinglass. Unfortunately, this was burnt out in 1969. It was under insured and the parties were not in a position to rebuild. They moved to the Dublin area. Mr H became a house agent and at first they purchased a house in Bray. In less than a year this was sold and they purchased a house in Killiney. They paid £7,000 for this house in 1971 and now pay off a mortgage at the rate of £70 a month. His business as a house agent was a failure and he appears to have given it up about the year 1976. Since then he has run a business in the old cinema at Tallaght which he rented at a rent of £180 a week inclusive of rates. During the testator’s lifetime his business was not particularly successful but since the testator’s death has been much better. Notwithstanding the failure of his estate agent’s business and the modest returns from his business at Tallaght during the testator’s lifetime he was able to retain his home and during this period had the use of a motor can and his wife also had a car of her own.
The basis of the claim by the two applicants is that they were brought up in a very frugal atmosphere. They say that both their parents were extremely ambitious to own their own public house and that they saved and saved and really never spent sufficient on the children. They say that they never got any pocket money or chocolates or treats or anything of that nature. I think there is probably something in what the plaintiffs say in this regard. I think also that MH being the youngest suffered most from the changes in the family home from South Circular Road to Summerhill and then out to Bath Avenue. It seems that during the four years that they were at Summerhill they were not allowed to play with the neighbourhood children nor did they particularly want to apparently. Nevertheless both the plaintiffs have developed well adjusted personalities and *524 probably benefited from the form of up-bringing which they received.
This application is brought under s. 117 of the Succession Act, 1965. In H v H 1981 No 1042 Sp 2 March 1983 I indicated how the court should approach such applications and I propose to approach this application on the same basis.
The testator’s estate comprised 500 shares in the company which ran the business and the premises in which it operated. The present day value of the licensed premises on the basis that it is held in fee simple is of the order of £135,000. As the value of the premises is of the order of £55,000, the business is worth the difference, though only if it gets in the fee simple. Since the death of the testator, the company has spent £32,000 in renovating and extending the premises. Its rental value in its present state in 1979 was £6,000 a year, the tenant being responsible for all repairs and insurance.
The testator purported to divide his estate amongst his children. In practice, he has benefited only the two defendants. Of his remaining children two are not applicants in these proceedings. Accordingly, I have to consider only the position of the two applicant children who have received nothing in effect under the will of their father and the position of the two respondents who, in effect, have received the entire of their father’s estate. N certainly, and C to some degree, had given up independent employment in order to come into the business. To that extent their careers were moulded by their expectations from their parents. So far as the two girls were concerned, M was in reasonably good financial circumstances. Although her husband’s business did not prosper nevertheless they appear to have the trappings of reasonable comfort. N was in less good financial circumstances but expressed herself to be contented with her position. In addition to the basis of claim to which I have already referred, the two applicants claim that they alone looked after their mother in her two illnesses. This is certainly correct since although their sister was to have looked after their mother in her final illness she died before this could happen. They maintain also that they are not as well off as the two respondents and that whereas the two respondents will have a capital behind them they will not. Finally they maintain that the testator had agreed to leave the premises in which the business was run to his three daughters equally. The evidence given on behalf of the plaintiffs is to the effect that they wanted their mother’s estate to be administered but that their father asked them not to do so as he needed the money for his business. They say that they were assured that if they took no steps to have their mother’s estate administered the premises in which the public house business was run would be left to the daughters of the family and that the business would be left to the sons. There is complete conflict on this. The two sons say that the daughters were offered £1,000 each and that they rudely rejected this amount. If any such deal had been made as is suggested by the plaintiffs, I would have expected to see some reference to it in the correspondence between the parties. The two plaintiffs were offered a sum of money by letter in April 1979. This was not replied to until September 1979. When it was so replied to, there is no reference in the replying letter to this alleged promise. If such had been made, reference to it could hardly have been omitted. Further, there was no real money in their mother’s estate so that the basis for the alleged agreement can have little sub *525 stance. On the probabilities, I am not prepared to hold that any such promise was made to either of the applicants.
The basis of the plaintiffs case is really that it is fair that they, who have never received anything from either of their parents, should receive some part of their father’s estate. Although a father has a moral obligation towards his child to make proper provision for him in accordance with his means, this does not mean that a father is obliged to leave something to his child or to share his estate among his children assuming he has no other moral responsibilities. If that were the position, then the effect of s. 117 of the Succession Act 1965 would be to preclude a testator from leaving his estate away from his children and would preclude him from choosing in effect how to dispose of his estate. What s. 117 does is to prevent a testator who can make proper provisions for his children in accordance with his means from refusing to do so.
In the present case, I take the view that the testator would have failed in his moral duty to make proper provision for his two sons if he had left them nothing. Proper provision for them required such provision as would permit the continuation of their livelihoods from the business. So far as the two plaintiffs were concerned MH and her husband were established in the way of life which they had chosen and had a standard of life somewhat higher than that of the testator. N McG and her husband were also established in the way of life which they had chosen although they had a standard of life somewhet lower than that of the testator, but had no particular needs to be satisfied. Taking the position of each of the four children into account and the means of the testator, I take the view that the testator did not fail in his moral duty in failing to make any effective provision for the two plaintiffs.
William J. Fitzpatrick v Patrick J. Collins and Anthony Collins
1978 No. 594 Sp
High Court
19 December 1978
[1978] I.L.R.M. 244
(McWilliam J)
McWILLIAM J
delivered his judgment on 19 December 1978 saying: The plaintiff is the administrator with the will, dated 13 June 1955, annexed, of John Collins (hereinafter called the testator) who died on 2 October 1973. The plaintiff brings these proceedings for the determination of certain questions arising upon the interpretation of this will, the material parts of which are the following:
In the event of my dear wife Christina Collins surviving me for the space of two months after my death I appoint my said wife Christina Collins sole executor of this my will and I devise and bequeath all my property both real and personal whatsoever and wheresoever of which I may die seized possessed of or become entitled to (including any property over which I may have any power of appointment) unto and to the use of my said wife Christina Collins absolutely. In the event of my wife the said Christina Collins surviving me for the space of not more than two months as aforesaid I bequeath to her the sum of five hundred pounds for her absolute use and in this event I appoint William J. Fitzpatrick General Secretary of the Irish Union of Distribution Workers and Clerks sole executor of this my will and I bequeath to him the sum of One hundred pounds free of legacy duty for his absolute use in the event of his so acting and subject to the payment of my lawful debts, funeral and testamentary expenses I devise and bequeath all the rest and residue of my property both real and personal whatsoever of which I may die seized possessed of or become entitled (including any property over which I may have any power of appointment) unto the said William J. Fitzpatrick Upon Trust to sell call in and convert the same into money and to apply the net proceeds of sale for the purpose of having Masses said in public in Ireland for the repose of my soul and the soul of my wife the said Christina Collins and the souls of both our respective parents.
The testator had no children. His wife Christina Collins, predeceased him by about eight years. The defendant Patrick J. Collins and Anthony Collins are his next of kin, one being a brother living in Uruguay and the other being a half-brother living in Limerick.
Read literally, this will provides for the circumstances of the testator’s wife surviving him for the space of more than two months, in which case she took all his property, and for the circumstance of her surviving him but dying within two *246 months, in which case she got a bequest of £500 and the bequest for masses took effect. No provision was made for the circumstances of his wife predeceasing him, so that there would be an intestacy unless some other interpretation can be put on the terms of the will.
It had been pointed out that this literal interpretation produces the incongruous result that the testator has made elaborate provisions for the spiritual welfare of his wife and himself and his wife’s and his own parents in the event of his wife surviving him and dying within two months but makes no such provision for the case of his wife predeceasing him. Principles have been suggested in argument which may be applied so as to avoid this situation. It is argued that the word ‘not’ should be transposed so that the phrase would read as follows:
In the event of my wife the said Christina Collins not surviving me for more than the space of two months …
and I was referred to a passage at p. 603 of the eight edition of Jarman on Wills where the author says
It is quite clear … that, where a clause or expression, otherwise senseless and contradictory, can be rendered consistent with the context of being transposed, the Courts are warranted in making that transposition.
In the case of Macandrew’s Will Trusts [1963] 3 WLR 822 in which Ungoed-Thomas J, fully reviewed the authorities the relevant words were at p. 824:
if my said son William Duncan shall not leave a child or widow who shall become entitled to an interest in his share …
the gifts having been to the son and his wife for life and after the death of the survivor to the children of that son with a gift over, in the events happening as provided by the words in inverted commas, to the children of another son. Ungoed-Thomas J, said at p. 834:
The fundamental and over-riding duty binding the court is to ascertain the intention of the testator as expressed in his will read as a whole … In this case, the dominating consideration, to my mind, is that the words ‘or widow’, if literally construed, are so completely senseless in the context of this will, which is not distinguished by deliberate and erratic folly …. They are, literally construed, an incongruous insertion in what is otherwise construed as a rational and normal scheme of disposition …. I am satisfied that the proper construction of the words ‘or widow’ would treat them as in parenthesis, designed to indicate that the gift over was to be subject to the interest given to the widow … (at p. 834).
As I read the present clause, it is not senseless or contradictory but was put in deliberately to deal with the case of the wife surviving the testator and dying within two months of his death, in which case she was to receive the sum of £500 only. In this respect it was correctly phrased. Certainly the testator cannot have contemplated his wife getting £500 if she predeceased him.
I was also referred to s. 90 of the Succession Act, 1965 which provides that extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in a will and that I should admit evidence from the solicitor who drew the will. It seems to me, having regard to the decision of the Supreme Court in the case of Rowe v Law [1978] IR *247 55 that I am only entitled to consider such evidence in order to explain some ambiguity or contradiction in the will. Although there is an inconsistency in this will there is no ambiguity or contradiction in it, and I will not admit the evidence tendered.
Taking the will as a whole it is reasonably clear that the testator had his mind concentrated solely on the disposition of his property on the basis that his wife would survive him or die very soon after him and that he did not advert at all to the possibility of her predeceasing him. If this is so, he formed no intention with regard to her death before him and died intestate in this respect. It is probable that, had his mind been directed to this possibility, he would have made dispositions similar to those which he made in the event of her dying within two months of his own death but I am not entitled to make a will for a testator to cover circumstances which he has overlooked and such speculation is irrelevant.
In the Matter of the Will of Joseph Clinton
(Deceased)
Brenda O’Sullivan, Brenda Murphy, Maura Clinton and Colm Clinton (known in Religion as the Reverend Colm Clinton) v Margaret Dunne, John Aylmer, Josephine Balfe, Ambrose Keatley and Patrick Keatley
1986 No. 244P
High Court
27 May 1987
[1988] I.L.R.M. 80
(Blayney J)
27 May 1987
BLAYNEY J
delivered his judgment on 27 May 1987 saying: The plaintiffs are the residuary legatees named in the last will of Joseph Clinton deceased (to whom I shall refer as the testator) who died on 10 February 1983. The first named plaintiff, Brenda O’Sullivan and the first two defendants, Margaret Dunne and John P. Aylmer, are the executors of the will. Probate was granted to them on 2 August 1984. The third, fourth and fifth named defendants have an interest in the construction of the will as will become apparent when I refer to its terms.
The plaintiffs’ claim as against the first and second defendants is for the administration of the testator’s estate, and as against all the defendants for the construction of the will. The hearing before me was concerned solely with the construction of the will and apart from one consequential matter I will confine myself to that.
The will commences with the appointment of executors and after two bequests comes the passage which requires to be construed, which is as follows:
I direct my executors to dispose by sale at a price to be agreed between them and the purchaser, of my lands known as the Glen Field and the Furry Hill to Mrs Josephine Balfe of Davidstown, Pillsworth, Castledermot, County Kildare. I direct my executors to dispose by sale at a price to be agreed between them and the purchasers of the remainder of my lands and buildings to Ambrose and Patrick Keatley of Castledermot, County Kildare the purchase monies to be paid by the purchasers of the said lands over a period of ten years from the date of my death. I give and bequeath unto my grandniece Maureen Callery a sum of £1,000 to be applied towards her maintenance and welfare. I give devise and bequeath the residue of my property including the proceeds of the sales mentioned above in equal shares between my nieces and nephew: Brenda O’Sullivan, Breda Murphy, Maura Clinton and the Reverend Colm Clinton as tenants in common.
Questions arise both as to the construction of the direction to the executors and as to whether it is sufficiently certain to enable effect to be given to it, but before considering these questions a preliminary point had to be decided, namely, whether extrinsic evidence was admissible in construing the will. I held that it was. It seemed to me that the circumstances of the case brought it within the principles laid down by the Supreme Court in Rowe v Law [1978] IR 55. Henchy J said in his judgment
To sum up: s. 90 (of the Succession Act 1965) allows extrinsic evidence of the testator’s intention to be used by a court of construction only when there is a legitimate dispute as to the meaning or effect of the language used in the Will. In such a case (e.g. Julian In re [1950] IR 57) it allows the extrinsic evidence to be drawn on so as to give the *83 unclear or contradictory words in the Will a meaning which accords with the testator’s intention as thus ascertained. The section does not empower the court to rewrite the Will in whole or in part. Such a power would be repugnant to the will-making requirements of s. 78 and would need to be clearly and expressly conferred. The court must take the Will as it has been admitted to probate. If it is clear, unambiguous, and without contradiction then s. 90 has no application. If otherwise, then s. 90 may be used for the purpose of giving the language of the Will the meaning and effect which extrinsic evidence shows the testator intended it to have. (at p. 73)
In my opinion there is here a legitimate dispute as ‘to the meaning or effect of the language used in the Will’, firstly, as to the meaning or effect of the direction to the executors that the sales were to be ‘at a price to be agreed’ between the purchasers and the executor, and secondly, as to whether the provision spreading the price over ten years applied to the sale to Mrs Balfe as well as to the sale to the Keatleys. Accordingly I admitted evidence to show the intention of the testator.
Evidence was given by the second named defendant, John P. Aylmer, who, as well as being an executor, is also the solicitor who drew the Will, and his evidence is of great assistance in arriving at the true intention of the testator. It might be summarised as follows.
Mr Aylmer knew the testator all his life. The testator, who was a bachelor, lived on a farm about half a mile outside Castledermot. The farm formerly belonged to uncles of his. He had a close relationship with the Balfes and the Keatleys and on a number of occasions he had said to Mr Aylmer that he intended to benefit them. He wanted his neighbours to benefit. He did not want the farm to go on the public market. Part of the lands directed to be sold to Mrs Balfe had been let to her for over 20 years; the lands directed to be sold to the Keatleys had been let to them for over 25 years. The lettings were arranged privately. The testator was in Baggot Street Hospital when Mr Aylmer took his instructions for his Will on 30 January 1983. He was not in expectation of death and expected to be home soon. The principal items discussed were the testator’s farm and the residuary clause. Mr Aylmer asked him about the price for the farms and the testator said, whatever was fair and reasonable. Mr Aylmer suggested that it would be better to direct the executors to put the property on the market: the testator said he did not want that. He said that when he came home he would sell the lands to the Balfes and the Keatleys. Insofar as the provision for payment over ten years was concerned, he did not make any distinction between Mrs Balfe and the Keatleys. The ten year period was to be common to both and there was no mention of any interest payments. As for price, Mr Aylmer had acted for the testator when he sold two building sites. The testator had left the question of agreeing the price to Mr Aylmer, his instructions being that it should be what was reasonable, what was fair.
When the terms of the Will are considered with the assistance of this evidence, it seems to me that there is no difficulty in ascertaining the intention of the testator. His executors were to sell the Glen Field and the Furry Hill to Mrs Balfe, and the remainder of his lands and buildings to *84 Ambrose and Patrick Keatley; the testator wanted to benefit the proposed purchasers and accordingly the price to be sought by the executors was to be such as was fair and reasonable; it was to be payable over a period of ten years from the date of his death and no interest was to be payable.
That being the testator’s intention, is it sufficiently certain that effect can be given to it? It seems to me that it is. While it might appear at first sight that the fact that the sales by the executors to Mrs Balfe and the Keatleys are to be ‘at a price to be agreed between them’ creates a difficulty, in the light of the decision in Smith v Morgan [1971] 2 All ER 1500 I consider that it does not. The plaintiff there had sold to the defendant in 1959 a dwellinghouse together with some land and part of the stabling and a barn. The conveyance contained a convenant by the plaintiff not to sell certain adjoining land for five years and thereafter, if she wished to sell it, the first option should ‘be given to the purchaser at a figure to be agreed upon provided that any such offer for sale shall remain open for a period of three months from the date on which the said offer of sale is made by the vendor’. Approximately ten years after the date of the conveyance, the vendor, desiring to escape from the obligation contained in the covenant sought the determination of the court as to whether she was legally bound by it to offer the adjoining land for first sale to the defendant and if so how the price to be paid was to be determined. Brightman J held that the absence of a settled price did not vitiate the covenant; the covenant was not an agreement to agree but an obligation imposed on the plaintiff alone to make an offer for sale, the offer being at the price at which she was in fact willing to sell.
It seems to me that the position in the present case is the same. The direction to the executors did not involve an agreement to agree but imposed an obligation on them to make an offer of sale to Mrs Balfe and the Keatleys. Just as the plaintiff in Smith v Morgan was bound by her covenant to offer the lands for sale to the defendant, if she wished to sell, so here the executors are bound to offer them to the purchasers named in the Will, the only difference being that the plaintiff in Smith v Morgan was only bound to offer them to the defendant if she intended to sell, whereas the executors have no such discretion. They have an absolute obligation in equity to offer the lands for sale to Mrs Balfe and to the Keatleys, an obligation which could be enforced by the latter.
The precise nature of their right was considered in the course of the argument, in particular whether it was an option to purchase or a right of pre-emption. It seems to me that it does not fit precisely into either category. It is not an option to purchase because the price is not fixed nor is there any agreed procedure for fixing it, and it is not a right of pre-emption, because such a right does not impose any corresponding obligation on the owner of the property to sell; it is simply a right of first refusal in the event of his deciding to sell, whereas here the executors are not free to decide whether to sell or not: They are obliged to do so. It seems to me that the right of Mrs Balfe and the Keatleys can best be described as being a *85 right in equity to have the lands offered for sale to them by the executors at a price which is fair and reasonable.
How is that price to be fixed? The testator clearly intended that it should be done by his executors, believing no doubt that Mr Aylmer, who knew what his own approach would be, would have a major say in the matter. But the executors have been unable to agree. And I think it is unlikely that they could reach agreement in the future. So the court must intervene and take upon itself the execution of the directions of the testator.
It seems to me, however, that it should not be necessary to put the estate to the expense of an administration by the court. What has to be done can be achieved without the necessity of even a partial order of administration. I will first decide what will be a fair and reasonable price for each part of the lands, and I will then direct the executors to offer the respective lands to Mrs Balfe and the Keatleys at the relevant prices. They will then have six weeks in which to decide whether to accept. If they accept within that time, an open contract of sale will come into existence; if they do not, the executors will be free to sell on the open market. In either case there is no need for any further intervention by the court. Each sale will of course be entirely independent of the other. Mrs Balfe may accept or not as she wishes, and the Keatleys also.
So that I may be in a position to determine what would be a fair and reasonable price, I will need the evidence of valuers. I will accordingly put the case back in the list for further hearing to enable this evidence to be given. With the exception of one of the questions, it is probably reasonably clear from the foregoing how I consider that the specific questions raised in the Statement of Claim should be answered, but in the interests of clarity I set out now my answers to all of them:
(a) Whether the said provisions create a trust for sale of the said lands.
Answer: Yes.
(b) Whether the said Josephine Balfe, Ambrose Keatley and Patrick Keatley have valid and enforceable options to purchase the said lands.
Answer: No; their right is to have the lands offered to them by the executors at a price which is fair and reasonable.
(c) Whether the executors of the said will are obliged to do any more than offer the said lands for sale at full value to the said Josephine Balfe, Ambrose Keatley and Patrick Keatley.
Answer: Yes.
(d) Whether the provisions for deferred payment over a period of ten years is confined to the interests of Ambrose Keatley and Patrick Keatley.
Answer: No.
(e) Whether the manner of making the said deferred payments should be by equal yearly instalments.
Answer: Yes; and since the payments are to be made over a period of ten years from the date of death of the deceased, the amount of each instalment will be obtained by dividing the purchase price by the number of years between the date of the completion of each sale and 10 February 1993. No *86 doubt the testator believed that the sale would take place very shortly after his death and, as a result, the payments of the purchase price would be spread over a period of almost ten years. It has not turned out like that. More than four years have elapsed since the testator’s death, so the period over which the payment of the price may be spread has been greatly reduced. But in view of the clear working of the will, I do not think that this consequence can be avoided. The purchase monies are to paid ‘over a period of ten years from the date of my death.’ To decide that this meant ten years from the date of the sale, which would be the obvious alternative, would not be to construe the will but to alter it and so would not be permissible. Furthermore, it would defeat the testator’s intention which seems implicit in the provision, namely, that the residuary legatees should receive the entire proceeds of sale of the lands within ten years of his death.
(f) Whether, for the purpose of sale of lands to the said Josephine Balfe, Ambrose Keatley and Patrick Keatley the lands should be valued at the date of death of the deceased.
Answer: No.
(g) Whether, in the case of any deferred payment, the valuation of the said lands should take account of such deferral, whether by the provision for payment of interest or other increment.
Answer: No.
In the light of Mr Aylmer’s evidence that the testator wished to benefit Mrs Balfe and the Keatleys and did not wish the purchase of the lands to impose any burden on them, I can see no ground for the provision in regard to spreading the purchase price over the ten years after the testator’s death being taken into account in considering the figure at which the price should be fixed. For the same reason, I do not think that interest is payable.
William Curtin v Catherine O’Mahony
, Bridget Regan, Kathleen Violand and the Attorney General
1990 No. 90
Supreme Court
31 July 1991
[1992] I.L.R.M. 7
(Finlay CJ, McCarthy and O’Flaherty JJ)
FINLAY CJ
(McCarthy J concurring) delivered his judgment on 31 July 1991 saying: I have had the opportunity of reading the judgment which is about to be delivered by O’Flaherty J and I agree with it.
As has been mentioned in that judgment, counsel on behalf of the appellants expressly disclaimed any request to this Court, on the hearing of this appeal, to reconsider the decision of this Court in the case of Rowe v Law [1978] IR 55 but accepted the view of the majority of the court in that case concerning the interpretation of the provisions of s. 90 of the Succession Act 1965. I, like O’Flaherty J, would reserve any view on the correctness of the decision in Rowe v Law until such time as it is fully debated in a case before this Court.
Within the confines of that decision, however, I am satisfied, as set out in the careful reasoning of the judgment of O’Flaherty J that this will on its face, as a will drawn by a lawyer, contains a contradiction, and a serious one, which is the contradiction between the careful and extremely detailed provisions of what might be described as the residuary clause in the will and the apparent provision that those careful and detailed provisions would only come into existence upon the happening of what would be largely an irrelevant event, namely, the selling of the testator’s house, before his death, by him. In those circumstances I agree that the obligation of the court, in justice to the testator, is to seek with as much certainty as possible to ascertain and give effect to his intention. The solution suggested by O’Flaherty J in his judgment, which in effect neutralises the conditional consequences of the phrase ‘In the the event of I selling the dwellinghouse and lands at Cloonyscrehane, Cork Road, Newcastlewest in the County of Limerick’ achieves with sufficient certainty and as far as is possible that objective of implementing the most probable intention of the testator. I would accordingly allow the appeal and answer the questions on the summons in accordance with that view.
O’FLAHERTY J
(McCarthy J concurring): Philip Curtin died on 26 June 1987 having made his last will dated 20 September 1985 whereby he appointed two executors, to whom probate was granted on 16 May 1988. At the time of his death he was a widower without children. His estate has been valued at £106,388.80 net. It consisted of his dwelling-house and a small garden which was sold by the executors after his death for £30,000. The balance was made up of chattels and monies in various bank accounts and there was an estate in the United States of America valued at $27,177.40.
The will was prepared in the office of a Kanturk, Co. Cork, firm of solicitors *10 and was witnessed by two solicitors of that firm. But those solicitors say that they had nothing to do with the drafting of the will and the identity of the draftsman remains a mystery. However, I believe that the overwhelming likelihood is that the will was drafted by a solicitor. What one reads about in judgments and textbooks, therefore, concerning the necessity to put oneself in the testator’s armchair in construing a will is, I believe, a somewhat artificial approach as far as this case is concerned. I think we should approach this will on the basis that it was a badly drafted will and find out what are the consequences that flow from that. The clause that gives rise to difficulty was as follows:
This is the last will and testament of me Philip Curtin of Cloonyscrehane, Cork Road, Newcastle West, in the County of Limerick hereby revoking all former wills and testamentary dispositions heretofore made by me. I nominate and appoint Catherine O’Mahony of Springfield, Broadford, Charleville, in the County of Limerick and William Curtin of Cnocmhuire, 2, Owenabue Drive, Carrigaline, in the County of Cork, to be executors of this my will.
I leave and devise the dwelling house at Cloonyscrehane, Cork Road, Newcastle West, in the County of Limerick to the said Catherine O’Mahony absolutely and in the event of the said Catherine O’Mahony being deceased then I leave and devise the said dwelling house to her husband Patrick O’Mahony absolutely (the surrounding land included). In the event of I selling the dwelling house and lands at Cloonyscrehane, Cork Road, Newcastle West, in the County of Limerick, I direct that my estate both real and personal which I die possessed of to which at my death I may be entitled be divided in the following percentage shares subject firstly to payment of my just debts funeral and testamentary expenses.
There followed a number of charitable and other bequests expressed in percentage terms including a provision for a headstone for the grave of the testator and his late wife, the saying of masses and 10% for Catherine O’Mahony. The percentages purported to add up to 100.5%.
The dwelling-house was not sold and Catherine O’Mahony was alive at the testator’s death.
The questions remaining for determination by the court in the construction summons were:
Whether by reason of the fact that the deceased had not sold his said dwellinghouse and lands the devise and bequest of the residue of his estate is ineffective?
If the bequest of the residue of his estate is ineffective whether the residue of the estate of the deceased should be distributed in accordance with the intestacy rules as laid down in the Succession Act 1965?
If the answer to the previous question is in the negative how the residue of *11 the estate of the deceased should be distributed?
If the bequest of the residue of the estate is effective what is the effect of the deceased purporting to dispose of 100.5% of his estate?
The learned High Court judge, Lardner J, found that the legacies in the second part of the will would only take effect if at the time of his death the testator had sold his house, which did not occur. The judge went on to say:
The result is that the will effectively only disposes of the house and lands by the devise to Catherine O’Mahony and all the legacies in the second part of the will, being contingent on a sale by the testator of his house in his lifetime, which did not occur, fail. On behalf of the contingently entitled legatees and of the Attorney General seeking to uphold the charitable legacies it has been submitted that it was not a sensible thing for the testator to have made the legacies for the tombstone and for masses for the repose of the souls of himself and his wife contingent on his selling his house prior to his death and that he could not have intended to omit such provisions if the house remained unsold. The same argument was urged in respect of the other charitable legacies.
That argument was repeated before us and it was also urged (as it was urged before the trial judge) that there is a presumption against intestacy. However, while counsel on behalf of the Attorney General, who represented the interests of the charities involved, had urged the trial judge to consider the provisions of two previous wills said to have been made by the testator on 19 November 1982 and 15 February 1985 so as to show the intention of the testator by way of extrinsic evidence that submission was not repeated before us. In the High Court the judge held that he could not admit extrinsic evidence of the contents of the two previous wills because of the decision of this Court in Rowe v Law [1978] IR 55. It is right to say that no evidence was forthcoming as to the intention of the testator by anybody who had anything to do with the drafting of the will since, as I have said, the identity of the actual draftsman remains a mystery. It might be that on the authority of Rowe v Law even that evidence would not have been admissible but the parties on being asked whether they wanted to have Rowe v Law reconsidered said that they did not. Counsel on behalf of the Attorney General has asked for the admission of extrinsic evidence simply to prove that the testator made two previous wills in which there was no element of intestacy and that it was unlikely that he would have intended such intestacy as would appear to have occurred by a literal reading of the will in question,
I reserve for further consideration the question whether the majority judgments in Rowe v Law correctly represent the extent of the amendment of the law effected by the enactment of s. 90 of the Succession Act 1965 for a case where the matter is debated. I do not believe that the admission of extrinsic evidence to prove that the testator made previous wills in which there was no *12 intestacy is necessary to establish what the testator’s intention was in this case.
I entertain no doubt whatever that the testator did not intend an intestacy and if that result were to come about it would be as a result of defective draftsmanship of the will.
I have no doubt that what the testator intended was that in the event of his selling his dwelling-house in his lifetime that his estate (including the proceeds of the sale of the dwelling-house) should be divided in the way that he set out in his will (subject to the necessity to make a mathematical correction concerning the addition of the percentages). However, the missing words were probably as few as these, viz to insert after ‘… I direct that my estate both real and personal which I die possessed of [and] to which at my death I may be entitled’ the words ‘(including the proceeds of the sale of my dwelling-house, if sold, but not otherwise)’ be divided….’
The first duty of a court in construing a will is to give effect to the intention of the testator. Clearly, without any question of resort to extrinsic evidence, the testator cannot have intended to die intestate as to most of his estate just because his dwelling-house had not been sold in his lifetime.
In the case of In re Patterson, deceased; Dunlop v Greer [1899] 1 IR 324, Porter MR said at p. 331:
It is the duty of a court of construction to ascertain, if it be possible, what the testator really meant from the language he has used. That does not mean that the exact words he has used are in all cases to be followed in their literal meaning, even if it be plain that to do so would frustrate the real intention. If, having considered the will and the whole will, it is plain that to place a literal meaning upon one clause would defeat the clear intent, it may be necessary to ‘do violence’ (as an eminent judge once expressed it), to the language used. The thing to be ascertained is what was the man’s will.
Porter MR then went on to quote the fourth proposition set out in Hawkins, Construction of Wills as follows:
… the intention of the testator, which can be collected with reasonable certainty from the entire will, with the aid of extrinsic evidence of a kind properly admissible, must have effect given to it, beyond, and even against, the literal sense of particular words and expressions. The intention, when legitimately proved, is competent not only to fix the sense of ambiguous words, but to control the sense even of clear words, and to supply the place of express words, in cases of difficulty or ambiguity
The Master of the Rolls went on to warn however that great care must be taken in applying this doctrine. It must be clear not alone that words have been omitted but also what the substance of the omitted clause is because otherwise *13 the court would be not construing but making a will (at p. 332 of the report).
A judge is to tread cautiously so as not to offend against the judicial inheritance which is that one is entitled to construe a will but not to make one. However, two injunctions are on a collision course in this case: one is that a court is not entitled to make a will for a testator but on the other hand there is the requirement that effect should be given to the intention of the testator, if at all possible. If the will is given a literal meaning then the intention of the testator is clearly defeated and an absurd result is produced. It seems to me clear that what the testator did intend was to provide for a situation where his dwelling-house had been sold so that the proceeds thereof could go to and be part of the whole of his estate and, in that event, Catherine O’Mahony was to be provided for to the extent of 10% of the whole estate. If, however, the house was not sold (as happened in the circumstances of the case) then she got the ‘bonus’ so to speak of the house together with 10% of the residue.
On any reading of Rowe v Law it is clear that all the judges accepted that the Oireachtas intended an extension of the law so as to give effect to the intention of the testator; this was in relation to extrinsic evidence. But regard should be had to this extension of the law in looking at the actual construction of the will in question. This is to give further pre-eminence to the intention of the testator. To repeat what Porter MR said we should give effect to the person’s will. Here I believe that when it is reasonably clear that a simple clause will supply a proper sense to this will — while one cannot with certainty say that that is what is intended one can at least say that the overwhelming likelihood is that that is what was intended — then I believe that sense should be applied to the particular will. I have no difficulty in saying that the phrase that I have suggested earlier in this judgment should be supplied to give efficacy to what the testator intended.
The only remaining question concerns the fact that there was an error in mathematics as regards the percentages but that is clearly a further slip on the part of the draftsman and can properly be corrected by directing that each individual bequest should abate proportionately having regard to the size of the shares so as to leave 100% rather than 100.5% to be divided.
In the Matter of the Estate of Mary Francis Collins
Joseph O’Connell and Alma O’Connell v. Governor and Company of the Bank of Ireland and Bank of Ireland Trustee Co. Ltd
1996 No. 264
Supreme Court
19 May 1998
[1998] 2 I.L.R.M. 465
(Nem. Diss.) (Hamilton CJ, O’Flaherty, Keane, Murphy and Lynch JJ)
KEANE J
(Hamilton CJ, O’Flaherty, Murphy and Lynch JJ concurring) delivered his judgment on 19 May 1998 saying:
The factual background
The factual background to these proceedings should first be summarised. The deceased named in the title, Mary Frances Collins, was a widow who lived in a house at 14 Mount View Terrace, St. Lukes, in the city of Cork. She died on 6 January 1994, having made her last will dated 15 December 1993, a grant of probate of which was issued to the defendants/respondents (the executors named therein) on 31 August 1994.
Clause 4 of the will was as follows:
I leave and bequeath all the contents (other than cash and securities) of my residence at 14 Mount View Terrace aforesaid to Joe and Alma O’Connell of 9 Inchvale Avenue, Shamrock Lawn, Douglas, Cork.
The two beneficiaries named in that bequest are the plaintiffs/appellants in these *468 proceedings.
There follow a number of pecuniary legacies, some of them to named charities, and there is then a residuary clause in the following terms:
6. I leave devise and bequeath all the rest residue and remainder of all my property of whatsoever nature and kind both real and personal of which I shall die possessed or entitled to the superioress for the time being of the Sisters of Charity, St. Patrick’s Hospital, Wellington Road, Cork for the charities under her care.
There was no specific bequest of the deceased’s house.
Mrs Bernadette Healy, a neighbour of the deceased, who was also on terms of close friendship with her, said in an affidavit that she had told the first named plaintiff on the morning of her death that the plaintiffs had been left the house and gave him a key of the house which she had in her possession. She also gave him a briefcase containing personal documents of the deceased, including a photocopy of the original will. The first named plaintiff then realised that only the contents of the house had in fact been left to him and his wife and this was confirmed when he went to see the solicitor who acted on behalf of the deceased.
Mrs Healy said that, for some period prior to her death, the deceased had spoken to her about changing her will and had said that she wanted the plaintiffs to have her house, because they had a young family and she thought this would be of some benefit to them. Mrs Healy said that she told the deceased to be sure to tell her solicitor that the contents were to be left to the plaintiffs in the will, because if the house was left on its own, the contents would not go to the plaintiffs. Mrs Healy said that her reason for emphasising this to the deceased was that she had recently been talking to a friend of hers who had been making a will and had been advised of the importance of leaving the contents along with the house when leaving the house to her son. She told the deceased that ‘there could be trouble about the contents’ if they were not included with the house. She said that before the deceased left for the hospital where she subsequently died shortly after Christmas 1993, she again said that she hoped the house would be ‘of good use’ to the plaintiffs. It was on that occasion that she gave the briefcase to Mrs. Healy. Mrs. Healy said she was very concerned to discover subsequently that the plaintiffs had not in fact been left the house, since she attributed this to the emphasis she laid in her conversation with the deceased on the importance of mentioning the contents.
The first named plaintiff said that on Christmas Day, 1993, the deceased came to his house for Christmas dinner, which she did every year. A few days prior to that, she had told him on the telephone that she had something that she wished to discuss with him and the second named plaintiff. On Christmas Day, *469 she told him that she had been to her solicitors about ten days previously, that she had made a will and that she had left her house and contents to the plaintiffs. She added that the contents were not worth much, but that there was no point in leaving them the house without the contents. She also said that she was happy with what she had done and that, when she died, the plaintiffs should get in touch with her solicitors about the house.
The deceased had made three earlier wills in 1952, 1972 and 1987. They were all made, however, when her husband was alive and they had decided to make mutual wills. While there were different provisions in each of the wills, the house was not specifically bequeathed in any of them: it passed with the residue of her property in each case to her husband. There were then other provisions for what was to happen in the event of his predeceasing her.
The solicitor who prepared the will, Mr Gerald Moloney, in an affidavit said that the deceased called to him by appointment on 13 December with a view to making changes in her will. Mr Moloney said that they discussed her previous will and she then gave her instructions to him which he noted on an attendance docket. She dealt initially with the residue and indicated that she had been very impressed by the manner in which the Mary Mount Hospice had looked after her late husband and that she wanted to leave the residue to them rather than to the several charities which had been named in her earlier will. She also indicated that she wished to change two of the pecuniary legacies in the 1987 will and Mr Moloney said that he noted those changes. She had brought with her a list of five names and addresses and said that she wished to leave £500 to each of them. He said that he photocopied the list and retained the photocopy giving her back the original list, while he noted the fact that each was to have a legacy of £500. Mr Moloney then said that he asked the deceased whether there was anything else and she then told him that she had been thinking of leaving something out of the house to the first named plaintiff, who was already mentioned in her earlier will. Mr Moloney’s recollection was that, when it became apparent to him that she was not sure what she had in mind, he suggested that she might consider leaving him the entire contents of the house. She said that she agreed with that suggestion and that she would leave the contents to both plaintiffs. He noted on the reverse side of the docket that all the personal effects and the contents of the house were to go to them. At that stage, she said that she was not absolutely sure that they were still at the address given in the 1987 will, but that she would check it and let him know. She enquired when the will would be ready and he made an appointment with her for 15 December.
Mr Moloney said that he subsequently dictated a draft will incorporating the changes which he had noted and on the following day received confirmation by telephone as to the address of the plaintiffs. He said that on 15 December, when the deceased called by appointment, he told her that the will was ready and suggested that he would go through it with her. He said that he then read over *470 the will clause by clause, but paraphrasing each clause rather than reading it out word for word. He said that in his opinion she had no difficulty in hearing what he said and appeared perfectly to understand the contents of the will. When he had finished, she confirmed that was what she wanted and the will was then executed by her in the presence of Mr Moloney and another member of his firm, each of them signing the will as witnesses.
The proceedings
The present proceedings were instituted by way of special summons and the special endorsement of claim sought answers to the following questions which were said to arise out of the terms of the will of the deceased:
(a) Whether clause 4 of the said will of the deceased carries into effect the expressed intention of the deceased in the disposal of her house at 14 Mount View Terrace, St. Lukes in the City of Cork.
(b) Whether the deceased could have intended to leave only the contents of the house to the plaintiffs, thereby leaving no specific bequest of her dwelling house, which was a major asset of her estate.
(c) If the answers to the questions above are in the negative, whether the dwellinghouse forms part of the residue of the estate of the said deceased.
The summons also sought the following relief:
2. If the answers to the questions I(a) and I(b) are in the affirmative, an order directing the words ‘my dwellinghouse and’ be inserted to clause 4 of the said will after the words ‘I leave and bequeath’ so that clause 4 of the said will reads as follows:
‘I leave and bequeath my dwellinghouse and all contents (other than cash and securities) of my residence at 14 Mount View Terrace aforesaid to Joseph and Alma O’Connell of 9 Inchvale Avenue, Shamrock Lawn, Douglas, Cork.’
3. In the alternative, a declaration that the residuary legatee and devisee in all the circumstances holds the said dwellinghouse of the deceased upon trust for the plaintiffs.
The action came on for hearing in the High Court before Barron J and all the witnesses already referred to gave oral evidence to the same effect as what they had said on affidavit. There was also evidence by a Mr William J.A. Rea who said that he was very well acquainted with the deceased and her husband and that he had on several occasions been given to understand that, when they were both dead, most of the estate would go to the first named plaintiff.
*471
The action was dismissed by the learned High Court judge. It was acknowledged on behalf of the plaintiffs that, having regard to the decision of this Court in Rowe v. Law [1978] IR 55, they could not avail of s.90 of the Succession Act 1965 (hereafter ‘the 1965 Act’) so as to rely on extrinsic evidence adduced as to the intentions of the deceased, in the absence of any ambiguity in the will itself. They relied, however, on another decision of this Court in Curtin v. O’Mahony [1991] 2 IR 562 as entitling the court to grant the relief which they sought.
In his judgment, the learned High Court judge said that he was satisfied that the case of Curtin v. O’Mahony was distinguishable from the present case. He considered that no ground had been established for construing the will other than in accordance with its terms. He added:
The present case is particularly hard for the plaintiffs since I preferred the evidence of the witnesses for the plaintiffs to that of the solicitor who prepared the will. While it may have been possible that the deceased was so concerned to ensure that the contents were left to the plaintiff as well as the house as to forget to mention the house, I cannot accept that the express instructions which she gave her solicitor did not include reference to either her house or its contents. Nor can I accept that she only dealt with the contents because she communicated an uncertainty to her solicitor who elicited from her a wish to leave the plaintiffs an item from her home. I am quite satisfied on the evidence which I have heard that the testatrix intended to leave the plaintiffs the house as well as the contents thereof. I fully appreciate Mrs. Healy’s worry that her insistence to the deceased to be sure to leave the contents as well as the house has been the cause of what occurred.
From that decision, the plaintiffs have appealed to this Court. The defendants have also served a notice to vary the order as to costs made in the High Court, one of the grounds advanced being that the learned trial judge erred in law and on the facts in preferring the evidence of the witnesses for the plaintiffs to that of the solicitor who prepared the will.
On the hearing of the appeal to this court, it was submitted on behalf of the plaintiffs by Mr Brian Spierin that the decision in Rowe v. Law was wrong in law and should be overruled. It would then follow, in the light of the findings of fact made by the trial judge, that the plaintiffs were entitled to the relief which they had sought. They would, in any event, he submitted, be entitled to that relief, having regard to the decision of this Court in Curtin v. O’Mahony.
On behalf of the defendants, Mr Frank Clarke SC submitted that the decision of this Court in Rowe v. Law was correct in point of law and should not be overruled. He further submitted that the trial judge was correct in treating the decision in Curtin v. O’Mahony as entirely distinguishable from the present case.
*472
S. 90 of the 1965 Act and Rowe v. Law
S. 90 of the 1965 Act, which appears in Part VII under the heading ‘WILLS’, provides that:
Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.
In Rowe v. Law, the testatrix had directed her executors and trustees to set aside a sum of £1,000 in the purchasing and furnishing of a ‘suitable cottage residence’ for two named persons who were residing with her and, subject thereto, as ‘to any balance then remaining’ to pay the income to the persons concerned during their joint lives and to the survivor during his or her life. As and from the death of the survivor, the sum of £1,000 or the investments representing it, was to go to a named legatee. After payment of one further legacy, the remainder of the estate was to go, both as to capital and income, to the plaintiffs.
There was a conflict of evidence on affidavit between the first named plaintiff and the first named defendant, who was the solicitor who prepared the will. The former said that he was present when the testatrix gave instructions for the will to the first named defendant and that her expressed intention was that the balance of the estate was to pass to the plaintiffs. The solicitor said that her instructions were that the balance of the total estate should go to the persons given the life interest in the cottage. In the High Court, Kenny J held that there was no ambiguity in the terms of the will and that, accordingly, extrinsic evidence was not admissible to show the intention of the testatrix. That conclusion was upheld on appeal by a majority of this Court (Henchy and Griffin JJ), O’Higgins CJ dissentiente .
All three judges in this Court upheld the finding of Kenny J at first instance that the terms of the will were clear and unambiguous and contained no contradiction. In those circumstances, the majority were of the view that s.90 could not be invoked so as to allow extrinsic evidence to be adduced as to the intention of the testatrix with the purpose of incorporating in the will different or additional provisions.
O’Higgins CJ, however, was of the view that s.90 also applied in a situation where there was a contradiction between the actual intention of the testator and what was said in the will and that this would include situations in which an error had been made by a solicitor or other person in the preparation of the will. The only such evidence which could be admitted, however, was what was said and done at the time of the making of the will.
In this case, as in Rowe v. Law, the terms of the will are clear and unambiguous. The house, not having been specifically bequeathed to the plaintiffs or to anyone else, passed with the residue and all that went to the plaintiffs was the contents. There was, however, evidence which was accepted by the trial judge *473 that the will in so providing was at variance with her expressed intention at the time. But if Rowe v. Law was correctly decided, the extrinsic evidence as to the intentions of the deceased was not admissible under s.90 and it would follow that (subject to the alternative submission founded on Curtin v. O’Mahony) the appeal would inevitably fail.
In the course of his judgment in Rowe v. Law [1978] IR 55 at p. 72, Henchy J. said:
I read s. 90 as allowing extrinsic evidence to be received if it meets the double requirement of (a) showing the intention of a testator and (b) assisting in the construction of, or explaining any contradiction in, a will. The alternative reading would treat the section as making extrinsic evidence admissible if it meets the requirement of either (a) or (b). That, however, would produce unreasonable and illogical consequences which the legislature could not have intended. If the section made extrinsic evidence admissible merely because it satisfies requirement (a), then in any case the court could go outside the will and receive and act on extrinsic evidence as to the intention of the testator. The grant of probate would no longer provide an exclusive and conclusive version of the testamentary intention as embodied in the will. However, it would be unreasonable and contradictory for the legislature, on the one hand to lay down in s. 78 the formal requirements for the disposition of one’s property by will, and on the other to allow by s.90 (without qualification or limitation as to purpose or circumstances or time) extrinsic evidence of the intention of the testator to be admitted. Such a sweeping and disruptive change, fraught with possibilities for fraud, mistake, unfairness and uncertainty, should not be read into the section if another and reasonable interpretation is open.
Griffin J, who also emphasised the fact that s.78 of the 1965 Act set out in detail the formalities necessary for a valid will, said at p. 27:
If extrinsic evidence of the dispositive intention of a testator is to be admitted without qualification, the effect of this would be that a new will could be written for the testator, this will to be collected from the statements and declarations of the deceased at the time of, before, or after the making of the will, without compliance with the provisions of s. 78. The effect of this would be to nullify those provisions and to render ineffective the safeguards provided therein.
O’Higgins CJ, in his dissenting judgment, having referred to the legislative history of the 1965 Act as it progressed through the Oireachtas, summarised his conclusions as follows at p. 67:
In fact a true construction of the will cannot be other than a true reflection of the intention of the testator. If there is a difference between them, then it is indisputably clear that the actual intention of the testator has not been reflected in the *474 construction of the will. As the law stood before 1965, it was not possible to ensure against such an event and there is ample evidence to show that in many cases construction of particular wills did not reflect the intention of the testator. The problem before the Oireachtas was to change the law to enable that position to be achieved, i.e. to get rid of the general rule which rendered inadmissible any such extrinsic evidence for the purpose of ascertaining the actual intention of the testator as well as for the purpose of explaining contradictions within the will itself.
The law prior to the 1965 Act
The law as it stood prior to the enactment of the 1965 Act should first be considered.
The general principle was and is that, in construing a will, the object of the court is to ascertain the expressed intention of the testator. The law was thus stated by Lord Simon LC in Perrin v. Morgan [1943] AC 399 at p.406:
The fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case — what are the ‘expressed intentions’ of the testator.
The general rule also was that extrinsic evidence of a testator’s declarations of intention as to the meaning to be put on the language of his will was not admissible as direct evidence of his testamentary intention.
In In re Julian [1950] IR 57 at p. 62, Kingsmill Moore J said:
The Wills Act requires that wills should be in writing, duly witnessed and signed, and to admit direct parol evidence of intention to control the meaning of the will would be to nullify the statute. In two cases only, as far as I know or have been able to ascertain, is such evidence allowed; to rebut or support certain bare legal presumptions and to determine which of several persons or things are comprised in a truly equivocal description, that is to say, a description which applies accurately to two different persons or objects.
In a later part of his judgment in that case, the learned judge refers to another category of cases in which extrinsic evidence may be admitted, not strictly speaking as evidence of the intention of the testator, but rather of circumstances existing at the date of his death which he might have had in mind and which accordingly might assist the court in the construction of the language used in the will. James LJ in Boyes v. Cooke (1880) 14 Ch D 53 said:
You may place yourself, so to speak, in [the testator’s] armchair and consider the *475 circumstances by which he was surrounded when he made his will to assist you in arriving at his intention.
Such evidence was admitted, not as direct evidence of the testator’s intention, but rather as circumstantial evidence which assisted the court in inferring what the testator’s intention was. Under this rule — sometimes referred as ‘the armchair principle’ — evidence could be adduced as to the testator’s knowledge of and relations with the different persons or institutions who claimed to be the object of a gift under his will.
The policy underlying these decisions was clear: the detailed requirements of the legislature as to the execution, attestation and publication of wills could not, in general, be circumvented by allowing parol evidence to be admitted as to the intentions of the testator, save in the limited circumstances to which I have referred. However, the strict application of those principles by the courts led on occasions to perplexing results, of which in In re Julian itself is a remarkable example.
In that case, the testatrix in her will left a sum of £1,000 ‘to the Seamen’s Institute, Sir John Rogerson’s Quay, Dublin’. Two institutions claimed the sum, the Dublin Seamen’s Institute, Eden Quay, and the Catholic Seamen’s Institute, Sir John Rogerson’s Quay. One of the objects of each institution was to provide for the religious needs of seamen, in the case of the first by purely Protestant religious teaching, in the case of the second by exclusively Roman Catholic religious teaching. The undisputed evidence was that the testatrix, who happened to be a Protestant, knew the first institute well, had visited its premises and had subscribed to its funds. There was no evidence that she had ever heard of, or been interested in, the second institute. However, Kingsmill Moore J considered he was bound by the authorities to hold that this was not a true case of equivocation, since that exception to the general rule only applied where the description in the will applied accurately to two different objects. In the instant case, it applied partly to one object and partly to another, but accurately to neither. Hence, the evidence as to the intention of the testator was not admissible and, since the only seamen’s institute on Sir John Rogerson’s Quay was the Catholic Seamen’s Institute, the learned judge felt coerced to hold that, in the absence of admissible parol evidence as to her intention, the will would have to be construed as referring to that institute. He added at pp. 65–66:
I regret having to give this decision, for the evidence which I have excluded, if I were allowed to take it into account, would convince me to a moral certainty that the testatrix intended to benefit the Dublin Seamen’s Institute ….
This is by no means the first — and, equally certainly, will not be the last — case in which a judge has been forced by the rules of law to give a decision on the *476 construction of a will which he believed to be contrary to the intentions of the testator.
Conclusions
S. 90 of the 1965 Act was, at the least, intended to alter the law by enabling extrinsic evidence to be adduced as to the intention of the testator where that would assist in the construction of, or explain contradictions in, the will. The submission on behalf of the plaintiffs, however, is that it was intended to go radically further and enable such evidence to be adduced, not merely with the view to resolving ambiguities or uncertainty in the language used, but to supplement, and even to contradict, what the testator had actually said, however clearly and unambiguously, in the will itself.
If the latter was indeed what the Oireachtas intended, then s.90 should, in logic, have read simply:
Extrinsic evidence shall be admissible to show the intention of the testator.
The remaining words of the provision are, on the interpretation put forward on behalf of the plaintiffs, superfluous since, on that reading, parol evidence of the intention of the testator is admissible in every case, and not simply where it assists in resolving ambiguities or explaining contradictions in the will.
The alternative construction, which was upheld in the High Court and by the majority of this Court in Rowe v. Law, is that extrinsic evidence was henceforth to be admissible as to the intention of the testator, not merely in the severely confined category of cases already referred to, but in every case where it assisted in the construction of, or resolved contradictions, in the will. That reading of the section is not only logical, but in grammatical terms is consistent with the use of the conjunctive ‘and’ rather than the disjunctive ‘or’. There are thus two conditions which must be met before such evidence is admissible: it must assist in the construction of the will or resolve a contradiction and it must, in either event, show what the intention, in the particular context, of the testator was.
Any other construction of s.90, as the judgments of Henchy and Griffin JJ in Rowe v. Law made clear, would have led to a radical and far reaching change in the law which it cannot have been intention of the Oireachtas to bring about by such, at best, opaque and ambiguous language. As Griffin J pointed out, where evidence of intention was admissible at common law, declarations made by the testator before, after and contemporaneously with the will were all admissible. He added at p.77:
If s.90 is to be given the interpretation contended for by the appellants, I see no reason whatever why the same rule should not apply as applied at common law *477 when extrinsic evidence was admitted, and why declarations made by a testator years before or after the making of the will should not be admissible. To hold otherwise would require reading into the section limitations that are not there.
The authorities cited by Griffin J make it clear that this was the position at common law. In Doe d. Allen v. Allen (1840) 12 Ad & E 449, which was a case of equivocation, Lord Denman CJ said:
The only remaining point is, whether the time when these declarations were made, viz. some months after the will was executed, makes any difference. Cases are referred to in the books to show that declarations contemporaneous with the will are alone to be received: but, on examination, none of them establish such a distinction. Neither has any argument been adduced which convinces us that those subsequent to the will ought to be excluded, wherever any evidence of declarations can be received. They may have more or less weight according to the time and circumstances under which they were made, but their admissibility depends entirely on other considerations.
It is true that in an earlier case of Langham v. Sanford (1816) 19 Ves 654, Lord Eldon LC said that most weight was to be given to what was said at the time the will was made, but the general principle was stated by him as follows:
it is unfortunate, but it is certainly settled, that declarations at the time of making the will, subsequent and previous to it, are all to be admitted: yet we know, that what men state as to their intentions may be conformable to the purpose at the time, but not afterwards; and declarations by a testator, after having made his will, are frequently made for the purpose, not of fairly representing, but of misrepresenting, what he had done.
It would thus follow, if the plaintiffs’ submission is well founded, that the will of a deceased person could consist of various statements, written and oral, which he or she had made during the course of his or her life and that, to the extent that they supplemented, varied or contradicted the terms of the will of the deceased as admitted to probate, they, rather than the will so proved, would constitute the effective testamentary document. That far reaching conclusion is supported neither by the language of s.90 nor the policy, in this context, of the 1965 Act and the earlier legislation which it replaced or re-enacted.
In his dissenting judgment in the same case, O’Higgins CJ drew attention to the legislative history of the 1965 Act as supporting his view that a more radical change in the law was intended to be effected by s.90. When the Bill was first introduced, the relevant provision read:
Extrinsic evidence shall be admissible to assist in the construction of a will or to explain any contradiction therein.
*478
He added at p. 67:
As passed, the section expressly provides for extrinsic evidence to show the intention of the testator where no such words had been contained in the corresponding section of the bill as introduced. It seems clear that in the section as enacted an indissoluble link has been created between the testator’s intention and the construction of the will.
I cannot, with respect, agree that this alteration in the terms of the provision during its passage through the Oireachtas supports the conclusion reached by the learned Chief Justice in that case. Had the words as to the intention of the testator been omitted, the provision might simply have stated the existing common law position, since, as I have made clear, extrinsic evidence was already admissible to assist in the construction of a will, e.g. under the armchair principle, but not in the form of direct evidence of the intention of the testator, save in very confined circumstances. Hence, without the addition of the reference to the intention of the testator, the section might well have been construed by the court as being simply declaratory of the existing law.
O’Higgins CJ also commented as follows on the decision in In re Julian at p.67:
If s.90 had existed when In re Julian was decided the result would have been otherwise, and I have no doubt that it was passed for the purpose of dealing with that kind of case. Of course, if the section were to be interpreted in the manner in which the learned trial judge interpreted it, no change would be possible in cases such as In re Julian because, as in this case, the words used in the will are unambiguous and clear and no contradiction exists.
Again, I cannot, with respect, agree. A description of the object of the testatrix’s bounty as ‘the Seamen’s Institute, Sir John Rogerson’s Quay’ when there were in fact two seamen’s institutes in Dublin, one called ‘the Dublin Seamen’s Institute’ and situated at Eden Quay, the other called ‘the Catholic Seamen’s Institute’ and situated at Sir John Rogerson’s Quay could hardly be regarded as a clear and unambiguous description of the institute intended to be benefited.
I am satisfied that the decision of the majority in Rowe v. Law was correct in point of law and should be upheld. There remains the argument advanced on behalf of the plaintiffs founded on the decision of this Court in Curtin v. O’Mahony.
The facts in that case were as follows. The testator, who was a widower with no children, left an estate valued in excess of £100,000, which included a dwellinghouse sold after his death. In the will, he left this house to a lady absolutely, or in the event of her predeceasing him, to her husband. The will then provided that, in the event of the testator selling the dwellinghouse, his estate *479 should be divided into percentage shares for a number of charitable and other bequests. The dwellinghouse had not been sold at the time of his death.
This was, to put it mildly, a mystifying provision: there seemed no reason why the disposition of his entire estate to a number of charitable and other beneficiaries in specified proportions should be dependent on the happening of an apparently irrelevant event, i.e. the sale of the dwellinghouse. Yet there was no provision for what was to happen in the event of the house having been unsold at his death, as it was. To add to the confusion, the percentages in which the estate was purportedly distributed in the event of the house being sold amounted to 100.5%.
In these circumstances, it was held by this Court, reversing the judgment of the High Court, that the overwhelming probability was that the testator must have intended a similarly proportionate distribution of the estate, in the event of the house not having been sold at his death and that the will should be construed accordingly. In the High Court, Lardner J had refused to admit extrinsic evidence of the contents of two previous wills as indicating the intention of the testator, considering himself bound so to hold by the decision in Rowe v. Law. However, although that finding was appealed, no argument in support of that ground of appeal was advanced in this Court.
I have no doubt that the decision in Curtin v. O’Mahony is entirely distinguishable from this case. First, the will in that case, literally construed, would have led to an intestacy, which could not have been the intention of the testator; there is indeed a presumption against intestacy. It may be noted, in this context, that s.99 of the 1965 Act provides that:
If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.
That provision is clearly intended to ensure that, where the wording of a will allows of more than one construction, it should be interpreted, if possible, so as to avoid an intestacy arising. It is not specifically referred to in the judgments in Curtin v. O’Mahony, but it is clear from the observations of O’Flaherty J (at p.573) that the presumption against intestacy was of paramount importance in that case. No question of intestacy, however, arises in relation to the will in the present case.
Secondly, the court reached its conclusion solely having regard to the language of the will itself. Accordingly, it did not have to consider the question which has arisen in this case, i.e. as to the extent to which extrinsic evidence showing the intention of the testator is admissible under s. 90 of the 1965 Act.
I am, accordingly, satisfied that the decision of Barron J was correct. There is, however, one other matter to which I should refer. During the course of the *480 arguments, members of the court drew attention to the fact that, in the event of the plaintiffs’ claim being successful, the interests of the residuary legatee, which is a charity, would be seriously affected and, depending on the effect of any order as to costs made in the High Court or in this Court, so also might be the interests of a number of other charitable legatees mentioned in the will. None of these parties was joined in the proceedings nor, it would appear, was the Attorney General even notified of their existence.
This Court has recently drawn attention in In re B. deceased; E.B. v. S.S. [1998] 2 ILRM 141 to the importance of notice being given by the parties to proceedings such as this, where the interests of charities may be affected by the outcome, to the Attorney General as the protector of charities. The court was informed by Mr Clarke in the present case that the superioress of St. Patrick’s Hospital had been told of the proceedings and had indicated that she was happy to leave the protection of the interests of her institution to the defendants. The court was of the view that, in these circumstances, no useful purpose would be served at this stage, and that further delay and costs might well be incurred, if the proceedings were to be adjourned so as to enable the Attorney General to consider whether he should apply to be joined as a party. That should not be taken as relieving parties of their obligation to notify the Attorney General in future of cases such as the present where the interests of charities may be affected.
I would dismiss the appeal, affirm the order of the learned High Court judge and make no order on the notice to vary.
Marren v Masonic Havens Limited
[2011] IEHC 525
JUDGMENT of Mr. Justice Roderick Murphy delivered the 11th day of November, 2011
1. By special summons dated the 26th May, 2010, the plaintiff, as sole executor of the deceased, issued proceedings against the defendant company in relation to the beneficiary residual estate of the deceased. The special endorsement of claim recited as follows:-
“Whereas:
1. Edna O’Flynn, widow, of Springfield, Scholarstown Road, Rathfarnham, Dublin 16, deceased died on the 9th October, 2000, having made her Last Will and Testament on the 24th July, 1986. Probate whereof issued forth of the Probate Registry to her sole Executor, Martin E. Marren on the 17th October, 2001.”
2. The Testatrix died a widow without issue her surviving. Her husband, beneficiary under the terms of the said Will, predeceased her, having died in 1996. She died without issue.
3. After certain specific devices and bequests to the main beneficiaries, the Testatrix devised the residue of her Estate to five specific entities or bodies. The Residuary Clause in the said Will demonstrates general charitable intent on the part of the Testatrix.
4. The Residuary Clause in the Last Will and testament provides as follows:-
“All the rest residue and remainder of my property I GIVE DEVISE AND BEQUEATH equally between –
(i) The Chairman of the board for the time being of the Meath Hospital for the charitable purposes of that hospital;
(ii) The Authorised Officer for the time being of the Irish Cancer Society Limited of No.5 Northumberland Road, Dublin 4, for the charitable purposes of the Society;
(iii) The Committee for the time being of The Haven, Blackrock, for the charitable purposes of that Body;
(iv) To the Rector for the time being of St. Anne’s Church, Dawson Street, for the upkeep and maintenance of the said Church;
(v) To the Rector for the time being of Whitechurch, Whitechurch Road, Rathfarnham, for the upkeep and maintenance of the said Church.”
5. The devises to the 1st, 2nd, 4th and 5th named Residuary Devises and Legatees are uncontroversial and have been partially affected.
6. Issues had arisen regarding the intended object of the charitable bequest “to the committee for the time being of The Haven, Blackrock, for the charitable purposes of that Body”. Demonstrably the intention of the Testatrix was charitable and it is expressly stated to be so. The exact identity of the beneficiary/object is not definitively clear.
7. It would appear that the deceased married one Dr. Bertrand O’Flynn. He predeceased the Testatrix dying in 1996, some twelve years after the execution of her Will. It would appear that the Deceased’s husband’s involvement with the Masonic Havens Limited was as follows. He was proposed a member of Ionic Lodge No. 429, on the 16th January, 1934. He received his first Degree on the 22nd May, 1943, his second Degree on the 26th May, 1943 and his third Degree on the 29th May, 1943. He went on to join Lodge No. 12, Dublin, in 1960. He was also a member of the Royal Arch Chapter, No. 171, Dublin, from 1949, University Preceptry, Dublin from 1953 and original Chapter of Prince Masons, Dublin from 1963.
8. It is asserted by the Grand Lodge of A.F. and A. Masons of Ireland that the deceased’s husband was “an extraordinarily diligent and supportive member”.
9. Masonic Havens Limited a company limited by guarantee which is the first named defendant to these proceedings, was incorporated on or about the 17th April, 1975. It is registered as a charity with the Revenue Commissioners Charities Branch and as such enjoys charitable status, pursuant to s.205 of the Taxes Consolidation Act 1997.
10. Masonic Havens Limited was incorporated as a charity with a view to providing sheltered accommodation for elderly persons. In the early 1980s the charity purchased a property at Carrickbrennan Road, Monkstown, Co. Dublin, whereupon apartments and bungalows were constructed. The project was funded and supported by members and friends of the Masonic Order through gifts and bequests.
11. This sheltered accommodation project was commonly known as “The Haven”, particularly by members of the Masonic Order. Whilst the correct postal address of the charitable enterprise is “Monkstown” it is situate less than one mile from Blackrock.
12. There is no known charity ascertained operating under the name of “The Haven” in Blackrock. The only charitable enterprise operating in the area under the name “The Haven” is a sheltered accommodation being operated by Masonic Havens Limited in Carrickbrennan Road, Monkstown, Co. Dublin.
13. The plaintiff/executor requires the following issues to be determined:-
(a) Whether the said bequest demonstrates general charitable intent,
(b) Whether on its true construction the words “To the Committee for the time being of The Haven, Blackrock, for the charitable purposes of that body” demonstrates non equivocal intention on the part of the testatrix to benefit Masonic Havens Limited and, in particular, their sheltered housing for the elderly project known as “The Haven” otherwise Carrickbrennan Road, Monkstown in the County of Dublin?
(c) If not, whether extrinsic evidence is admissible to demonstrate the true intention of the testatrix to benefit the charity known as Masonic Havens Limited, which operates the sheltered housing for the elderly at Carrick Manor Carrickbrennan Road, Monkstown, Co. Dublin.
(d) If the answer is to (a) is yes and to (b) and (c) is no, does the gift lapse or does the doctrine of Cy-Pres apply?
(e) If yes, whether having due regard to s. 47 of the Charities Act, 1961, and having regard to the spirit and intendment of the gift and the general charitable intent of the testatrix, the gift should be applied Cy-Pres to Masonic Havens Limited, registered charity number CHY 6135, for the purpose of the operation of their housing and accommodation for the elderly known as “The Havens”, Carrick Manor, Carrickbrennan Road, Monkstown, Co. Dublin.
(f) In the alternative, such order or direction with regard to the application of the said share of the residuary estate Cy-Pres, pursuant to s.47 of the Charities Act, 1961, as amended, or directing that the Commissioners to Charitable Donations and Bequests (exercise) its statutory powers.
(g) Such further or other order of direction as the court may consider appropriate.
(h) Such directions of this Honourable Court as are necessary to administer the Estate of the Deceased and complete the distribution of her assets.
2. Grounding Affidavit
The affidavit of Martin E. Marren, the sole executor, filed the 26th May, 2010, refers to the residence, death without issue and application for probate by the deponent.
The residuary clause is recited and a description of Masonic Havens Limited and of Dr. Bertrand O’Flynn, the deceased’s husband is also averred to.
Mr. Marren, in paras. 18 to 20, avers he believed and was advised by counsel that the language contained in the residuary clause in relation to the devise in question demonstrates general charitable intent on the part of the testatrix and that in the event that the gift should fail to the Masonic Havens Limited registered charity, that the provisions of s.47 of the Charities Act 1961, are engaged. He also refers to the application of Cy-Pres and that both the Commissioner for Charitable Donations and Bequests and the Attorney General have been notified in relation to the seeking of directions of the court and exhibited correspondence in relation thereto.
Mr. Marren referred to s. 29 of the 1961 Act as amended by the s. 8 of the Charities Act 1973, and as duly amended by s.16 of the Social Welfare (Miscellaneous Provisions) Act 2002, and in particular pursuant to the Schedule of the said Act, Part 2, that the Board of the Commissioners could deal with and frame a scheme for the application Cy-Pres of the said property should the need arise.
He averred that the value of entire residue was approximately €5 million and, accordingly, one fifth share of the same was worth approximately €1 million.
3. The Affidavit of David Young
Mr. Young, Chairman of Masonic Havens Limited, (the Company) sworn and affidavit on the 2nd December 2010. From the examination of the files and records of the company, he averred that the Masonic Havens Limed was a charitable company initially promoted by certain members of the Masonic Order and was incorporated on the 17th April, 1975 as a charity with the object of promoting exclusively charitable purposes including providing sheltered accommodation for elderly persons. He said that the Masonic Havens Limited was granted charitable status and he referred to the registered charity number CHY 135. He exhibited memorandum and articles of association and the certificate of incorporation.
He said that upon incorporation Masonic Havens Limited, purchased The Haven in Clonliffe Road in Dublin, a charitable institution of the European Refugee Home Charity and he said and believed that that property was always known and referred to as “The Haven”. That property was sold in the early 1980s and a house and site was purchased in Carrickbrennan Road, for which Masonic Havens Limited obtained planning permission for sheltered housing development. He said that the project was widely discussed among members of the Masonic Order as it represented a new charitable objective for the Masonic Order in the tradition of the Masonic Schools which had been the focus of previous Masonic charitable endeavours. He further said that the project was funded by members of the Masonic Order and by people of the area, and apartments and bungalows were built which now provide sheltered accommodation for elderly persons in need. He said that this property at Carrickbrennan Road was now known and referred to as “The Haven”. At the time the housing site was purchased, the project was widely discussed within the Masonic Order and the document entitled “The Haven Monkstown” was circulated among members. He exhibited that document entitled The Haven Monkstown together with a sketch of the existing house and the outline of the development to the side and rear.
The document informed members that “the present Haven in Clonliffe Road, will be sold and the existing residents accommodated in phase 1 at Monkstown”. The document informed members that “The New Haven, provides not only an opportunity to fulfil an urgent need for our brethren and their families”.
Mr. Young said that the words used by the testatrix, “to the Committee for the time being of “The Haven”, for the charitable purposes of that Body” is an accurate of the committee structure of Masonic Havens Limited which is run by a Committee made up of members of the Masonic Order, of which he was chairman.
There were further references in the document to The Haven Committee as follows:
(a) The Girls and Boys benefit fund have indicated to the Haven Committee that they will participate in the project … and
(b) The Haven Committee hopes that phase 2 would commence immediately and subsequently to the completion of phase 1.
He said that the document informed members that the development at Carrickbrennan Road would be in two phases, namely phase 1 which would provide residential and communal accommodation and phase 2 would comprise nine self contained single or double terraced dwellings.
Mr. Young said that the bequest provided for the in the deceased’s will to “The Haven, Blackrock”, which was the property at Carrickbrennan Road, which was known as “The Haven”, but was in Monkstown, though the property was located in the postal district of Blackrock. Accordingly, he said and believed that the bequests in the deceased’s will “the Committee for the time being of The Haven, Blackrock for the charitable purposes of that Body” was a bequest to the Masonic Havens Limited.
He said that the deceased’s husband, Dr. Bertrand O’Flynn was a Registrar and a very credited person within the Masonic Order and deposed to the details as appear in the special summons.
Finally, he deposed to the fact that Masonic Havens Limited, in pursuance of its exclusively charitable purposes, pursued a continuing programme of providing Masonic accommodation initially in the property known as The Haven at Clonliffe Road, and subsequently in “The New Haven” in Monkstown which was purchased and developed for sheltered accommodation. He said that Masonic Havens Limited currently ran two other projects, St. Joseph’s Nursing Home, a 43 bed nursing home in lagan Glebe, Virginia in Co. Cavan and St. Joseph’s Close, which is a sheltered housing for the elderly also in Virginia, Co. Cavan. Those properties were acquired approximately eleven years ago in 1999.
4. Affidavit of Michael Ward.
Mr. Ward is a senior member of the Masonic Order and was advised and understood that Ms. Edna O’Flynn, the widow of Dr. Bertrand O’Flynn, had left a bequest in her will to “the Committee for the time being of The Haven, Blackrock, for the charitable purposes of that Body”.
He said he knew Dr. Bertrand O’Flynn very well. They were both members of the same Knight Templar’s Preceptry at the same time, namely, University Preceptry and they were both members of the same original chapter of Prince Masons in the case of the Preceptry, from around 1969 and of the Chapter from 1972. He deposed to the fact that Dr. Bertrand O’Flynn, as a senior Mason, had keen interest in the Masonic charities and was very supportive of Masonic Havens Limited. He said that at that time, members of the Masonic Order commonly knew and referred to the Masonic Havens Limited as “The Haven” and this is how it continues to be known by members. He said that for his own part, he referred to Masonic Havens Limited as “The Haven” and if another member referred to “The Haven” he understood that that member was referring to the Masonic Havens Limited.
5. Affidavit of Aine Coghill
Ms. Coghill, Solicitor in practice of Martin E. Marren, Solicitors, said that firm were the solicitors on record in the above entitled matter. Edna O’Flynn, the deceased, died testate on the 9th October, 2000, a widow without issue and without issue of the above predeceased son or daughter and without parent, brother or sister. From inquiries to date it appeared that she died without issue of a predeceased sister, leaving her surviving one lawful and only nephew, namely Colin Hempenstall and one lawful and only niece Gail Gordon (nee Hempenstall) two of the children of Thomas Hempenstall who was the lawful of brother and who predeceased the deceased. From inquiries it appears that the deceased died without any other issue of a predeceased brother or sister, her surviving of the date of death.
She said she was in communication with and correspondence with Colin Hempenstall, who confirmed that his father’s names was Thomas Hempenstall and that he was the lawful brother of the deceased and that he predeceased the deceased. Colin Hempenstall confirmed that he had only one sister, named Gail Gordon and that he had only one brother namely, Thomas Hempenstall, who predeceased the deceased in 1998 and who had seven children (grandnieces and grandnephews of the deceased) who were alive at the date of the death of Edna O’Flynn. She said that she was informed by a Mr. Colin Hempenstall that his sister Ms. Gail Gordon resided at an address in New York and that she survived the deceased and had since died on the 30th November, 2009. Colin Hempenstall subsequently furnished the names and addresses of Gail Gordon’s two daughters, namely Rebecca Hickey and Hilary Gordon. He said that he had entered into correspondence with Gail Gordon’s daughters and they confirmed that they are named as executors in her last will and testament. He referred to correspondence between himself and Gail Gordon and between himself and Gail Gordon’s daughters and to correspondence referring to Rebecca Hickey and Hilary Gordon as the executors named in the last will and testament of their mother Gail Gordon.
She said that the legal persons who were the representatives of estate of Thomas Hempenstall, the nephew of the deceased, who predeceased the deceased in 1998 were represented by Messrs Christie & Co. Solicitors of Thomand House, Clonskeagh, Dublin 14 and he referred to correspondence between his firm and Christie & Co. Solicitors and to correspondence between his firm and Mr. Colin Hempenstall.
She was satisfied that from that correspondence that the legal personal representatives of the estate of Thomas Hempenstall, deceased, the legal personal representatives of estate of Gail Gordon, deceased and Mr. Colin Hempenstall were all satisfied that the High Court should adjudicate on the matter now before the court.
She referred to the sealed and certified copy of the last will and testament of Edna O’Flynn, deceased and to para. 3 of her will which confirmed the sum of IR£5,000- €6,348.69 was conferred upon the individuals set out in para. 3(f) of the will and testament which read as follows: “To my adopted nephew Patrick Robinson,… Molton, England”. She called upon Mr. Robinson to furnish a form of adoption papers to the offices of Martin E. Marren to prove that he was in fact a nephew of the deceased. Mr. Robinson, despite having been called upon to do so, never furnished the said documents. Mr. Robinson confirmed that the deceased and his mother were the best of friends and that for as long as he could remember he would refer to Ms. O’Flynn as “Aunt Edna”. However, he confirmed that his mother and the deceased were not related in any way and he does not know if any formal adoption had taken place nor had furnished any documentary evidence to support that an adoption did in fact take place. Ms. Coghill exhibited that correspondence.
She made inquiries to Mr. Colin Hempenstall regarding Mr. Patrick Robinson’s relationship to the deceased. Mr. Hempenstall confirmed that he did not know Mr. Patrick Robinson and the first time his sister Gail Gordon and his sister in law Helen Hempenstall, the lawful widow of Thomas Hempenstall, and he became aware of Mr. Patrick Robinson was when they received a copy of the last will and testament of the deceased. Mr. Colin Hempenstall confirmed that in the many years of being with and talking to Mrs. O’Flynn, she never mentioned any adopted nephew. He further confirmed that neither did any other member of her generation and he confirmed that the deceased had four brothers and sisters. Ms. Coghill referred to an email of the 1st September, 2010, in that regard.
She said he believed that had Edna O’Flynn formally adopted Mr. Patrick Robinson, he would in fact be a child of the deceased and not an “adopted nephew”. Ms. Coghill accepted that had one of Edna O’Flynn’s siblings formally adopted Mr. Patrick Robinson, then he would be regarded as a nephew of the deceased and he would be entitled to share in any portion of the estate of the deceased that fell to be distributed in accordance with the rules of the administration of the estate intestate. Colin Hempenstall had confirmed that the deceased’s brothers and sisters did not adopt Patrick Robinson and in the circumstances, she said and believed that Patrick Robinson, notwithstanding the reference in the deceased’s last will and testament to him as being an adopted nephew, is in fact a stranger in blood.
Ms. Coghill was advised by counsel and believed that in the course of the provisions of the Succession Act 1965, and in the event of partial intestacy arising under the terms of the last will of the deceased, and in circumstances where the deceased died a widow without issue and without issue a predeceased son or daughter her surviving and without parent and without brother or her surviving that any portion of the estate that fell to be distributed in accordance with the rules of the administration of the estate’s intestate would be distributed per capita and not per stirpes.
She was further advised by counsel and believed that in accordance with s. 3 and s. 67 of the Succession Act 1965 and in the event of a partial intestacy arising, the children of Thomas Hempenstall (who was the lawful nephew and who predeceased the deceased) are not entitled to participate in the administration intestate of the estate of the deceased.
She said she was advised and believed that in the event of a partial intestacy arising and in circumstances where Patrick Robinson had not demonstrated that he was a nephew of the deceased and in circumstances where the deceased died without any other nieces or nephews being the issue of any other predeceased brothers or sisters the only individuals entitled to share in the administration intestate of the estate of the deceased are Colin Hempenstall and the estate of Gail Gordon. She was further advised by counsel and believed that in circumstances where Gail Gordon was alive at the date of the death of the deceased having subsequently died and in the event of a partial intestacy arising under the last will of the decease, the 50% of that portion of the estate falls to be distributed in accordance with the rules of the administration of the estate’s intestate must be distributed by the executors of Gail Gordon deceased who thereafter must administer same in accordance with the last will and testament of Gail Gordon deceased. She is further advised by counsel and believes that the remaining 50% fell to be distributed to Colin Hempenstall.
6. Supplemental Affidavit
By subsequent affidavit of Anne Coghill, she said that while preparing briefs for the hearing of the action, she carried out a further search of the files and located attendance note prepared by the plaintiff dated the 11th June, 1986, along with attendance dockets stating that a letter dated the 12th June, 1986, found the addresses of the beneficiaries outlined in para. 3 of Mrs. O’Flynn’s will.
7. High Court Order
By order of the High Court, Laffoy J. made the 23rd May, 2011 it was ordered by consent that Colin Hempenstall be joined as co-defendant in the proceedings representing the interest of the persons entitled to share in the administration and testate of the estate of the deceased.
8. Affidavit of Colin Hempenstall
Colin Hempenstall by affidavit filed on the 14th June, 2011, confirmed that he was nominated next of kin; that he was the surviving son of Thomas Hempenstall and lawful brother of the testatrix who had predeceased her and had one sister, Gail Gordon and a brother Thomas Hempenstall who predeceased the testatrix in 1998 and who had seven children who were alive at the date of the death of the testatrix.
He deposed that Gail Gordon died on the 30th November, 2009, and had two daughters, Rebecca Hickey and Hilary Haldiman who were named as executors in Gail Gordon’s last will and testament.
He referred to correspondence and said that he was satisfied that the High Court should adjudicate in the matter before it and that he had no objection to the final bequest being made to The Haven, Blackrock.
He said that the first time he became aware that Patrick Robinson’s relationship to the testatrix was when he received a copy of the last will and testament of the testatrix. Neither the testatrix nor any other person of her generation had mentioned him to the deponent and he confirmed that none of her siblings adopted him at any point.
He said from the advice he had received and having regard to the sprit and intendment of the gift at issue and the general charitable intent of the testatrix, he objected neither to the application for direction that Masonic Havens Limited and haven Blackrock were the same entity, nor to the application of the gift to the Masonic Havens Limited, registered charity No. CHY 6135, whether it be on the true construction of the words used or through an application of Cy-Pres jurisdiction.
While Mr. Hempenstall said that with regard to the above he joined issue with the paras. 18 to 22 of the affidavit of Martin E. Marren sworn on the 24th May, 2010, under the heading “Charitable Bequest” and it is clear that he did not object to the application. He confirmed this is his supplemental affidavit.
9. Supplemental affidavit of Colin Hempenstall
The supplemental affidavit of Colin Hempenstall sworn on the 24th June, 2011. Mr. Hempenstall confirmed that he was the nominated next of kin in the testatrix in the proceedings. He made the affidavit supplemental to that on the 7th June, 2010, and to correct any irregularity which occurred therein and in consideration of new information which came to light in relation to the matter.
He said that Winifred (otherwise Charlotte) Hempenstall, sister of the testatrix, survived her by some two years and bequeathed her residuary estate in trust to Dorothy Walford of Woodley, Reading in Berkshire. Dorothy Walford is since deceased and the beneficiaries of her estate are her two children referred to in the copies of grant of probate and will of Winfred (otherwise Charlotte) Hempenstall. He said that the attitude of the above mentioned next of kin to the application of the plaintiff in the proceedings is that they are satisfied that the High Court should adjudicate on the matters before it and he referred to a copy of a letter from Blandy and Blandy Solicitors of Reading who are solicitors of the next of kin.
He said that the affidavit sworn by him on the 7th June, 2011, averred at paras. (4), (6) and (7) that he objected neither to the final bequest of the charitable gift in the matter being made to The Haven, Blackrock nor to the application of the gift to Masonic Havens Limited whether on the true construction of the words used or through the application of CY-PRES jurisdiction, and that he joined issue with paras. 18 to 22 of the affidavit of Martin E. Marren sworn on the 24th May, 2010. He said he wished to clarify that the actual position was that he was satisfied that the High Court should adjudicate on the matter before it.
10. Affidavit of Leo Kearns of An Post
Mr. Kearns is the delivery service manager of An Post Blackrock delivery office in Blackrock in Co. Dublin and confirmed to the best of his knowledge, information and belief that “The Haven, Blackrock” is located at Carrickmanor Nursing Home, Carrickbrennan Road, Monkstown, Co. Dublin, which is located in the postal district of Blackrock. He confirmed that to the best of his knowledge, information and belief, there was no addressee other than “The Haven” located at Carrickbrennan, Monkstown in the said area or the adjoining district answering to the title of “The Havens” or “The Haven”.
11. Legal Principles
Section 90 of the Succession Act, 1956 provides that:
“Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will. The section enables the court to allow evidence, in addition to that of the testamentary disposition itself
(a) To show the intention of the testator, and
(b) To assist in the construction of the Will generally or, in particular to explain any contradiction in the will.
There is no contradiction in the will but, as the executor puts it, whether the bequest to “the Committee for the time being of The Haven, Blackrock, for the charitable purposes of that Body” demonstrates non equivocal intention on the part of the testatrix to benefit Masonic Havens Limited.
The position before 1965 is well illustrated in the following 1950 case.
In Re. Julian deceased, 0’Brien and Others v. Missions to Seaman’s Trust Corporation Limited and Others [1950] I.R. 57, bequest was to “the Seaman’s Institute, Sir John Rogerson’s Quay, Dublin”, the bequest was subsequently claimed by two bodies. Firstly the Catholic Seaman’s Institute, Sir John Rogerson’s Quay, Dublin, secondly the Dublin Seaman’s Institute, Eden Quay, Dublin. The deceased had association with one of the Institutes named, the Dublin Seaman’s Institute of Eden Quay. There was evidence on the part of a solicitor who drafted the Will of his mistake with regard to the address of the Institute as appearing in the Will.
Kingsmill Moore J. held at 65:-
“If I had approached the problem with no knowledge of the facts contained in the evidence which I have excluded, I feel convinced that I would have been driven to the conclusion that for some reason or other, the testatrix had directed Sir John Rogerson’s Quay to be inserted with the full intention of benefit to the Catholic Seaman’s Institute. Accordingly, I so hold. I regret having to give this decision, for the evidence I have excluded, if l were allowed to take it into account, would convince me to a moral certainty that the testatrix intended to benefit to the Dublin Seaman’s Institute. It explains how the mistake was made and fits in with all the other evidence in the case pointing to the Dublin Seaman’s Institute. The testatrix, as I have said, was particular as to the exact addresses. When giving instructions for a Will, she had before her the list of the 3rd August, with the name, “Seaman’s Institute”. She told her solicitor that she was uncertain of the address. She, in her presence, consulted an imperfect work of reference which contained only the address of the Catholic Seaman’s Institute, informed her of the address he had discovered, but not the name of the Institute to which it was attached, and inserted this address.
………..
Although the testatrix subsequently received the Will for perusal, and had it in her possession for some time, she did not make any alteration in the address.
………..
This is by no means the first- and, equally certainly, will not be the last – case in which a judge has been forced by the rules of law to give a decision on the construction of a Will which he believed to be contrary to the intentions of the testator. The law reports are allowed with their comments of judges who have found themselves in a similar plight; but I consider the law to be well established and conclusive that I must reject (the testatrix solicitor) evidence and, in the absence of such evidence, I must hold that the Catholic Seaman’s Institute is entitled to the bequest.”
This was the position prior to the enactment of s. 90 of the Succession Act 1965.
The overriding task of the court when asked to construe a Will is to ascertain the intentions of the testator In Re. Curtin deceased, Curtin v. 0’Mahony [1991] 2 I.R. at 573, Supreme Court.
In Howell v. Howell (Unreported, High Court, 7th February, 1992) and Gaynor v. Bank of Ireland the court approved the dictum of Lowery L.C.J. in Herron v. Ulster Bank Limited [1974] N.I.L.R. 44, which Lord Chief Justice in Northern Ireland laid down suggested guidelines for a court in its construction of Wills. These are as follows:-
“I consider that, having first read the whole of the Will, one may with advantage adopt the following procedure:
1. Read the immediately relevant portion of the Will as a piece of English and decide, if possible, what it means.
2. Look to that the other material parts of the Will and see whether they tend to confirm the apparent plain meaning of the immediately relevant portion. Or whether they suggest the need for modification in order to make harmonious sense of the whole, or alternatively, whether an ambiguity in the immediate relevant position can be resolved.
3. If the ambiguity persists, having regard to the scheme of the Will, consider what the testator was trying to do.
4. One may at this stage resort to the rules of construction, where applicable and aids, such as the presumption of early vesting and the presumption against intestacy and in favour of equality.
5. Then see whether any rule of law prevents a particular interpretation being adopted.
6. Finally, and I suggest not until the disputed passages have been exhaustively studied, one may get help from the opinion of other courts and judges in similar words, rarely as binding precedent since it has been well said that no Will has a twin brother (per. Warner J. in The Matter of Kane 2000 NY. 189, 192 [2010]) but more often as examples (sometimes of the highest authority) of how judicial minds nurtured in the same discipline have interpreted words in similar contexts.”
Where the ordinary meaning is clear, then there would appear to be no necessity to invoke the technical rules of construction.
Where there it a lack of precise identity or address of the charitable object, extrinsic evidence pursuant to s. 90 of the Succession Act 1965, is admissible to show the intention of testator to assist in the construction of or to explain any contradiction in a Will.
There is no competing charitable object as there was in the Seaman’s Institute case and since 1965 the Society of Prevention of Cruelty to Animals case.
The deficiency in identity can be resolved by the admission of extrinsic evidence.
In this regard it is helpful to consider cases since 1965.
In Bennett v. Bennett [1978] I.R. 56, the deceased had given his farm to his wife for life with the remainder to his nephew “Denis Bennett” but had no nephew of that name, but did have a brother named Denis and a nephew named William Bennett. The latter claimed to be the person to whom the deceased had intended to refer. Parke J. considered that s. 90 permitted extrinsic evidence to be admitted, showing that the nephew William Bennett had resided in and had worked at one of the testator’s farms without remuneration for several years and he was of the opinion that s. 90 was not merely declaratory:-
“It seems to me that s. 90 is fundamentally novel. I believe it does amend the common law and directs the courts in a proper case to look outside the Will altogether in order to ascertain the testator’s intention, if (but only if) the Will cannot be construed literally, having regard to the facts existing at the testator’s death.”
Rowe v. Law [1978] I.R. 55 and O’Connor and Another v. Governor and Company of the Bank of Ireland [1998] 2 I.R. 597, followed Bennett v. Bennett.
In The Matter of the Estate of Evelyn Tomlinson (deceased) and in The Matter of the Succession Act 1965: Lyndsey and Wynne v. Tomlinson and the Dublin Society for the Prevention of Cruelty to Animals (Incorporated) and the Irish Society for the Prevention of Cruelty to Animals, (Carroll J. 13th February, 1996) the court had to consider the residuary bequests to “a number of charitable organisations including
“The National Society for the Prevention of Cruelty to Animals (Dogs and Cats Home), 1 Grand Canal Quay, in the city of Dublin”.
There was no such entity, but there were two bodies Dublin Society for the Prevention of Cruelty to Animals and the Irish Society for the Prevention of Cruelty to Animals. The former owned the premises at 1 Grand Canal Quay, and the Irish Society was also located at the same address. Both Societies moved to separate premises in 1993 after the Will was made.
The court held that an ambiguity existed and that therefore extrinsic evidence was admissible under section 90. Carroll J. approved of Rowe v. Law [1978] I.R. 55, and held that there was a legitimate dispute as to the meaning or effect of the language used in the Will and that extrinsic evidence should be admissible. Carroll J. concluded as follows:-
“Given that she was a dog lover of many years standing and an active volunteer in a clinic devoted to the care of animals and that she subscribed to the Dublin Society, and given that the Irish SPCA is an administrative body not involved in active field work, I consider on the balance of probabilities that the testatrix intended the Dublin Society for the Prevention of Cruelty to Animals, which operated the Dogs and Cats Home at Grand Canal Quay, to the beneficiary.”
12. Decision of the Court
Having considered the case law and the evidence on affidavit, the court is of the view that extrinsic evidence is admissible in this case and that it is not necessary to consider a partial intestacy arising. It is clear that there was a general charitable intention on the part of the deceased and that the evidence of the Executor and Ms. Coghill as to the instructions in relation to and the drafting of the Will, the common reference among members of the Masonic Order to The Haven at Monkstown (affidavits of Mr. Young and Mr. Ward) and to the averments of the post office delivery service manager of Blackrock as to The Haven, Blackrock being located at Carrick Manor, Carrickbrennan Road, Monkstown, County Dublin. The court also has considered the averments of Mr. Hempenstall and the submissions made on his behalf in the event of the failure of the bequest.
The court, accordingly determines the issues as follows:
(a) The said bequest demonstrates general charitable intent,
(b) The true constructions the words “to the Committee for the time being of The Haven, Blackrock, for the charitable purposes of that Body” does not on its own demonstrate non equivocal intention on the part of the testatrix to benefit Masonic Havens Limited and, in particular, their sheltered housing for the elderly project known as “The Haven” otherwise Carrickbrennan Road, Monkstown in the County of Dublin, notwithstanding that the evidence that The Haven, Blackrock, situate at Carrickbrennan Road, Monkstown Road, operated through the Committee.
(c) However, the Court is satisfied that it is proper to permit the admission of extrinsic evidence under s. 90 of the Succession Act 1965, in the form of the affidavits opened to and referred to above as to the true intention of the testatrix. This extrinsic evidence in the affidavits summarised in the judgment and referred to briefly above clearly show the intention of the testatrix to benefit the Masonic Haven, Monkstown which is the postal district of Blackrock and is commonly referred to by members of the Masonic Order as “The Haven” managed by its Committee. The court is satisfied that the defendant, as the corporate charitable body, is entitled to the benefit of the bequest.
(d) As the answer to (a), and (c) is yes, the issue of the gift lapsing for the application of the doctrine of Cy-Pres does not apply.
(e) There is accordingly, no requirement for any order or direction with regard to the application of the said share of the residuary pursuant to s. 47 of the Charities Act 1961, as amended nor is there any requirement to direct the Commissioners for Charitable Donations and Bequests to exercise its statutory powers.
Black v Ann O’Sullivan Centre
[2016] IEHC 695
JUDGMENT of Mr. Justice White delivered on the 2nd of December, 2016.
1. This matter comes before the court by way of Special Summons seeking to have admitted extrinsic evidence pursuant to the provisions of s. 90 of the Succession Act 1965, to ascertain the true intention of the deceased in relation to Clause 4 of the last will and testament of Eileen Curtin.
2. At para. 4 of her last will and testament of 1st August, 2013, she made the following bequest:-
“I give, devise and bequeath unto Rosemary Black (daughter of my niece, Maureen Black) of 51 Beechpark Avenue, Castleknock, Dublin15, my apartment together with its contents at Apartment 41, Block C, Seabury, Sydney Parade Avenue, Sandymount, Dublin 4.
3. She died on the 8th February, 2015 and Probate was granted to the Plaintiff on 18th November, 2015. The plaintiff has three daughters, Barbara, Nicola and Jennifer and never had a daughter named Rosemary.
4. The evidence sought to be relied on is that set out in the affidavit of the Plaintiff together with exhibits and that of her husband Victor Black, and to a lesser extent the affidavits of Brian Whitaker.
5. The Plaintiff deposed as follows:-
“7. I say that I knew the deceased very well during her lifetime. She was not married and had no children and she visited my family in our house at Castleknock on very many occasions. For many years prior to her death, I was the first point of contact for her in the event that she had an issue of any concern. I say that she was particularly fond of my daughter, Barbara, as she was the only one of my daughters who was still living in our family home up to 2014 and was usually there when the deceased came to visit. Both the deceased and Barbara were able to converse with one another in French and they had a close rapport.
8. I say that the deceased told me on a number of occasions that she intended to leave her apartment to Barbara. However, she did not at any stage tell me that she had, in fact, done so.
9. I say that it is my belief that the deceased intended the property specified at Clause 4 of her last will and testament to be devised to my daughter Barbara Black who was the only one of my daughters residing at 51 Beechpark Avenue, Castleknock, Dublin 15 at the time the Will was made.
10. I say that while the deceased was normally a very careful and fastidious person and such mistake on her part would have been uncharacteristic, I believe that she inadvertently referred to my daughter Barbara as Rosemary when giving instructions to her solicitor for the preparation and execution of her will.”
6. Exhibited to the Plaintiff’s affidavit are two letters from Jennifer Black and Nicola Black. In her letter of 20th February, 2016, Jennifer Black stated:-
“I fully understand and appreciate the difficulty that has arisen in connection with Eileen’s will and note that an application will be required to the High Court to confirm that the reference made to Rosemary in Clause 4 of the will should in fact refer to my sister Barbara Black.
I confirm that I am in full agreement with this interpretation of the will and will support the application that is to be made.” Nicola Black wrote a letter in similar terms.
7. Victor Black’s affidavit was sworn on 22nd April, 2016, at para. 3 he stated:-
“I say that I knew the deceased herein well and she was a frequent visitor to our home at 51 Beechpark Avenue, Castleknock, Dublin 15. She enjoyed a close rapport with our daughter, Barbara Black who was the only one of our children still living at home up until 2014. I specifically recall a telephone call from the deceased in or around April or May 2013, in which she told me that she intended to leave her apartment to Barbara after her death. She explained that our other daughters, Nicola and Jennifer were married and in her view they were “well looked after” whereas Barbara was still single and living at home and that was the reason she wanted to leave the apartment to her.”
8. Mr. Whitaker in his first affidavit of 22nd April, 2016, stated at para. 3:-
“3. On or about 1st August, 2013, the deceased asked to see me and she wanted to make some further changes to her will. As it happened, I had a number of appointments out of the office that day and I offered to call to her apartment that afternoon and I met with her around 2:30pm. She handed me a copy of p. 1 of her then existing will that she had executed with me on 8th July, 2011, and upon which she had made a number of hand written amendments in pencil.
4. I said to the deceased that the change she was making was quite significant and I asked her why she was doing it. She told me that David Curtin was now “well off” and that in any event he would be getting other significant benefits under her will and also as a one third beneficiary of her Irish Life policy. She told me that she had decided to give her apartment to a daughter of one of her nieces, Maureen Black as she had visited the deceased regularly.”
9. David Curtin was the beneficiary of the specific devise and bequest of the apartment in the will made by the deceased on 8th July, 2011.
10. The third Defendant wished to be represented in circumstances where it was concerned that there was an inherent conflict between the Plaintiff and the residuary legatees. The other residuary legatees wrote to the solicitor for the estate stating they would abide by the direction of the Court.
11. Mr Liam O’hAlmhain Chairman of the third Defendant, in his affidavit sworn on 13th July, 2016, had a number of concerns which are set out in the following paragraphs of his affidavit:-
“15. Accordingly I say and am advised that a relevant factor in construing the meaning of clause 4 is the fact that there is a clear reference to Barbara Black in Clause 5.3 of the deceased’s will which states as follows:-
5. I give devise and bequeath the following pecuniary legacies.
(iii) to my niece Maureen Black (nee Curtin) of 51 Beechpark Avenue, Castleknock, Dublin 15, aforesaid the sum of €20,000 (twenty thousand euro) and to her daughter Barbara the sum of €10,000 (ten thousand euro).
16. I say that the wording of the will raises a significant question regarding the construction of Clause 4 sought by the Plaintiff. I say that even with extrinsic evidence offered by the Plaintiff, there is no evidence on affidavit that addresses why Barbara Black is correctly referred to as Barbara in one gift and incorrectly referred to as Rosemary in another gift within the same will.
17. I further say and am advised that the sequence of events described in the affidavit of Brian Whitaker raises a question as to the provenance of the instruction regarding the inclusion of the address referred to in Clause 4. Mr. Whitaker exhibits a copy of the Deceased’s previous will showing a number of handwritten amendments thereto at exhibit A of his first affidavit. I say that from perusing those amendments it is apparent that the address of Rosemary Black which appears at Clause 4 in the final sworn version of the will (being of 51 Beechpark Avenue, Castleknock, Dublin 15) was not amongst the annotations marked on the Deceased’s previous will.
18. Accordingly, I say and am advised that at present there is a lacuna in the affidavit evidence as to the circumstances wherein the addition was made, but it appears to have been made by Mr. Whitaker prior to the swearing of the will. I say that this appears to be a relevant factual matter which it is appropriate for this Honourable Court to have regard to in determining whether the extrinsic evidence offered by the Plaintiff is, in fact, capable of conclusively determining that the Deceased intended to benefit Barbara Black when devising the property at Clause 4 to Rosemary Black.
19. Finally, I say that there does not appear to be any corroborative independent evidence of what the testator meant when she identified Rosemary Black as a legatee. In this regard, it is notable that there is no contemporaneous note or attendance exhibited by Mr. Whitaker which records the instructions or representations that Mr. Whitaker refers to having been made by the deceased prior to the drafting and execution of her will on 1st August, 2013.”
12. Subsequently, Mr. Whitaker swore another affidavit on 25th July, 2016, exhibiting the written attendance on the Deceased.
13. There is a residuary clause in the will set out at para. 6 of the will which states:-
“I give devise and bequeath all the rest residue and remainder of my estate in equal parts unto:-
(i) The Anne Sullivan Foundation for Deaf, Blind – 40 Lower Drumcondra Road, Dublin 9. (Charity Reg No. CH9600) (Tel No. 01-8300562), otherwise known as The Anne Sullivan Centre for the Care of Low Functioning Deaf/Blind Persons, located in the grounds of St. Joseph’s House, Brewery Road, Stillorgan, County Dublin (Tel No. 01-2898339) and I declare that the receipt of the Committee for the time being shall be a good discharge.
(ii) Our Lady’s Hospice (Sisters of Charity) located at Harold’s Cross, Dublin 6 West (Tel No. 01-4068700) and I declare that the receipt of the Sister Superior for the time being shall be a good discharge.
(iii) Family Solidarity (promoting Christian values in all aspects of family life) P.O. Box 7456 Dublin 3. Postal address – 7 Ely Place, Dublin 2 (Tel No. 01-6611113) and I declare that the receipt of the Assistant Secretary for the time being of Family Solidarity shall be a good discharge.”
Relevant Sections of the Succession Act 1965
“89. Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.
90. Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.
91. Unless a contrary intention appears from the will, any estate comprised or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in any residuary devise or bequest, as the case may be, contained in the will.
99. If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.”
14. A number of relevant cases where the section has been considered have been opened to the court which the court considers of relevance.
15. In Bennett v. Bennett & Ors, a judgment of Parke J. delivered on 24th January, 1977, he stated:-
“It seems to me that s. 90 is fundamentally novel in that it places no such limitation on the purpose for which extrinsic evidence may be admitted. I believe that it does amend the common law and directs the courts in a proper instance to look outside the will altogether in order to ascertain the testator’s intentions, if (but only if) the will cannot be construed literally having regard to the facts existing at the testator’s death. It is quite clear that the scheme of the Succession Act was in part to declare and in part to reform the law relating to wills and to the inheritance of property. The way in which s. 90 is worded leads me to the conclusion that it belongs to the second type of section. In support of this construction I have also been referred to s. 99 which provides:-
‘If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.’
I doubt, however, if this section is of assistance in the present case. The devise in this case is to “my nephew Denis Bennett.” On its face this admits of only one construction unless I first apply s. 90 so as to alter it “to my nephew, William Bennett.” In that case, it again is capable of only one construction.
However, the general principles that a will be construed so as to avoid an intestacy is long settled law and unaltered by the Act. I think nobody can have any doubt that the testator in the present case did not wish to die partially intestate or to appoint a non-existent person as one of his executors. Prior to the enactment of s. 90 there was no way by which a court could have avoided such a result. It would have been impossible to have looked outside the will.
I think s. 90 was designed to save the courts from having to come to what was frequently a most frustrating conclusion in cases where it was perfectly obvious to everybody that if the testator could have been recalled to life and asked what he meant to benefit, it is clear that he would have answered the question in only one way.”
16. In Rowe v. Law [1978] I.R. 55, Henchy J. stated at p. 72 of the judgment:-
“I read s. 90 as allowing extrinsic evidence to be received if it meets the double requirement of (a) showing the intention of a testator and (b) assisting in the construction of, or explaining any contradiction in, a will. The alternative reading would treat the section as making extrinsic evidence admissible if it meets the requirement of either (a) or (b). That, however, would produce unreasonable and illogical consequences which the legislature could not have intended. If the section made extrinsic evidence admissible merely because it satisfies requirement (a), then in any case the court could go outside the will and receive and act on extrinsic evidence as to the intention of the testator. The grant of probate would no longer provide an exclusive and conclusive version of the testamentary intention as embodied in a will. However, it would be unreasonable and contradictory for the legislature, on the one hand to lay down in s. 78 the formal requirements for the disposition of one’s property by will, and on the other to allow by s. 90 (without qualification or limitation as to purpose or circumstances or time) extrinsic evidence of the intention of the testator to be admitted. Such a sweeping and disruptive change, fraught with possibilities for fraud, mistake, unfairness and uncertainty, should not be read into the section if another and reasonable interpretation is open.”
17. In a judgment of the Supreme Court in In Re Collins; O’Connell v. Governor and Company of Bank of Ireland [1998] 2 IR 596, Keane J. approving Rowe v Law stated:- at p 611 The alternative construction, which was upheld in the High Court and by the majority of this Court in Rowe v. Law [1978] I.R. 55, is that extrinsic evidence was henceforth to be admissible as to the intention of the testator, not merely in the severely confined category of cases already referred to, but in every case where it assisted in the construction of, or resolved contradictions, in the will. That reading of the section is not only logical, but in grammatical terms is consistent with the use of the conjunctive “and” rather than the disjunctive “or”. There are thus two conditions which must be met before such evidence is admissible: it must assist in the construction of the will or resolve a contradiction and it must, in either event, show what the intention, in the particular context, of the testator was.”
18. The court has also considered a substantial submission submitted on behalf of the third Defendant in which it was submitted that the extrinsic evidence offered by the Plaintiff does not indicate the intention of the testator and therefore is not admissible and that it does not meet the two part test set out by the Supreme Court in Rowe v. Law and confirmed in In Re Collins, O’Connell v. Governor and Company of the Bank of Ireland. It is submitted that there is no evidence offered which explains why Barbara Black would be referred to as Rosemary Black and that the facts are distinguishable in this case from the Bennett case. The submissions also rely on the judgment of Laffoy J. in Thornton v. Timlin [2012] IEHC 239, to argue that the opinions and views of relatives or other connected persons as to which number of potential beneficiaries can be singled out as having been close to the deceased is not evidence which demonstrates a testator’s intention to benefit such persons. The third Defendant also submits that mere frustration by an omission will not be sufficient to require the admission of extrinsic evidence and also that there was insufficient evidence of intention to prefer Barbara Black over her other two sisters.
19. The third Defendant also contends in the submissions that the evidence if it is admissible is not sufficient to support the construction sought by the Plaintiff.
Conclusion
20. On reading the will it is obvious that the testator intended to leave her apartment by a specific devise and did not intend it to be part of the residual estate. She intended to bequeath it to one person, the daughter of her niece Maureen Black.
21. While the extrinsic evidence is primarily from the family members of the intended beneficiary, the combined evidence helps to explain the contradiction of the will and the identity of the daughter whom the testator wished to benefit.
22. The extrinsic evidence is admissible in accordance with s. 90 of the Succession Act 1965, to show the intention of the testator and to assist in the construction of her will to explain the contradiction in same. The extrinsic evidence does meet the two part test set out by the Supreme Court in Rowe v. Law approved in, In Re Collins O’Connell v. Governor and Company of the Bank of Ireland.
23. Section 99 is also relevant as the court should if the bequest admits of more than one interpretation prefer the interpretation that facilitates the operation of the bequest.
24. The court is not rewriting the will or changing an ambiguous clause. It is reading the will with the assistance of the extrinsic evidence and giving effect to the intention of the will when it is clear that there was an error in that the testator’s niece, Maureen Black, never had a daughter called Rosemary.
25. I am satisfied that the extrinsic evidence does meet the requirement of showing the intention of the testator and assisting in the interpretation of the contradiction in the will.
26. In those circumstances, it is appropriate to make an order that in accordance with s. 90 and 99 of the Succession Act 1965, the court directs that Clause 4 of the last will and testament of Eileen Curtin of 1st August, 2013, has the effect of devising and bequeathing all the property with its contents of apartment 41, Block C, Seabury, Sydney Parade Avenue, Sandymount, Dublin 4 to Barbara Black.
In the Estate of Courtney
[2016] IEHC 318
JUDGMENT of Ms. Justice Baker delivered on the 13th day of June, 2016.
1. This judgment is given in an application by Michael C. Larkin, one of the two executors named in a will made in Ireland by the deceased on the 20th August, 2007, for a declaration as to the effect of the revocation clause contained in a later will made by the deceased in London on the 22nd September, 2013.
Background
2. William Joseph Courtney died on the 30th October, 2013, aged 84 years, a married man without issue, or issue of a predeceased son or daughter surviving him, leaving him surviving his lawful widow, Patricia Alvina Courtney, a notice party to this application. The deceased was of Irish domicile of origin but was domiciled in the domiciliary unit of England and Wales at the date of his death. He had substantial property in Ireland, including a dwelling house in Killarney, a dwelling house in Dublin and sizeable farm lands at Derrynaflan, Co. Tipperary, lands where the Derrynaflan Hoard was found. The deceased had substantial property in Ireland and continued to maintain a close connection with his Irish relatives and was a frequent visitor, in particular, to Co. Kerry where he for over 40 years had employed the service of Michael C. Larkin, solicitor, with a business address in Killarney, Co. Kerry. Mr. Larkin is one of the executors named in his will in respect of which this application is made, the other executor, also a solicitor, having renounced his executorship.
3. The deceased executed a testamentary document on the 20th August, 2007, by which he devised and bequeathed his Irish property as to five eight shares thereof for his wife and the remaining three eights to his sister, Mary, for their respective lives, with remainder over on trust for identified nephew and nieces, and grandnephews and grandnieces. By that will, the deceased declared that he had been ordinarily resident in England since the year 1953, and that he was domiciled there, and that the will was intended to “extend only to my property which is situate in Ireland”.
4. The deceased executed four codicils to the will, on the 15th September, 2008, 22nd October, 2008, 1st November, 2010 and 18th July, 2011, and all executed in the office of his solicitor, Mr. Larkin.
5. No issue arises as to the validity of the Irish will or codicils thereto, each of which was executed in accordance with the statutory requirements for testamentary documents in Ireland. An affidavit of laws of Michael John Maunsell confirms that the will and the four codicils were executed in accordance with the relevant legislation and rules in the domiciliary unit of England and Wales.
6. Over the years the deceased engaged in correspondence with his solicitor and the relevant correspondence exhibited shows a considerable degree of care and consideration in the preparation of the will of 2007 and codicils thereto. Mr. Larkin may have been prescient, when he said to the deceased that it would have been preferable for him to have drawn a fresh will in Ireland and that the costs of any dispute regarding the interpretation or effect of the codicils after his death ought to be borne in mind by him.
7. In the events, the question that has come to be considered by the Irish High Court relates to a homemade will executed by the deceased on the 22nd September, 2013, shortly before his death in London, which contained a clause by which he revoked all previous wills and codicils. By that will, the deceased devised onto his wife all of his interest in his house at West Hampstead, London and the proceeds of his current bank accounts subject to a provision for the payment of a sum to a named beneficiary. The net question to be determined by me in this application is whether the revocation clause in that will had the effect of revoking the Irish will made on the 20th August, 2007 and the four codicils thereto.
8. Certain factors must be noted from the will made on the 22nd September, 2013. It contains no residuary clause, and deals with named assets in the domiciliary unit of England and Wales. If it is held to have revoked the Irish will made on the 20th August, 2007, and the four codicils thereto, the deceased will have died intestate as to the entire of his Irish estate and any residuary estate in the domiciliary unit of England and Wales.
9. The person entitled to succeed on intestacy in the estate of the deceased is his widow, Patricia Alvina Courtney, who swore an affidavit on the 2nd May, 2016, in which she said that in her opinion, in executing the will of the 22nd September, 2013, that “the deceased did not intend to revoke his Irish will”. It is useful to quote in full the two relevant paragraphs of her affidavit:-
“3. In my opinion, in executing his will of 22nd September, 2013, the deceased did not intend to revoke his Irish will. Throughout his life, the deceased considered his Irish and UK assets to be separate and that is why he had separate wills. The deceased was of the view that his Irish assets should effectively ‘remain in Ireland’ with his relatives there.
4. Therefore, I am firmly of the view that in executing his will dated 22nd September, 2013, the deceased only intended to revoke his previous UK will and not his previous Irish will and codicils.”
10. Mrs. Courtney was legally represented in the application before me. I was advised that the English will has been admitted to probate and that a grant issued from the High Court, District Probate Registry at Winchester on the 2nd October, 2014, to his widow, the said Patricia Alvina Courtney and the other executrix named therein, Josephine E. Evans.
11. The net value of the estate of the deceased within the jurisdiction of Ireland as returned in the Inland Revenue affidavit of 8th December, 2014, was €1,858,663. The foreign estate is stated to have a net value of €1,663,810.
The Statutory Provisions
12. Section 85(2) of the Succession Act 1965 provides two ways in which a will may be revoked, namely by will or codicil, or by some other writing declaring an intention to revoke it:-
“Subject to subsection (1), no will, or any part thereof, shall be revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.”
13. The revocation may be of part of a will or of one of several wills made by a testator although most wills do contain a general revocation clause, revoking all previous testamentary dispositions.
14. The exercise of revoking a will must be accompanied by an intention to revoke the will. It has been suggested that an express revocation clause is desirable because it at least raises a presumption that a testator has the necessary animus revocandi in relation to earlier testamentary documents. This is apparent in the judgment in in Re Keenan [1946] 80 I.L.T.R. 1 where MacDermott J. said as follows:-
“For my own part, I incline to the view that where, as here, a will contains a clear revocatory clause couched in comprehensive terms and having the knowledge and approval of the testator, there is no room for such an inquiry and no ground for discriminating between different kinds of earlier testamentary dispositions which are fairly sought by the language of the clause.”
15. Implicit in this dicta is that a clear revocation clause, while it might raise a presumption that a testator intended to revoke all previous testamentary documents, could not of itself, absent the knowledge and approval of the testator, do so if the necessary animus revocandi was not present. Also implicit is that the onus of establishing that the testator did not have an intention to revoke is on the person who so asserts.
16. The authoritative Williams on Wills (9th Ed.) Vol. 1, p. 182 states the following:-
“The intention of the testator is the sole guide as to whether words amount to a revocation of a will and revocation is not proved by mere accidental words or by inference or by the form of the testamentary document or by implication where the circumstances do not accord with such an intention.”
17. Support for this is found in the judgment of Re Phelan [1972] Fam 33. Sterling J. was hearing an application in respect of a testator who had executed four wills, each of which was made in respect of a separate investment. Each of the three later wills contained a revocation clause and Sterling J. granted an application permitting the surviving executor to apply for a grant of probate in all four wills, holding that the court could omit words that the testator had included in a will by inadvertence, mistake or misunderstanding.
18. In Re Morris [1971] P. 62, in an extensive review of earlier authorities, Latey J. considered the extent to which a testator was bound by errors in drafting made by a solicitor or other person instructed to prepare a will on his behalf. He accepted that a tension was apparent in the case law, but that the old authorities would suggest that the rule enunciated by Lord Penzance in Guardhouse v. Blackburn [1866] L.R. 1 P. & D. 109 at p. 116 is correct:-
“… the fact that the will has been duly read over to a capable testator on the occasion of its execution, or that its contents have been brought to his notice in any other way, should, when coupled with his execution thereof, be held conclusive evidence that he approved as well as knew the contents thereof.”
19. Latey J. considered that that particular statement must represent “the high watermark of the rule” and that the “more modern trend” is that the court would make “the best use of all materials available to ascertain the truth”. He held that there was no rule of law that a testator was bound by a draftsman’s mistake of which the testator was not aware, and that this arose from the first principle that a testator cannot delegate to another the task of deciding how his property should be willed: Hastilow v. Stobie [1865] L.R. 1 P. & D. 64. While the testator has to accept the phraseology of a person who has drafted a will on his behalf or on his instructions, the testator:-
“…has to accept the phraseology selected by the draftsman without himself really understanding its esoteric meaning, and in such a case he adopts it and knowledge and approval is imputed to him. If the draftsman in the use of the selected phraseology which he, knowing the testator’s intentions, has deliberately and not per incuriam chosen, and thus himself known and approved, has made a mistake as to the effect of that phraseology, the testator, having adopted it, is bound by the mistake.”
20. Latey J. considered in some detail where the line is to be drawn between cases where there was knowledge and approval and where it can be said that the testator is bound only by what the draftsman writes on his instructions, or express instructions. He answered the question by returning to first principles, that the testator has sufficient understanding and quoted from Sachs J. in Crerar v. Crerar [unreported, see note in 1956 106 Law Journal 69] that:
“Further, it is not the law of this country that the testator can give testamentary validity to a testamentary disposition by accepting without understanding its effect something put forward by another.”
21. The case was answered, then, by reference to the question of the “knowledge and approval” of the testator, to borrow the language of MacDermott J. in in Re Keenan, and the court considered extrinsic evidence to construe the documents.
“Accordingly, I hold, that the testatrix was not bound by this mistake of the draftsman which was never brought to her notice. The discrepancy between her instructions and what was in the codicil was to all intents and purposes total and was never within her cognisance.”
22. I adopt that approach and consider that the correct approach of the court in the present case is to consider whether the testator knew, approved of and understood the full effect of the revocation clause in the will made in England in 2013.
23. In McCormack & Anor. v. Duff & Anor. [2012] IEHC 285, Herbert J. considered how the court would approach the question of ascertaining the knowledge and intention of the testator in these circumstances. Helpfully too, the judgment deals with the question of the effect of a revocation clause in circumstances which are broadly similar to those in the present case.
24. The testator in that case had made an Irish will in 2005, and an Italian will, which contained a general revocation clause, in 2006. Herbert J., having found that the testator was domiciled in Italy at the date of the execution of his Italian will, went on to consider whether that will had revoked his Irish will made the previous year. As a starting point, he considered that he could not “erase or disregard what is stated by the deceased in his Italian will”, and that there was:-
“a very heavy burden on the plaintiff executors…to show that this revocation clause did not revoke all previous testamentary dispositions. They must satisfy me that there is sufficient evidence that the late Antonio Senzio did not intend to revoke the Irish will made prior to the Italian will.”
25. Herbert J. considered that that, in the absence of a clear or express indication in the Italian will, and there being no internal inconsistencies between the two wills, the question came to be considered in the light of the evidence whether the deceased did intend by the revocation clause to revoke the Irish will, and that this question engaged the provisions of s. 90 of the Succession Act 1965:-
“Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.”
26. Herbert J. considered that he was:-
“…entitled to have regard to direct or consequential evidence of the circumstances surrounding the making of the Italian will by the late Antonio Senzio…. This evidence of surrounding circumstances only confirms me in the view that I would have taken in any event, having regard to the other matters which I have already addressed that the late Antonio Senzio intended the general revocation clause in his Italian will to be limited to revocation of prior wills made by him in Italy.”
27. One factor that weighed heavily on the mind of Herbert J. was the length and complexity of the Irish will, which he believed evidenced a great deal of thought on his part, and which suggested to him that the deceased did not intend to die intestate as to his valuable estate in Ireland and that his previous actions had suggested that this was a consequence he had sought to avoid.
Extrinsic evidence
28. In Rowe v. Law & Ors. [1978] I.R. 55 and the later case of O’Connell & Anor. v. Governor and Company of Bank of Ireland [1998] 2 IR 596, it was established that extrinsic evidence will be admissible only to construe an ambiguity or contradiction in a will, or if its admission is necessary to ascertain the intention of the testator. In the present case, I consider that some uncertainty arises as to whether the deceased intended to die intestate as to his Irish estate, and whether he intended the general revocation clause in his English will to revoke his carefully prepared and executed Irish will and four codicils.
29. I am satisfied on that authority, and from the other authorities referred to above, that I am entitled to have regard to extrinsic evidence to ascertain the intention of the testator when he makes the testamentary document in London in 2013.
The Evidence
30. Much of the relevant evidence is uncontested, and it is noteworthy that no contest exists between the executor and the person who would be entitled should the revocation clause be held to have revoked the Irish will. Affidavit evidence of Michael Courtney, a nephew of the deceased and one of the notice parties, sworn on his own behalf and on behalf of the other beneficiaries entitled under the Irish will and codicils thereto, explains in some detail the circumstances surrounding the making of the will in London. The deceased died on the 30th October, 2013, and one week before his death and whilst he was in hospital executed a homemade will on pre-printed stationary. No amendments were made to any of the pre-drafted contents in that document, and the widow of the deceased is quite clear and frank in her evidence that she does not believe that her late husband intended by that document to revoke his Irish wills and codicils thereto. Michael Courtney explained that he and the other nephews, nieces, grandnephews and grandnieces of the deceased were in regular contact with the deceased who visited Ireland regularly. He says that on a number of occasions, the deceased specifically informed him that it was his intention that his Irish estate would be dealt with by an Irish will and remain with his Irish family. This too is the view of the widow of the deceased.
31. Certain other factors must bear on my considerations. The deceased executed a will in Ireland on the 20th August, 2007, which did contain a revocation clause but one which was carefully drafted to not revoke the prior English will. All of the testamentary documents executed in Ireland relate expressly to the Irish estate and to that alone. The English will of the deceased made on the 22nd September, 2013, makes no reference whatsoever to any element of the Irish estate either by specific bequest or by any disposition of the residue.
32. Mr. Larkin’s evidence is also of considerable benefit. He describes a long professional relationship with the deceased for in excess of 40 years, and that he had been throughout his life been very generous to his nephews, nieces, grandnephews and grandnieces in Ireland. I consider that of some significance too that the deceased who made four codicils to his will never changed the general approach that he had to his Irish estate, namely, that it would remain with his Irish family, and that in each of those codicils executed with legal advice and assistance, he dealt exclusively with his Irish assets. Broadly similar bequests were made in wills made by the deceased before 2007.
33. I consider that the extrinsic evidence points me inexorably to a conclusion that the deceased did not approve of the general nature of the revocation clause contained in the English will made on the 22nd September, 2013, and did not thereby intend to revoke his Irish will and four codicils thereto. I consider that the extrinsic evidence points me to a firm conclusion that the deceased did not intend to die intestate with regard to his Irish estate, and that he had carefully, over many years, acted in a way that shows that he did not intend to dispose of his Irish property other than by express disposition under an Irish testamentary instrument.
34. In those circumstances, I am satisfied that in order to fully understand and construe the testamentary intentions of the testator, that extrinsic evidence is admissible and that this evidence leads me to a conclusion that the deceased did not intend by the revocation clause contained in his will of the 22nd September, 2013, to revoke his Irish testamentary documents.
35. In the circumstances, I am satisfied to make an order that the revocation clause contained in the will of the deceased made in London on the 22nd September, 2013, was limited in its effect and did not revoke the Irish will of the deceased and four codicils thereto which were not as a result thereby revoked.
In the Matter of the Estate of John T. Cronin (Deceased)
and In the Matter of the Succession Act, 1965; Padraig O’Connell v Thomas O’Connell and Breda (Bridie) Murphy
[2018 No. 383 SP.]
High Court [Approved]
26 February 2021
unreported
[2021] IEHC 127
Ms. Justice Nuala Butler
February 26, 2021
JUDGMENT
Introduction
1. The testator, John T. Cronin, made a will with the assistance of a local solicitor on 12th July, 1990. He died more than 23 years later on 11th October, 2013 without having updated that will. This case arises because of material changes to the testator’s assets which occurred between the date of his will and the date of his death and which, in turn, give rise to difficult questions as to whether the intentions expressed in the will can be read as applying to his assets as they stood at the time of his death. In particular, the court is asked to decide if an asset held by the testator at the time he made his will is significantly changed in form by the time of his death, whether a bequest of that asset in its original form is effective to entitle the beneficiary to receive the asset in its altered form.
2. The plaintiff is the executor of the testator’s will and brought these proceedings by special summons dated 12th July, 2018 to obtain the determination of the court as to who is entitled to inherit some 8,937 shares in Kerry Group plc held by the testator at the time of his death. The questions posed for determination by the court are as follows: –
(a) Whether the gift of Kerry Co-Operative shares to Thomas O’Connell includes the shareholding the deceased held in Kerry Group plc at the date of his death;
(b) Whether the deceased’s shareholding in the Kerry Group plc forms part of the residue of the estate.
As will be seen, these are really different ways of putting the same question because, if the Kerry Group plc shares form part of the gift to Thomas O’Connell, then they do not form part of the residue of the estate and vice versa.
3. The first defendant, Thomas O’Connell, is a nephew of the testator and the principal beneficiary under his will. The gifts to Mr. O’Connell include an express gift of “Kerry Co-Operative shares”. Through a process which is described in more detail below, over a period between 1993 and 2013 shares in Kerry Co-Operative were cancelled and exchanged for shares in Kerry Group plc. The testator held 1,411 shares in Kerry Co-Operative in 1993 and presumably a similar number when he made his will in 1990. By the time of his death, he held only 390 shares in Kerry Co-Operative. The remainder of his Kerry Co-Operative shares had been cancelled and exchanged for Kerry Group plc shares of which he held 8,937. Mr. O’Connell contends that the gift to him of Kerry Co-Operative shares includes the Kerry Group shares received by the testator in exchange for a portion of his Kerry Co-Operative shareholding subsequent to making his will. He contends that this is so legally as the Kerry Group plc shares have been substituted for the Kerry Co-Operative shares but also contends that this reflects the intention of the testator as expressed on many occasions to him.
4. The second defendant, Mrs. Bridie Murphy, is a sister of the testator and was appointed by order of the High Court made under O. 15, r. 9 RSC on 21st January, 2019 to represent her own interests and those of the other residuary legatees and devisees and those entitled to a share in the partial intestacy arising in respect of the testator’s estate. Mrs. Murphy is one of eleven persons, all siblings of the testator, who were entitled to share in the residue of his estate under his will. Only four of those named as residuary beneficiaries survived the deceased and as no provision was made in the will for the disposal of the shares of those residuary beneficiaries who pre-deceased the testator, seven-elevenths of the residue of the estate falls to be dealt with by way of partial intestacy. There are an additional 30 persons, nieces and nephews of the testator, entitled to share in this partial intestacy in varying proportions. In addition to her one-eleventh share of the residue, Mrs. Murphy is entitled to a one-tenth share of the intestate portion of the estate. On her behalf, it is contended that there is no ambiguity in the will. The will must be interpreted to speak from the date of the testator’s death and consequently operates so as to pass the Kerry Co-Operative shares held by him at his death but not Kerry Co-Operative shares held by him during the course of his life but disposed of prior to his death. Extrinsic evidence as to what the testator’s intention might have been as regards assets which are not addressed in the will is irrelevant. The Kerry Co-Operative shares held by the testator at the time of his death pass to the first named defendant in accordance with his will and the Kerry Group plc shares which are not expressly disposed of by the testator in his will fall into the residue of his estate.
5. This, in outline, is the dispute between the parties. In the balance of this judgment, I will set out how the particular circumstances giving rise to this dispute came about and how they fall to be resolved. However, it is worth observing that the Law Society frequently offers sound advice to the public regarding the advisability of seeing a solicitor in order to make a will. The need to re-attend a solicitor from time to time to ensure that a will is kept updated so that it accurately reflects the intentions of a testator in light of changing circumstances is also something of which the public ought to be made aware. The changes to Mr. Cronin’s assets and changes in his family circumstances are all matters on which a local solicitor could have readily advised him. This would have ensured that effect was given to his intentions, whatever they might have been, whether by up-dating the will or by a solicitor’s attendance recording that, having discussed the matter with him, the testator did not wish to make any changes to his will. Either way, knowledge that the testator had expressly considered and been advised upon the significance of his Kerry Group plc shareholding, would have enabled his surviving family to be confident that effect was being given to his wishes and might have avoided this litigation and the significant costs which the testator’s estate will necessarily incur as a result.
Background Facts – Testator
6. In many ways, the life and circumstances of the testator reflect the changes that have taken place in this country in the century since he was born. The testator was born in 1921 and was one of twelve children reared on a small farm at Ballahantouragh in County Kerry. He left school at the age of twelve or thirteen and began farming, ultimately inheriting the family farm which comprises 38 acres, from his parents. Some of his siblings emigrated, at least one joined the religious life and the others settled locally, marrying and having children. Although the testator never married, the evidence the court heard suggested that he was an integral part of a large extended family and was in regular contact with many of his siblings and his nieces and nephews living locally. The 38 acres held by the testator was of mixed quality and, in his active farming days, he was principally a dairy farmer. This is of some significance because as a milk supplier to a local creamery which ultimately became part of Kerry Co-Operative, he was allocated shares in Kerry Co-Operative from time to time from its foundation in 1973.
7. By all accounts, the testator lived a simple life. He resided in the same four-roomed house in fairly basic circumstances for all of his life. The house did not have running water until he was very elderly. Although he had electricity, he preferred to cook potatoes over an open hearth. The testator did not drive and, in his early years, he brought his milk to the creamery by horse and cart. He subsequently came to depend on his nephews for lifts to the creamery and to local marts and in his later years for transport to medical appointments and such like. In the years immediately preceding his death, he lived locally with his sister and latterly a nephew and although he no longer maintained an active dairy herd, he still attended regularly at his farm.
8. The testator lived frugally on the income received from the sale of milk and of stock. However, this simple lifestyle belied the fact that he was financially very secure. The share interest and dividends he received from Kerry Co-Operative and latterly from Kerry Group plc accumulated in the bank and at the time of his death, he had some €83,339 in various bank accounts in addition to his shareholdings. When valued for Revenue purposes in 2015, the testator’s estate was given a total value of €649,498 including the farm and its assets valued together at €136,400. It is likely that the estate was undervalued as the 390 Kerry Co-Operative shares were given their face value for a total of €39,000. By the time of the proceedings, the court was informed by the executor that these shares had a real value of €272,438.
9. Even more striking is the steady increase in the value of the Kerry Group plc shares. In 2015, these were valued at €386,078. In November, 2017, the executor’s solicitors wrote to all of those potentially interested in the testator’s estate in connection with the issues now before the court, at which time the Kerry Group plc shares were worth €793,248. By the time the proceedings were issued, the Kerry Group plc shares had been valued in May, 2018 at €802,989. Finally, at the hearing of the case, the court was advised that these shares were now worth €1,059,140. As can be seen from this, not only have the Kerry Group plc shares significantly increased in value since the testator’s death, they now represent the asset of major value in his estate. Even according the Kerry Co-Operative shares their current real value rather than their face value, the Kerry Group plc shares are worth nearly two and a half times the value of all other assets in the estate combined. Consequently, the issue of how these shares should be treated is one of real practical significance to all of those who might potentially inherit.
10. The first defendant was clearly close to his uncle and it is obvious that at the time the testator made his will, he intended the first defendant to be his heir and the principal beneficiary of his estate. The first defendant had spent much of his childhood on the farm where his mother had grown up and from the age of about fifteen he spent his weekends working on the farm with his uncle. Once he had his own car, the first defendant drove his uncle to the creamery and to the mart. As an adult, the first defendant called to the farm to see to the cattle on a daily basis and dropped up to the house to see his uncle every other day.
11. The first defendant has sworn affidavits and given oral evidence in the proceedings. He describes having been told by the testator on a number of occasions that he would inherit the land and the shares when his uncle died. These discussions typically occurred when the first defendant made suggestions regarding farm improvements (such as building a slatted unit for cattle or re-seeding a particular field) to which his uncle would respond that he was not going to undertake those changes at that stage of his life but the first defendant would inherit the land and the shares and could do what he liked then as the farm would be his. The most recent of these conversations took place in the year before the testator’s death. According to the first defendant, his uncle never mentioned Kerry Group plc shares specifically, referring instead to “the shares” or “all the shares” or the “Kerry Co-Operative shares”, although he kept all of his share certificates carefully in a folder in a drawer. The testator also mentioned that his sisters would get the money he had in the bank but never mentioned his sisters inheriting any of his shares.
Kerry Co-Operative – Kerry Group plc
12. In order to appreciate the argument made by the first defendant to the effect that the reference in the testator’s will to Kerry Co-Operative shares should be read as including Kerry Group plc shares, it is necessary to understand the origins of those two entities and the relationships between them.
13. Kerry Co-Operative was founded in 1973 in response to new market demands arising from Ireland joining the EEC. It is not a limited company being instead registered as a co-operative society under the Industrial and Provident Societies Act, 1893. It encompassed the business of a number of pre-existing creameries and its original membership comprised largely dairy farmers, such as the testator, to whom shares were allocated. Kerry Co-Operative expanded significantly in the following decade and in the early 1980s it diversified its business in response to a downturn in dairy production. This was a very successful move and by the mid-1980s, Kerry Co-Operative was a largescale food producer. This in turn gave rise to structural issues and a recognition that continued expansion would require significant capital investment which would be difficult for Kerry Co-Operative to raise as a co-operative society. Consequently, in 1986, the members of Kerry Co-Operative agreed to the restructuring of its business through the establishment of a plc, Kerry Group plc, in consideration for which 90 million shares in Kerry Group plc were allocated to Kerry Co-Operative. The rules of Kerry Co-Operative required that it hold at least 50% of the issued share capital in Kerry Group. A public offering of Kerry Group plc shares through the Irish Stock Exchange also took place.
14. Over time, two things became apparent. Firstly, shares in Kerry Group plc were significantly more liquid than those of Kerry Co-Operative as a result of which it was perceived that it would benefit Kerry Co-Operative members to convert part of their shareholding into Kerry Group plc shares. Secondly, Kerry Group plc proved very successful and, as it grew, it required more control over its own affairs. Consequently, Kerry Co-Operative started a process whereby a proportion of individual member’s shareholdings in Kerry Co-Operative were cancelled and members were issued with a pro rata number of Kerry Group plc shares. This commenced in 1993 with 5% of members’ shares being exchanged for Kerry Group plc shares. Once this decision was taken at co-operative level, individual members did not have a choice as to whether they wished to participate. Some 71 of the testator’s Kerry Co-Operative shares were cancelled in 1993 and he was allocated 775 Kerry Group plc shares in their place.
15. By 1996, a further share exchange was proposed. The effect of this would be to reduce the Kerry Co-Operative holding in Kerry Group plc below 50% and, consequently, it required a change in the rules of Kerry Co-Operative. This required a vote of the membership and members were provided with information and voting papers. The proposal gained national attention and was the subject of much local discussion and debate. It is not known whether or to what extent the testator, who was already in his 70s by this time, was aware of this debate nor whether he voted on the proposal or how he voted. In the event, the proposal was carried by a significant majority and the rule was altered so as to allow a reduction in Kerry Co-Operative’s holding in Kerry Group plc to not less than 20%. This meant that a series of share exchanges could and did take place in 1997, 2002, 2006 and 2007 without further reference to members.
16. Over this period, Kerry Co-Operative effectively changed from being a co-operative society with an active creamery business to being an investment company. The creamery business originally carried out by Kerry Co-Operative is now carried out by Kerry Agri which is a division of Kerry Group plc., although some of Kerry Agri’s creamery business in the south-west is carried out in premises formerly occupied by Kerry Co-Operative. Meanwhile, Kerry Group plc grew to become a significant global force in the agri-food sector. Both entities performed extremely well and their shares became valuable assets. In 2011, a further share exchange was proposed which would reduce the Kerry Co-Operative holding in Kerry Group plc below 20% and, consequently, a further rule change entailing a further vote of its members was required. By this time, the testator was 90. Again, the vote was passed and two further share exchanges took place prior to the testator’s death, one in 2011 and the other in 2013. The upshot of all of this was that at the time of his death, the testator’s shareholding in Kerry Co-Operative stood at 390 shares whereas his shareholding in Kerry Group plc was far more substantial at 8,937 shares.
17. The parties used different terminology to describe what occurred. The first defendant’s case is cast in terms of Kerry Group plc shares being substituted for Kerry Co-Operative shares. The second defendant describes the process more colloquially as a share “spin-out” and focuses on the technical nature of the transaction, namely a cancellation of shares in one entity and an allotment of shares in a different entity. Either way, it is clear that on each occasion, Kerry Co-Operative shares were cancelled and Kerry Group plc shares were allocated to members in lieu of the cancelled Kerry Co-Operative shares. Although members of Kerry Co-Operative voted in 1996 and in 2011 to approve the rule changes which facilitated the share exchanges, they did not vote on each of the exchanges as they occurred, save of course that the terms of the exchanges proposed in 1996 and in 2011 were known when members were voting on the rule change. Thus, members of Kerry Co-Operative did not have an individual choice whether to hold onto their existing Kerry Co-Operative shares or, alternatively, to accept Kerry Group plc shares on each occasion that the share exchanges occurred. The share exchanges were effectively mandatory although envisaged and facilitated by the rules changes which the membership as a whole supported.
18. For present purposes, the significance of the relationship between the two Kerry companies lies in the argument made by the first defendant that, in the mind of the testator, Kerry Co-Operative and Kerry Group plc were interchangeable entities such that he viewed his entire shareholding as a Kerry Co-Operative shareholding notwithstanding that some of those shares had been cancelled and replaced by Kerry Group plc shares. Two expert witnesses canvased their opinions as to the extent to which an elderly farmer would appreciate the distinction between the two companies. Mr. Foley, on behalf of the first defendant, felt that most farmers in this category would not understand the special tax treatment nor be concerned with the different markets for selling the respective shares unless they were actively involved in the disposal of shares. They might be generally aware that they had “old” shares and “new” shares but, in his experience, their primary concern was knowing the bottom line, how much income they had and how much tax they had to pay. On the other hand Mr. Madden, who gave evidence on behalf of the second defendant, emphasised the distinction between the two companies evident through a range of factors impacting on the way in which a farmer would receive dividends or share interest, the way in which tax would have to be paid on those dividends or that share interest and the way in which the shares could be disposed of. In his view, farmers did know the difference between the two entities. Further, as a member of Kerry Co-Operative, the testator would have received notification of the proposed rule change and would have been entitled to vote on it in both 1996 and 2011. In particular, Mr Madden felt that there was huge local interest in the proposed rule change in 1996 and it would have been a major topic of conversation in the farming community in which he lived such that it would be very difficult for him to have been unaware of it.
19. Legally, Kerry Co-Operative and Kerry Group plc are two distinct entities having a different legal status and serving different economic purposes. Mr. Madden stressed these differences, the most important of which is that Kerry Group plc is a publically quoted company and its shares are readily traded on the stock exchange whereas Kerry Co-Operative shares can only be traded informally on what is described as the “grey market”. Dividends are paid on Kerry Group shares whereas share interest is paid on Kerry Co-Operative shares and the timing and frequency of the payment varies as between the two entities. According to Mr Madden, these differences are evident from the testator’s own accounts which show receipt by him of both share interest and dividends separately. Further, the testator’s accounts show that he sold a tranche of his Kerry Group plc shares through the stock exchange in 2000. In fact, the testator engaged in a complicated transaction described as a “B and B” transaction whereby he sold and then re-purchased Kerry Group plc shares up to the value of his tax free allowance in 1999 in order to reduce the capital gains tax liability on the sale of an equivalent number of shares the following year. This transaction was handled for the testator by his nephew, an accountant, but in Mr Madden’s view it would necessarily have required some discussion with the testator as regards his Kerry Group shareholding.
20. Whilst legally distinct, there is nonetheless a significant relationship between the two entities, not least reflected in Kerry Co-Operative’s continued shareholding in Kerry Group plc. In addition, in earlier times the two entities shared premises and personnel and there was an overlap in directors, although more recently this no longer occurs. Further, the corporate branding used by the two entities was, at least during the testator’s lifetime, very similar. The court was struck by the similarity in letterhead, presentation and style of the documents and correspondence emanating from the two entities which, at the very least, suggested a connection between the two and may even have had a greater capacity to confuse.
21. Finally, the court’s attention was drawn to the provisions of s. 701 of the Taxes Consolidation Act, 1997, as amended. This section provides for the corporation tax and capital gains tax treatment of certain shares acquired by individuals pursuant to a share transfer taking place after 6th April, 1993. The transfer must be one made by a “society” of shares in a company of which the society has or has had control. The society must be one registered under the Industrial and Provident Societies Act, 1893 and must be an “agricultural or fishery society” which is defined under s. 133(1)(a), as amended. Amongst the conditions which must be satisfied by an agricultural society in order to come within the scope of s. 701, is that all or the majority of its members are mainly engaged in agriculture.
22. Section 701(4) provides that for the purposes of capital gains tax:-
“(a) the cancellation of the original shares (or the appropriate number of those shares) shall not be treated as involving any disposal of those shares, and
(b) each member shall be treated as if the shares transferred to that member in the course of the transfer were acquired by that member at the same time and for the same consideration at which the original shares (or the appropriate number of those shares) were acquired by that member…”
Although the provision cited above comes from the Taxes Consolidation Act, 1997, it reflects an earlier provision which had been introduced in 1993 to facilitate share exchanges of this nature. As there is a very limited cohort of societies involved in the exchange and transfer of shares in a manner which comes with the scope of s. 701, it is not difficult to extrapolate that the Oireachtas intended that this special tax treatment would apply to the process commenced by Kerry Co-Operative in 1993.
23. Significant reliance was placed by the first defendant on s. 701. It was argued that the effect of s. 701 was that the testator was deemed to have acquired his Kerry Group plc shares at the time at which he in fact acquired his Kerry Co-Operative shares. Thus, it was contended that the deceased was deemed to have Kerry Group plc shares at the time he made his will, although he did not actually have them at that time. This contention is disputed on behalf of the second defendant who argues that the provisions of s. 701(4) are specifically for the purposes of the capital gains tax treatment of the shares disposed of and acquired in a share exchange and that the section does not operate so as to deem Kerry Group plc shares to have been acquired at the time of acquisition of Kerry Co-Operative shares for any other purpose.
The Testator’s Will
24. The relevant portions of the testator’s will provide as follows:-
“I give, devise and bequeath my dwelling house and farm of lands at Ballahantouragh aforesaid together with all the stock, crops, farm machinery, furniture, chattels and Kerry Co-Operative shares and effects therein and thereon to my nephew Thomas O’Connell of Cordal East, Castle Island aforesaid absolutely.
All the rest residue and remainder of my estate, assets and effects of whatsoever nature or kind or wheresoever situate of which I may be seized or possessed at the time of my death I give, devise and bequeath to my sisters Margaret Hanratty, Nora Bastible, Kathy O’Connell, Mary O’Connell, Hanna O’Donoghue, Theresa Riordan, Breda Murphy, Elizabeth Cronin and Sister Benedict Cronin and my brothers Lawrence Cronin and Michael Cronin in equal shares absolutely and I appoint them my residuary legatees and devisees.”
Submissions of the Parties:
25. The central issue in these proceedings is the interpretation of the testator’s will to ascertain whether the gift of Kerry Co-Operative shares in the terms in which it is expressed in the will covers the Kerry Group plc shares of which the testator was possessed at the date of his death. An initial argument in the first defendant’s written submissions that the phrase “Kerry Co-Operative shares and effects therein and thereon” was intended to encompass something more than the shares themselves was not seriously pursued at trial. In any event, a more natural reading of the language used in the will, bearing in mind that it was prepared by a solicitor, suggests that “therein and thereon” is primarily a reference back to the earlier gift of the dwelling house and farmland in the same paragraph. I do not think that the words “therein and thereon” are in themselves sufficient to enlarge the gift of Kerry Co-Operative shares so as to include any additional shareholding that the testator subsequently acquired.
26. Instead, the argument made by the first defendant was twofold. Firstly, it was contended that as the share exchanges which resulted in the testator being possessed of Kerry Group plc shares rather than Kerry Co-Operative shares reflected the outcome of an external process into which the testator had no input and over which the testator had no control, those shares should be treated as having been substituted for the Kerry Co-Operative shares which the testator clearly intended to gift to the first defendant. It was accepted that Kerry Co-Operative and Kerry Group plc are legally distinct entities but contended that this would not be readily apparent to a person in the testator’s position. The first defendant went so far as to assert that the testator did not understand the distinction between Kerry Co-Operative and Kerry Group and that, as far as he was concerned, he simply had Kerry Co-Operative shares. Secondly, it was contended that the change in circumstances resulting from the change in the testator’s shareholding created an ambiguity as regards the scope of the intended gift to the first defendant in the testator’s will. Consequently, it was urged that extrinsic evidence should be admitted under s. 90 of the Succession Act, 1965 to clarify that the intention of the testator was to leave his entire shareholding to the first defendant. The first defendant did not contend that there was a contradiction on the face of the will but, rather, that such evidence should be admitted to assist in its construction. In this regard, it was strongly argued that it did not follow from the absence of any reference to Kerry Group plc in the will that the testator intended these shares to fall into the residue of his estate.
27. The second defendant argued against the admission of oral evidence in respect of the testator’s intention on the basis that the will was clear in its terms. The failure to address an asset subsequently acquired did not amount to a contradiction nor give rise to any ambiguity or lack of clarity such that extrinsic evidence would be required to assist in the construction of the will. The second defendant relied on s. 89 of the Succession Act and the principle that a will is to be construed and to take effect from the date of death of the testator. Therefore, the court should not look firstly at the changes which had taken place to the testator’s property since the date of the will in order to ascertain whether an ambiguity arose. Instead the court should look at the will itself and the assets held by the testator at the date of his death. Further, the second defendant emphasised that the intention the court is seeking to ascertain is the intention of the testator as expressed in the will. The first defendant had conceded that when executing his will in July, 1990, the testator did not intend to leave him Kerry Group plc shares as, at that time, he did not possess any Kerry Group plc shares. Extrinsic evidence could not be admitted to show what the testator’s intention might have been on a date subsequent to the execution of the will in relation to an asset acquired after the date of the will and not mentioned in it. In summary, the second defendant contended that the court was not being asked to construe the testator’s will but to reconstruct the testator’s will to take account of assets subsequently acquired which are not expressly dealt with in the will itself. This, it was argued, was simply impermissible.
28. For completeness, ss. 89 and 90 of the Succession Act, 1965 provide as follows: –
“89.— Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.
90.—Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.”
Interpretation of Will – Presumption Against Intestacy
29. Before looking at the admissibility of extrinsic evidence, I propose to deal briefly with a point made by the first defendant, albeit somewhat in passing, that a will should be construed so as to avoid an intestacy. The logic of this presumption flows from the inference that any testator who goes to the trouble of making a legally valid will does not, in principle, intend that his estate should be dealt with as if he had died intestate. The presumption is given statutory expression in s.99 of the Succession Act 1965 but in terms which refer to “the purport of a devise or bequest” admitting of more than one interpretation. In this case the testator made a will which, had he died just after he had made it in 1990, would have been effective to dispose of the entire of his estate in accordance with his intentions as expressed in the will. The will gave specific gifts to the first defendant and then gifted the entire of the residue to a group of residuary legatees. Generally, an intestacy or partial intestacy should not arise where the will includes a valid gift of the entire of the residue of an estate. However, in this case because 7 of the 11 siblings named as residuary legatees pre-deceased the testator and the residuary gift did not specify what was to happen with the portion gifted to any such pre-deceased legatee, a partial intestacy arose as regards seven-elevenths of the residue. In this context the first defendant suggests that the court should lean against construing the will so that the Kerry Group plc shares fall into the residue as it would follow that a significant portion of the shares would then by distributed by way of partial intestacy.
30. I am not convinced that the presumption operates in this manner. In this regard I note that s.99 talks in terms of favouring an interpretation under which a devise or bequest is operative where more than one interpretation of that devise or bequest is possible. It does not appear to require that an interpretation of a particular devise or bequest be preferred in order to ensure that a different devise or bequest is or remains operative. What the first defendant suggests is that because the death of some of the residuary legatees has created a partial intestacy in respect of the gift of the residue, the gift of the shares should be read in a particular way so as to prevent them falling into the residue. However, there is no ambiguity in the gift of the residue. There is an omission to deal with certain circumstances which have occurred which has had an impact on the distribution of the residue. It is not suggested that there is an alternate reading of the residuary gift available which would prevent the partial intestacy.
31. The real issue before the court is whether the specific gift of Kerry Co-Operative shares includes the subsequently acquired Kerry Group plc shares or alternatively whether those shares fall into the residue of the estate. In my view it is largely coincidental that a significant portion of the residuary gift will now be distributed on a partial intestacy. This has not come about by virtue of the manner in which the gift of shares is expressed in the will nor how it might be construed by the court. Had the will not included a broadly expressed residuary gift, the position might be different. For example, had the gift to the siblings been described as including only the money held by the testator at his death, then an argument that the presumption against intestacy should operate so as to construe the reference to Kerry Co-Operative shares as including Kerry Group plc shares would be commensurately stronger as the alternative would be that a significant portion of the testator’s estate would simply fall outside the ambit of his will altogether – which is presumed not to have been intended. That is not the situation here. Instead the court is trying to determine which gift a particular asset falls into in circumstances where the entire of the testator’s estate is, prima facie, disposed of by his will. In my view it would be artificial to approach that task on the basis that the terms of the will should be construed against the residual gift because a number of the residuary legatees have since died. It would also be unfair to the surviving residuary legatees to have any gift to them affected by altering the construction of a different gift because of the happenstance of the death of some of the residuary legatees.
Interpretation of Will – Extrinsic Evidence
32. At the end of the first day of the trial, the court ruled on the first defendant’s application to adduce evidence under s. 90 for the purpose of showing the testator’s intention. The court accepted that an arguable case had been made out that there was an ambiguity arising as a result of events which had taken place since the date on which the will was executed. However, it was not possible to determine whether this ambiguity was such as to warrant the admission of extrinsic evidence without hearing the evidence itself. Therefore, I ruled that the court would hear the proposed evidence de bene esse and defer a formal ruling on its admission to this judgment. In that context I had been referred to and was mindful of the fact that whilst a similar approach was adopted in Shannon v Shannon[2019] IEHC 400 and oral evidence heard de bene esse, MacGrath J. ultimately decided not to admit that evidence, commenting:
“In my view, if anything, to admit extrinsic evidence in this case may have the contrary effect of introducing ambiguity into the terms of the will where they are otherwise clear on their face.”
33. The court was addressed on a large number of authorities in which extrinsic evidence had been rejected or, alternatively, admitted by the courts. The leading and most authoritative case in the field is Rowe v. Law[1978] IR 55 in which the Supreme Court adopted what might be considered a narrow reading of s. 90, the effect of which is apparent from the summary contained at p. 73 of Henchy J.’s judgment, as follows:-
“To sum up: s. 90 allows extrinsic evidence of the testator’s intention to be used by a court of construction only when there is a legitimate dispute as to the meaning or effect of the language used in the will. In such a case (e.g. In re Julian) it allows the extrinsic evidence to be drawn on so as to give the unclear or contradictory words in the will a meaning which accords with the testator’s intention as thus ascertained. The section does not empower the court to rewrite the will in whole or in part. Such a power would be repugnant to the will-making requirements of s. 78 and would need to be clearly and expressly conferred. The court must take the will as it has been admitted to probate. If it is clear, unambiguous, and without contradiction then s. 90 has no application. If otherwise, then s. 90 may be used for the purpose of giving the language of the will the meaning and effect which extrinsic evidence shows the testator intended it to have. But s. 90 may not be used for the purpose of rejecting and supplanting the language used in the will.”
I accept the argument made on behalf of the first defendant that it is not necessary for there to be a contradiction on the face of the will for extrinsic evidence to be admissible. The section envisages that such evidence may be admitted to assist in the construction of a will. A legitimate dispute as to the construction of a will may arise where any of characteristics listed in Rowe v Law is absent, namely whether a will is clear, unambiguous and without contradiction. These are not cumulative requirements but rather illustrate of the types of circumstances in which extrinsic evidence may be appropriate to assist a court in the construction of a will. I accept that ambiguity may arise because of a change in circumstances since the will was made giving rise to an issue as to the meaning or effect of the language used. That may be a change in the testator’s circumstances or in those pertaining to a beneficiary or the assets the subject of a gift. Thus, in principle extrinsic evidence is admissible in this case because of the significant change in the testator’s assets since he made his will giving rise to some uncertainty as to how the will should be construed. However, this does not however dispose of the difficult issue raised by the second defendant as to the precise purpose for which such evidence can be admitted.
34. It is interesting to note that Henchy J. had framed the issue in Rowe v Law in terms which are not dissimilar to the issues arising in this case (from p. 69 of the report): –
“…where there is a clear and unambiguous disposition in a will of portion only of a fund, and there is extrinsic evidence available in a court of construction to show that the testator really intended to make a disposition of the whole of the fund, does s. 90 of the Succession Act, 1965, allow the court of construction to use that extrinsic evidence for the purpose of superseding the clearly expressed intention in the will?”
The court answered that question in the negative, although there was a strong dissenting judgment from O’Higgins C.J. The analogy is not exact for two reasons. Firstly, as Henchy J. subsequently points out, if extrinsic evidence had been permitted to advance the construction contended for by the appellants, it would, in his view, have enabled “ the court to rectify the will by giving testamentary effect to a disposition which is not to be found in the will and which actually conflicts with the disposition in the will ”. In this case, although the construction urged on behalf of the first defendant would enable effect to be given to a disposition which is not expressly found in the will, it would not actually conflict with any express disposition in the will. Secondly, on the facts in Rowe v. Law, there was no material change to the testator’s estate between the date on which she made her will and the date on which she died. Consequently, her intention as expressed in her will related to essentially the same assets that were admitted to probate as part of her estate on her death. Here, the court is asked to construe the testator’s intention expressed in respect of a particular asset of which he was in possession at the time he made his will as extending to cover a different but related asset of which he was not in possession at the time he made his will.
35. It is this latter feature of the case which makes it particularly problematic. Almost all of the authorities to which the court has been referred concern cases in which it was contended that either the beneficiary of a gift (Bennett v. Bennett (Unreported, 24th January, 1977, Park J.); In Re Tomlinson, Lindsay v. Tomlinson (Unreported, 13th February, 1996) and Marren v. Masonic Haven Ltd[2011] IEHC 525)) or the gift itself (In Re Collins, O’Connell v. Bank of Ireland[1998] 2 IR 596 and Gibb v Flynn (Unreported, Barron J., 21st December 1983)) had been misdescribed in a manner which, in most of the cases, would have made it impossible to give any effect to the gift at all. In each of those cases (save Gibb v Flynn where it was deemed unnecessary), extrinsic evidence was admitted to show what the testator actually intended by the language used in the will. Invariably the extrinsic evidence related to the description of property or identity of persons in existence and known to the testator at the time the will was made and therefore property or persons in respect of whom the testator clearly intended to express a testamentary intention. Other cases referred to concerned a mistake of fact clearly evident in the terms of a condition to which a gift was subject (Corrigan v. Corrigan[2007] IEHC 367) and a very clear contradiction in the terms of the will such that all of the clauses could not simultaneously be given effect (Lynch v. Burke[1999] IEHC 22). None of the cases dealt with the presumed intention of a testator in respect of an asset of which he had not been in possession at the time the will was made.
36. The underlying theme running through these cases – misdescription and mistake – brings into focus the argument made on behalf of the second defendant to the effect that there is no legal basis for introducing extrinsic evidence to show what the intention of the testator might have been as regards an asset which he did not own at the time he prepared his will and in respect of which he does not purport to make any disposition in his will. There is certainly a difference of substance between saying that the words used were intended to mean something other than what they apparently say and that the words used indicate that the testator would have had a specific intention as regards something which is not mentioned at all. It was a central plank of the second defendant’s case that the intention in respect of which evidence could be admitted under s.90 could only be the intention of the testator as of the date of the will, in other words what the testator actually meant by the words used. It was not suggested that a testator could not have an intention at the time of making a will in respect of assets that he might acquire in the future. However, where a gift in a will is not expressed in terms which encompass future assets of the type being gifted, it cannot be said that the testator has an intention in relation to them.
37. As noted, oral evidence was heard from three witnesses, the first defendant, Mr. Chris Foley, an accountant and tax advisor called as an expert witness by the first defendant, and Mr. David Madden who has 40 years’ experience in the preparing of accounts for farmers, albeit without a formal accountancy qualification, called by the second defendant. The evidence of the two expert witnesses was of considerable assistance to the court in understanding the origins and development of both Kerry Co-Operative and Kerry Group plc. However, their evidence as to what the testator may or may not have understood as regards these entities and his shareholdings in them was necessarily speculative since neither of them had ever met the testator in either a personal or a professional capacity. Mr Foley felt that a farmer of the testator’s age and background would probably not have been aware of or understood the difference between the two companies and their shareholdings, but that this would vary on a case by case basis depending on the farmer. Mr Madden believed that a farmer in the testator’s position would be aware of the distinction, not least because the share exchanges and the gains people made were major topics of conversation locally. The testator’s own accountant, also a nephew of his, was not called.
38. Having considered the evidence, particularly that of the first named defendant, I have come to the conclusion that it is not necessary for me to formally rule on whether it should be admitted under s. 90. This is because I do not find that evidence, even taken at its height, to constitute compelling evidence as to the testator’s intention in relation to the disposition of an asset which he did not own at the time he made his will. In my view, as the evidence does not establish on the balance of probabilities that the testator actually had the intention contended for, the question of whether the language used should be construed to give effect to this intention does not arise. This is not to say that I found Mr. O’Connell to be anything less than a truthful witness. I accept that he honestly believes that his uncle intended to leave the Kerry Group plc shares to him as part of “all of the shares” which his uncle owned at the date of his death. However, Mr. O’Connell’s belief as to his uncle’s intention is of limited evidential value where the basis for that belief as recounted in his evidence does not possess the necessary probative quality to displace the plain meaning to be deduced from the text of the will. This is for the following reasons.
39. The evidence of the first defendant amounts in substance to having been told by his uncle on a number of occasions that his uncle intended to leave his farm and his shares to him so that when he inherited he would have sufficient funds to carry out whatever work he wished on the farm. As it happens, leaving aside the Kerry Group plc shares altogether, the testator’s will achieves this. In addition to the farm and the farm assets, the first defendant inherited Kerry Co-Operative shares with a current value in excess of €250,000. In other words, reading the words “Kerry Co-Operative shares” as being limited to Kerry Co-Operative shares is not inconsistent with the sentiments expressed by the testator, namely that his nephew should not just inherit the farm but that he would also, through the shares, have sufficient funds to make improvements to the farm. Consequently, comments made generally by the testator during the course of his lifetime about the contents of his will in circumstances where he had provided generously for the nephew to whom he was speaking, cannot be read as reflecting any contrary intention to that expressed in his will.
40. Insofar as the first defendant recalls his uncle saying to him that he was leaving the money in his bank accounts to his sisters, that statement is only partially accurate. Firstly, the residuary gift is expressed in terms which are broader than simply a reference to cash or bank accounts. In fact, neither cash nor bank accounts are mentioned at all although they are necessarily incorporated in the gift of “ all the rest residue and remainder of my estate, assets and effects of whatsoever nature or kind ”. Further, the pool of residuary legatees consisted not just of the testator’s sisters but all of his siblings including two brothers. Again, this is not to suggest that the first defendant’s evidence was untruthful in any way; rather his uncle’s comments did not accurately reflect the terms of the will that he had made. Even though making a will is an important and serious step, sometimes people do not remember the full detail of all the testamentary choices they have made, especially over the passage of time. For various reasons people may choose to be vague about their financial affairs even to those closest to them, for example here the testator never told the first defendant how much money he had in the bank. On occasion people may even misrepresent the contents of their wills or of changes made to wills, knowing that they will not have to live with the consequences. Whilst there is no reason to believe that this testator was being anything other than honest in his discussions with his nephew, at the same time he was not entirely accurate. It is not possible at this stage to know whether that was as a result of deliberate vagueness or simply not remembering accurately the terms of his own will.
41. Finally, it is notable and, indeed, stands to the first defendant’s credit that he does not assert that the testator ever made any specific comment to him about Kerry Group plc shares. It is argued on the first defendant’s behalf that this indicates the testator did not appreciate the distinction between his Kerry Co-Operative shares and his Kerry Group plc shares. I have some difficulty accepting that proposition, for which there is no direct evidence. In short, it is simply not possible for the court to conclude on the evidence that the testator was unaware either that he possessed Kerry Group plc shares or that the Kerry Group plc shares he possessed were materially different to his Kerry Co-Operative shares. The testator as a member of Kerry Co-Operative would have received information and correspondence at the time votes were taken in 1996 and in 2011. Although he was been very elderly by 2011, he was still actively farming and in his early 70s in 1996. Subsequent to each of the share exchanges, he received share certificates from Kerry Group plc which he kept carefully; he received both share interest from Kerry Co-Operative and dividends from Kerry Group plc with matching documentation and correspondence from both of those entities. The interest and dividends are recorded as part of his annual income in the tax returns exhibited in the proceedings as is documentation evidencing the sale of Kerry Group plc shares by the testator in 2000. In light of all of this evidence, the court cannot conclude that just because the testator never mentioned Kerry Group plc shares to the first defendant and referred generically to “my shares” or “all the shares”, he was necessarily unaware of the fact he had shares in that company or that it was distinct from his shareholding in Kerry Co-Operative. To paraphrase somewhat – an absence of evidence of awareness is not the same thing as evidence of the absence of awareness. In addition, for the court to infer that the testator was unaware of the distinction between the two entities, it would have to conclude that the testator paid no heed to documentation provided to him, the important elements of which were kept by him, over 20 years.
42. Of course, it might equally be said that on the basis of this evidence the court could not definitively conclude that the testator was aware of all of these matters. This is true, but certainty is not required. The purpose of s. 90 is to admit extrinsic evidence of the testator’s intention in order to assist in the construction of a will where there is an ambiguity or contradiction in its terms. In my view, such evidence must be capable of establishing the contended for intention on the balance of probabilities. While the section does not place any limit on the type of evidence which might be admitted, it would be difficult for a court to infer a positive intention from an absence of evidence of the testator’s views regarding a salient fact. There is a significant difference between finding that a testator may not have been aware of an asset and, consequently, did not make express provision for that asset in his will and finding that a testator may not have been aware of an asset and, consequently, must be taken as having intended to include that asset in the specific disposition of a different asset under his will. Extrinsic evidence under s.90 is to be admitted to show the intention of the testator. A lack of awareness of an asset or a lack of appreciation of its financial or other significance, is not of itself evidence of intention in relation to it.
43. However, as I have indicated above, the evidence before the court is simply not cohesive enough to allow the court conclude, without a considerable degree of speculation, that the testator was unaware of his Kerry Group plc shareholding or of its distinct nature from his Kerry Co-Operative shareholding such that he necessarily intended the gift to the first defendant to include both. Consequently, I do not find myself in the same position as Barron J. in O’Connell v Bank of Ireland[1998] 2 I.R. 596 where he acknowledged, having heard extrinsic evidence, that the testator intended to leave the plaintiffs a gift which was not expressed in her will. In her will the testator left the plaintiffs the contents of a house, but not the house itself, which was not otherwise mentioned in the will and consequently passed with the residue. Barron J. held that evidence explaining how that might have come about was inadmissible as there was no ambiguity or lack of clarity in the terms of the will itself. Equally there was no suggestion that what appeared in the will did not reflect the intentions of the testator. Rather, the intention of the testator as regards the plaintiffs was frustrated by the omission from the will of any reference to the gift she had planned to make. I am not in a position to make a similar finding that this testator intended to leave his Kerry Group plc shareholding to the first defendant. If he did, it may well be that his intention was frustrated by omission – i.e. the failure to draft the will to provide a sufficiently inclusive gift of shares or the failure to make a codicil when the testator came into possession of the shares. However, even on this analysis, the authority of O’Connell v Bank of Ireland suggests that the court could not admit extrinsic evidence to establish the intended gift.
44. In circumstances where I do not find the evidence given by the first defendant or the expert witnesses to be of sufficient probative value to enable the court to reach any conclusion regarding the testator’s intention, it is not necessary to formally rule as to whether that evidence should be admitted. This might be regarded as incongruous in circumstances where a considerable portion of this judgment has been taken up with the discussion of that evidence. However, I am expressly reserving my position on this because I acknowledge that there is a significant legal dispute between the parties as to whether extrinsic evidence under s. 90 should ever be admitted to show the intention of the testator other than on the date he executed his will. The second defendant argues, strongly, that although the will speaks from the date of death, it is the intention of the testator on the date he executed the will, and only on that date, which is relevant. The first defendant contends that because the will speaks from the date of death, it is the intention of the testator at the date of his death which is relevant. The determination of that issue should await a case in which the evidence, if admitted, would have a meaningful impact on the outcome of the case.
Change in Property disposed of by Testator
45. Although the first defendant’s case is primarily based on the need for extrinsic evidence to assist in the construction of an ambiguous will, his second argument is not dependent on that evidence and can be considered on a standalone basis. The first defendant contends that the gift to him of Kerry Co-Operative shares should be read as including the Kerry Group plc shares because the issuing to the testator of the Kerry Group plc shares in lieu of his cancelled Kerry Co-Operative shares resulted from transactions over which the testator had no control. This position is materially different to circumstances in which a testator might chose to sell shares which he held at the time of making a will and to use the proceeds of sale to purchase a different stock of his choosing. Consequently, the Kerry Group plc shares should be regarded as having been partially substituted for the Kerry Co-Operative shares mentioned in the will. The second defendant disagrees and argues that the circumstances of this case do not conform with the limited circumstances in which courts have found that notwithstanding a change to specific property which is the subject of a gift in a will, the property remains substantially the same thing so as to prevent the doctrine of ademption applying.
46. In normal course, where a testator makes a gift in his will of a specific item of property which no longer exists or which he no longer owns at the date of his death, the gift will fail and is said to be adeemed. To determine whether a gift has been adeemed, the court must construe the terms of the will to ascertain exactly what the testator intended to leave. In particular, a court must look to the extent to which the phrasing of the gift by the testator can be taken to have contemplated a change in the form of the property the subject of the gift. Obviously, a gift that is phrased generally will be far less likely to be held to have been adeemed than one which is phrased specifically. Had this testator simply left his “shares” to the first defendant no issue would arise just because some of the shares he held at his death were not the same as those he held at the date of the will. Much of the case law to which the court was referred on this topic dealt with gifts of stocks and shares and the consequences of structural alterations to the underlying investments and companies in which a testator held those shares. The parties urged on the court differing interpretations of two of those cases, namely, Slater v. Slater[1907] 1 Ch 665 and Jenkins v. Davies[1931] 2 Ch 218. However, the starting point for considering both of these cases is the earlier decision of Oakes v. Oakes(1852) 9 Hare 666.
47. In Oakes v. Oakes, which shares some factual similarities with the present case, the testator’s will bequeathed to the plaintiff all of his Great Western Railway shares and all other railway shares of which he was possessed at the date of his death. At the time he made his will, the testator owned various classes of Great Western Railway Company shares. Between the date of the will and the date of the testator’s death, the Great Western Railway Company (with the approval of its members) exercised a statutory power to convert its shares into capital stock so that, on his death, most of the testator’s original shareholding in the Great Western Railway Company had been converted into stock in the same company. The testator had also bought additional stock after the date of the will. It was not known if the testator had attended the meeting at which the resolution was passed. The issue before the court was whether the original gift was a specific gift of shares which had been adeemed or, alternatively, whether the gift of railway shares covered the stock in the same company owned by the testator at the date of his death. Firstly, the court held that the word “shares” in its ordinary meaning did not include stock (its decision on this issue was overturned by subsequent case law and indeed that distinction is not one with any particular resonance in modern times). However, a distinction was drawn between the stock which had been purchased by the testator subsequent to the date of his will and which did not pass as part of the gift and the stock which represented his original shareholding, which did. The difference was explained by Turner V.C. as follows: –
“So, in this case, the testator had this property at the time he made his will, and it has since been changed in name or form only. The question is whether a testator has at the time of his death the same thing existing – it may be in a different shape – yet substantially the same thing.
I think that the £7,000 exists in the same state substantially as it existed at the date of the will and that it passed under the bequest. I think the present case is more strong in favour of that construction, inasmuch as it is not shown that the testator in any respect concurred in the conversion of the shares into stock.”
The test posited by the court was whether the gift had changed in name or form only such that it was substantially the same thing. However, it is apparent that the court also regarded it as important that the testator had not personally been responsible for or concurred in the conversion of the shares into stock.
48. The application of this test in subsequent cases ensured that gifts were not adeemed where the following changes had taken place between the date of a will and the date of the death of the testator: the sub-division of shares (Re Pilkingtons Trust[1865] 6 New Rep 246; Re Greenbury[1911] 55 Sol. Jo. 633); shares held in a bank which merged with another bank (Re Clifford[1912] 1 Ch. 29); shares held in a company which was wound up but reconstructed and reincorporated in the same name (Re Leeming[1912] 1 Ch 828).
49. The strictness with which the test has been applied seems to have varied from time to time and not always with a clear rationale for the distinction between cases. However, drawing on the last sentence of the passage from Oakes v. Oakes quoted above, courts appear to have placed some emphasis on the extent to which the testator exercised an element of choice or control over the changes made to the original shareholding. Thus, in In Re Lane, Luard v. Lane[1880] 14 Ch D 856 when debentures which a testator held at the date of his will became payable, the testator accepted the company’s offer of an option of converting them into an equivalent amount of debenture stock rather than accepting payment. In holding that the gift of debentures did not cover the debenture stock, the court relied not only on the differences between the two but also on the fact that the testator had made a choice in accepting the debenture stock offered. Hall V.C. stated: –
“I do not think that Oakes v. Oakes governs this case. It appears to me that this will is not sufficient to pass the new thing which the testator acquired and which he took in exercise of his option instead of the thing which he had bequeathed by his will. I hold it to be a substantially different thing from that which he gave, and that it does not answer the description contained in the will.”
50. The second defendant relies on Slater v. Slater (above) to argue that the shares in Kerry Group plc, being a completely different company, do not pass as part of the gift of Kerry Co-Operative shares under the will. That case was argued on the basis that ademption depended on the presumed intention of a testator to deprive the legatee of the thing which had been gifted to him, so that where the nature of thing had been changed by legislation and not by any act of the testator, ademption did not occur as no intention to deprive could be shown. The testator had left the interest arising from money invested in Lambeth Water Company to the plaintiff. Between the date of the will and the testator’s death, the Lambeth Water Company was acquired by the Metropolitan Water Board under statute and stock in the water board was issued to the testator as compensation for the stock previously held by him in the water company. The statute under which the undertaking of the water company was vested in the newly created water board allowed the water company to accept stock in lieu of cash by way of payment. The Lambeth Water Company prepared a scheme which was notified to its members and, under the terms of that scheme, water board stock was issued to the testator. Once the water company had made its choice, individual members of the water company did not also have a choice between accepting compensation in cash or in the form of water board shares.
51. The Court of Appeal held that the gift could not be applied to the Metropolitan Water Board shares in the testator’s possession at the time of his death. Firstly, Cozens-Hardy M.R. rejected the proposition that ademption could not apply where the change to the property had been brought about by a process external to the testator’s own choice or actions, stating: –
“There was a time when the courts held that ademption was dependent on the testator’s intention, on a presumed intention on his part; and it was therefore held in old days that when a change was effected by public authority, or without the will of the testator, ademption did not follow. But for many years that has ceased to be law, and I think it is now the law that where a change has occurred in the nature of the property, even though effected by virtue of an Act of Parliament, ademption will follow unless the case can be brought within what I may call the principle of Oakes v. Oakes …”
Thereafter, the Oakes test was applied with Cozens-Hardy M.R. asking the rhetorical question “ where is the thing which is given ?” and reaching the firm conclusion that the stock held by the testator at his death was not the same thing as that the subject of the gift in the will. Of course, the second defendant here also argues that, on the facts of this case, “ the thing ”, namely, the Kerry Co-Operative shares still exist with a number of such shares being held by the testator at the time of his death so that the gift of these shares has not failed and is not adeemed. The other members of the court agreed, with Sir Gorrell Barnes P. speaking in terms of the “ absolute annihilation or extinction ” of the testator’s interest in the water company and the compensation awarded being “an allotment of different stock in a different concern”.
52. The first defendant argues that the subsequent decision of Jenkins v. Davies (above) conflicts with the decision in Slater v. Slater and, without quite going so far as to suggest that Slater was overruled, suggests that by reason of its factual similarity Jenkins should be preferred. In Jenkins, the testator left all of the monies he had invested in the Swansea Harbour Trust on certain trusts. Subsequent to the date of the will the undertaking of the Swansea Harbour Trust was vested by statute in the Great Western Railway Company and the statute provided that stock in the railway company should be issued “ in substitution ” for Swansea Harbour stock. Section 12 of the relevant statute provided that references in “ any Act of Parliament, deed, will, codicil, book, document, instrument or writing ” to Swansea Harbour Trust stock “ shall be deemed to be a reference to the stock of the company… substituted therefore ” (i.e. Great Western Railway Company stock). The Court of Appeal held that the bequest operated to pass the substituted Great Western Railway stock under the will. The first defendant argues by analogy that Kerry Group plc shares should be regarded as having been issued in substitution for Kerry Co-Operative shares and the gift construed so as to pass those shares to the first defendant.
53. In urging that Jenkins should be preferred to Slater, the first defendant relies on the fact that, as in Jenkins, the testator here had no control over the change in the structure of the company nor any choice over the form in which he received compensation for his cancelled shares. This, it is argued is a distinction between Jenkins and Slater that makes the former more relevant to this case. However, on a close reading of the two cases, I do not think that this distinction is accurate. The choice as to the form of compensation in Slater (cash or stock) was one made by the water company whose undertaking was being transferred to the water board and was not made on an individual level by shareholders. The shareholders were notified of the proposed scheme under which the water company elected to take stock but the report is unclear as to whether the scheme required the approval of the shareholders in order to become operative. Even if it did, once it was approved, individual shareholders had no real choice as regards keeping their original investments or the form of compensation they received. Therefore, in neither case did the individual shareholder have any real control over the change made to the stock once decisions had been made at a corporate level and consequently the legal context in both cases is similar to this.
54. Further, the description in Jenkins of the new stock as having been substituted for the original stock (a phrase upon which the first defendant relies) was not, in my view, intended generally to refer to all transactions in which one type of share is replaced by another. Instead, the Court of Appeal was using the statutory language of the provision which expressly dealt with the consequences of the change which that statute authorised. That section (s.12) repeatedly referred to the stock as having been substituted and how the substituted stock was to be treated. It is unsurprising that the court used the same words. The stock was regarded as having been substituted because the statute said it was to be so regarded, not because the court had examined the underlying nature of the transaction and decided that substitution was what in fact had occurred. Therefore, I do not think that Jenkins is authority for the proposition that where testator has received shares in a company in exchange for shares in a different company which he previously held, those shares are to be regarded as having substituted one for the other for testamentary purposes.
55. In reality, the distinction between Slater and Jenkins lies in the fact that in Jenkins, the replacement shares were governed by a statutory provision which expressly stated that any reference to the earlier stock in any document including in a will would be deemed to be a reference to the new stock which had been substituted for it. Indeed, it is notable that the starting point taken by the members of the Court of Appeal was that, absent s. 12, it was clear that the will would not operate to convey the railway stock. As Lord Handworth M.R. put it on p. 230 of the report: –
“It is plain that the words of the gift in the will would not convey the Great Western Railway stock by words indicative of the stock of the Swansea Harbour Trust. But to meet any difficulty arising from the change of stocks s. 12 of the Act was passed.”
Lawrence L.J. expressed a similar view on p. 233: –
“I agree with the learned judge that but for s. 12 the bequest of the Swansea Harbour stock would have been adeemed.”
Thus, were it not for the statutory provision, the outcome in Jenkins would have been the same as that in Slater.
56. In this context, the first defendant identifies a statutory provision, namely s. 701 of the Taxes Consolidation Act, 1997 (which has been set out above), to make the case that the testator should be deemed to have acquired his Kerry Group plc shares at the time he acquired his Kerry Co-Operative shares and, thus, to have been in possession of them at the time he executed his will. In my view, there are two flaws in this argument. Firstly, taking the argument at its height, even if the testator were deemed to have been in possession of Kerry Group plc shares in 1990, this would not necessarily have the effect of making a gift of Kerry Co-Operative shares apply to Kerry Group shares. The statutory provision in Jenkins did more than simply deem railway shares to have been acquired at the time harbour shares were actually acquired by shareholders. It provided that after the date of the transfer every reference to harbour shares was to be read as if it were a reference to railway shares in every type of document imaginable and for all purposes. The effect of this provision was to ensure that an express gift of the original harbour shares was to be read as if it were a gift of the substituted railway shares. Section 701(4) does not purport to and does not have this effect.
57. I acknowledge that this argument was made in circumstances where the first defendant also contended that the extrinsic evidence showed the testator’s intention to have been that he should inherit all of the shares. That argument was, at least in part, designed to meet the second defendant’s argument that the only relevant date as regards the testator’s intention was the date he made his will and that as he did not own Kerry Group plc shares on that date he could not have had any specific intention as regards them. It is very much open to question whether a testator can be held to have had a specific testamentary intention as regards assets which he is deemed to have owned on the date of his will but did not actually own and which he does not expressly mention in his will. However, it is unnecessary to determine this question in circumstances where I have held that the evidence available to the court was not sufficient to enable me to conclude that the testator had an intention to leave his Kerry Group plc shares to the first defendant.
58. Secondly, and more fundamentally, the provisions of s. 701(4) are expressed to apply for the purposes of capital gains tax. In effect, an artificial construct is put in place to ensure that the type of share exchange undertaken by Kerry Co-Operative would not have unintended tax consequences for either the co-operative or its shareholders. There is no basis for treating a statutory provision, the terms of which limit its application to a specific purpose, as applying more generally in order to achieve a different purpose. For these reasons s.701(4) is not analogous to the statutory provision in issue in Jenkins.
59. This still leaves an issue as to whether, notwithstanding the non-applicability of Jenkins to the facts of this case, the court should nonetheless conclude that the gift of Kerry Co-operative shares is effective to pass Kerry Group plc shares to the first defendant. It is indisputably the case that the share exchanges (as distinct from the rule changes) took place without any input on the part of the testator such that he effectively had no choice in the cancellation of his Kerry Co-Operative shares nor in the issuing to him of Kerry Group plc shares. I do not accept the second defendant’s characterisation of the testator having “allowed” this to happen as it suggests far greater agency over the transactions than any individual member of the co-operative actually had. Of course, it does not follow that the testator did not support the changes which left him a wealthy man.
60. Does the fact that the testator had no personal control over the changes make a legal difference? Historically it would have as regards the doctrine of ademption at the time when it was necessary to show a presumed intention on the part of the testator that the gift would no longer be operative. However, that is no longer the position and a change effected either by statute or by the act of a company which alters an investment so that it can no longer be said to be substantially the same thing – albeit in a different form or under a different name – may cause a gift to fail. The test in Oakes v Oakes can be seen as a two part test – the thing must be substantially the same and the change must not be one which the testator has brought about through his own choice or action. The fact that a testator did not bring about the change himself is not sufficient to allow the gift of an investment to be traced into its altered form unless it is also shown that the thing remains substantially the same.
61. The first defendant posited a number of scenarios which it was suggested showed that notwithstanding the legal distinction between the two entities they were in fact interchangeable in this context. Firstly, if the testator had made a gift of his “Kerry” shares, this would have been sufficient to ensure that both passed to the first defendant. I agree but not because the two are interchangeable; rather the description is broad enough to cover both. Secondly, it was contended that if the process of Kerry Co-Operative shares being exchanged for Kerry Group plc shares had run to a completion so that at the time of his death the testator held only Kerry Group plc shares, then by analogy with the misdescription cases discussed above, the gift of the Kerry Co-Operative shares would be interpreted so as to pass the Kerry Group plc shares. I am not convinced that this is correct. There is a distinction, evident from O’Connell v Bank of Ireland, between a misdescription in and an omission from a will. The testator clearly intended when drawing up his will to leave his Kerry Co-Operative shares to the first defendant. There was no misdescription involved. The substitution cases discussed in this section of the judgment cover a range of scenarios where some or all of the testator’s original holding in an investment is changed. As far as I can ascertain, the outcome of the cases has never depended on the extent – in the sense of the quantity – of the original investment which had been changed. Instead the outcome of those cases depended on the extent to which the changed thing remains substantially the same as the original, coupled with the extent to which the testator can be said to have deliberately brought about the change.
62. In this case the testator was not responsible for the decisions and actions which resulted in his Kerry Co-Operative shares being exchanged for Kerry Group plc shares. Of itself this is not enough to allow the court to treat the Kerry Co-Operative shares as being substituted by the Kerry Group plc shares. Whilst the history of Kerry Group plc is very much intertwined with Kerry Co-Operative, the two are distinct entities with different legal structures and carry on different businesses. Significantly, Kerry Co-Operative continues to exist as a separate legal entity. It has neither been changed into nor absorbed by Kerry Group plc. It is not possible to say that notwithstanding the exchange, the testator’s shareholding in Kerry Group plc remains the same thing as his shareholding in Kerry Co-Operative. The change is more than one of form or name; it is one of substance.
Conclusions
63. For the reasons set out in this judgment, I am unable to conclude that there is a sound legal basis for treating the gift to the first defendant of the testator’s Kerry Co-Operative shares as carrying with it a gift of the testator’s Kerry Group plc shares which the testator did not own at the time he made his will. Consequently, I will answer the questions posed in the special summons as follows:-
(a) The gift of the Kerry Co-Operative shares to Thomas O’Connell does not include the shareholding the deceased held in Kerry Group plc on the date of his death; and
(b) the deceased’s shareholding in the Kerry Group plc forms part of the residue of his estate.
Shannon v Shannon
[2019] IEHC 400 (12 April 2019)
JUDGMENT of Mr. Justice MacGrath delivered on the 12th day of April, 2019.
Background
1. John Shannon died testate on 23rd March, 2013. Grant of probate issued from the District Probate Registry at Cork on 22nd August, 2017 to the plaintiff, the deceased’s nephew and the executor of his estate. The defendant is a beneficiary under the will of the deceased and is described as a friend, but of no relation to him.
2. At the date of his death, the deceased was the registered owner of lands and premises comprised in two adjoining folios – Folio 22769 of the Register of Freeholders County of Cork situate in the townland of Glanlough, Carbery West (West Division) in the County of Cork, and Folio 60662 of the Register of Freeholders County of Cork situate in the townland of Glanlough, Carbery West (West Divison) in the County of Cork. The testator’s real estate comprised of the lands in the two folios, and it seems, a share in adjoining commonage. His personal estate consisted of bank accounts, livestock, machinery and farm entitlements.
The will
3. By his last will and testament executed on 22nd August, 2011 the testator made the following provision:-
“I, JOHN SHANNON of Moulamill, Gortalassa, Bantry in the County of Cork, Bachelor, declare this to be my last Will and Testament and I hereby revoke all former Wills and testamentary dispositions at any time heretofore made by me.
I APPOINT my nephew Andrew Shannon as sole Executor of this my last Will and Testament and I direct him to pay all my just debts, funeral and testamentary expenses as soon as possible after the date of my death.
I GIVE, DEVISE AND BEQUEATH my dwellinghouse and farm of lands at Moulamill with stock and contents and farm entitlements to my friend Henry Shannon, Brahalish for his own use absolutely.
All the rest, residue and remainder of my property, both real and personal, and wheresoever situate I GIVE, DEVISE AND BEQUEATH to my nephew ANDREW SHANNON for his own use absolutely.
IN WITNESS WHEREOF I have hereunto set my hand to this my last Will and Testament this 22nd day of August Two Thousand and Eleven.”
4. A dispute has arisen as to the proper construction of the specific devise of lands in the will and whether it includes the lands and premises comprised in Folio 22769 only, or the lands and premises comprised in Folio 60662 only, or the lands and premises comprised in both folios.
The Questions
5. The plaintiff seeks a determination of the following questions which it is stated arise on the construction of the will:-
(a) Does the specific devise and bequest to the defendant comprise the real property of the testator comprised in Folio 22769 County Cork only or that comprised in both Folio 22769 County Cork and Folio 60662 County Cork?
(b) Is the specific devise and bequest to the defendant in the will void for uncertainty?
6. The case came before the court by way of notice of motion date 5th November, 2018, in which the plaintiff sought an order pursuant to the inherent jurisdiction of the court for directions as to the manner of trial. The plaintiff further sought an order pursuant to O. 39, r. 4 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court directing that evidence be adduced viva voce from the witnesses intended to be called at the hearing of this action. The motion was grounded on the affidavit of Mr. Kevin O’Donovan, solicitor. The plaintiff contends that as appears from the folios, the lands comprised in each Folio 22769 are separate and distinct although adjoining.
7. The defendant has sworn two affidavits in response to the proceedings. In his first affidavit sworn on 28th March, 2018, he avers that there is no ambiguity in the will. Within the local area and the wider farming community, he states that it is well known that the deceased’s farm consisted of the lands in the two folios and a one seventh undivided share in Glanlough commonage. While the folios refer to lands at Glanlough, Moulamill is known locally as the area where the lands are situated and this address coincides with the address of the testator as stated in the will. As there is no ambiguity on the face of the will he does not believe that court intervention is required to ascertain the intentions of the testator. The deceased worked the two adjoining folios and the share in the commonage as one farm. He states that the lands were always accepted as the farm of lands at Moulamill and he is entitled to them under the will. In a further affidavit sworn on 9th July, 2018 and in response to an affidavit of Mr. Raymond Hennsessy, solicitor who drew the will, the defendant avers that the deceased did not own an outside farm and that the lands on the two folios and the commonage are inextricably linked through open gaps and gateways
8. Mr. Hennessy was engaged by the deceased to draw the will. In an affidavit sworn on 26th March, 2018, he states that the deceased attended at his office on 22nd August, 2011. Mr. Hennessy took instructions and prepared an attendance note which he exhibited to his affidavit. The deceased’s name and address is recorded in the attendance notes as ” John Shannon, Moulamill, Gortlassa, Bantry “. The attendance note then records as follows:-
“Client called this morning to say he wants to change his will.
He said he wishes to appoint his nephew Andrew as his sole executor.
He wants to leave his farm and dwelling house at Brahalish to his friend and neighbour Henry Shannon who is not related to client in any way.
He wants to leave the residue of his estate to his nephew Andrew Shannon.
I have pointed out to client that Henry with have CAT to pay whenever he takes the inheritance and he is no relation of client.
Client signed the new will in presence of Anne and I.”
9. Mr. Hennessy avers that the deceased’s instructions were that his principal residence, and the farm folio upon which it was situate, would form part of the residue of his estate and pass to his nephew, the plaintiff. He did not believe that the deceased intended to devise and bequeath what he describes as both of his dwelling houses and both of his farms to Henry Shannon, the defendant.
10. The dwelling house of the deceased in which he resided at the time of the will and at the time of his death, is situate on Folio 22769. A semi derelict house, uninhabited for in excess of 30 years, is situate on Folio 60662. The last person to reside there was Richard Shannon, who died in 1986. This uninhabited dwelling house is and was known as ” Dick’s Place”.
11. Given the delays in the administration of the estate, the defendant issued proceedings against the plaintiff in the Circuit Court seeking an order for the administration of the estate and/or in the alternative, an order removing the plaintiff as executor of the estate. The court is not concerned with these proceedings.
12. A notice for particulars was raised by the defendant on 12th April, 2018. Details were sought of all farm accounts of the deceased for a five-year period, and clarification was sought as to what was meant by “both of his dwelling houses ” as averred to in Mr. Hennessy’s affidavit. A reply issued on 20th April, 2018 stating that farm accounts had not been filed for many years. The deceased’s income was from ” basic payment entitlements “. It was confirmed that the dwelling house in which he resided prior to his death was on Folio 22769.
13. Mr. Declan Daly, engineer, in an affidavit sworn on 26th November, 2018, and to which he exhibited maps, plans and photographs, gave evidence as to the physical condition and lay out of the deceased’s lands. He states that Moulamill is a derivative of Mautimile, which is a subtownland of Glanlough and has no defined boundaries.
14. Mr. Padraig Murray, also an engineer, in an affidavit sworn on 6th December, 2018, exhibits photographs including satellite photographs of the land. He states that a new roadway has been excavated on the lands linking what he describes as the two farmyards. He also avers that the satellite images show no evidence of a connection between the properties although there is evidence of a track leading from Folio 60662 to the commonage. He describes a number of different entrances and the import of his evidence is that, apart from that brought about by recent works, there is no physical connection between the two folios. He does not believe that there was a determined effort to amalgamate the two folios into one farm.
15. The plaintiff in an affidavit sworn on 5th December, 2018 avers that he had consistent and regular contact with his uncle throughout his lifetime. He is firmly of the view that for some years prior to the deceased’s death the properties ” remained both standalone …”. He identifies gaps in hedges or fences which facilitated ease of access for the occupant between both premises. He cared for his late uncle’s livestock for many years prior to his death. Further, as personal representative of the deceased, he states that he did not authorise any construction works or the new roadway on the property.
16. The defendant objected to the nature of the application brought before the court and claimed that it was for the court to decide, after full hearing, whether in the first instance there is any ambiguity on the face of the will, Only if an ambiguity is found is extrinsic evidence admissible to aid in the construction of the will.
17. Having considered the application, the evidence adduced by way of affidavit in support of the application and the submission of the parties, it was noted that in a number of authorities to which reference was made, the courts had the benefit of oral evidence, introduced at least on a de bene esse basis. In a preliminary ruling delivered on the 13th December, 2018, this court determined that, at least on that basis and in the interest of justice, it should hear such oral evidence of the parties which they contend support their respective positions.
18. At the adjourned hearing oral evidence was given by Mr. Hennessy of the deceased having made previous wills with him. His recollection was largely in line with, and guided by the contents of his attendance note. He believed that although the attendance note referred to Brahalish, the reason why the property was described in the will as being at Moulamill was probably because his secretary who would have seen the address of the deceased on the attendance note, typed Moulamill instead of Brahalish. He believes that Mr. Shannon waited in the waiting room while the will was being drafted by his secretary. It was his understanding and recollection that it was the intention to the testator to leave an outside farm to the plaintiff.
19. Under cross-examination, Mr. Hennessy accepted that he did not check the folios but stated that this was not an exercise he would perform when drawing a will. He stated his belief that the description of the lands being at Brahalish is something that the testator must have told him as he would not have made this up. He understood Brahalish to be a separate dwelling. He believed that there was nothing unusual about the use of the words ” stock and farm entitlements “. He thought that perhaps his secretary may have inserted this into the will. It was his normal practice to have a testator read the draft will while in the waiting room and to thereafter sign it in the presence of the necessary witnesses. Mr. Hennessey was unaware that the plaintiff did not have land at Brahalish but also clarified that he was unaware of the specific locations of lands either at Moulamill or Brahalish.
20. Mr. Murphy, engineer, also gave evidence largely consistent with the contents of the affidavit sworn by him on the 6th December, 2018. He described the lands by reference to various maps, photographs and folio numbers. He gave evidence in relation to the commonage, the location of the houses and the recent construction of a road between the lands on the two folios in recent times. The surface of the access road from the main public road to Dick’s Place, was of tar and chip. Mr. Murphy was unsure whether this was a public or private road. It is clear from photographs produced by him that the road became overgrown due to lack of use and maintenance. A number of gates and entrances into the lands on either side of that roadway were identified and he described new gaps in the fence, and a newly laid water pipe. An electric line of recent origin also appears to have been put in place. He did not observe any particular track onto the commonage from Dick’s Place nor did he observe significant connections between the two farms. With regard to the farming enterprise, he believed the land may have been underutilised and was stocked by no more than 11 cows and that the lands would not have been farmed jointly. While it was possible for animals to move between the lands through a gap, machinery would not be able to pass through. Nevertheless, Mr. Murphy could not give definitive evidence as to the user of the lands and as to whether the late Mr. Shannon used or did not use the lands on Dick’s Place. His evidence was confined to what he saw in 2018, the testator having died in 2013. He accepted that the residence on Dick’s Place was derelict and that the lands in both folios were owned and held by the deceased for over 30 years.
21. The plaintiff gave evidence. He previously lived in Brahalish but now lives in Rossmore. He is a farmer in a modest way and also a sales representative. The defendant resides near him. The testator was aged approximately 70 years when he died. He was a bachelor who lived alone and was engaged in farming in a small way. The deceased had diabetes and some mental health issues although these were not expanded upon. Dick’s Place had been the property of Dick and Lilly Shannon who were related to his father. Mr. Shannon also gave evidence of putting cattle on the lands in Dick’s Place as the deceased did not farm the land to any great extent. While one might access the two properties through the fields, the deceased used the roadway when driving his tractor.
22. Mr. Shannon, the plaintiff, also gave evidence that the lands were separately valued for estate purposes as though they were standalone properties. He cared for livestock on the lands following the death of the deceased until a padlock was placed across the lands when the new road was constructed. Further, while there is a laneway between the land he does not believe that there was any physical connection between them.
23. Under cross-examination, he accepted that farm accounts had not been produced to the court but stated that the deceased was ” not good at that “. He believes that the testator understood and viewed the lands as being separate because one of the properties was known as Dick’s Place. On questioning regarding the deceased’s farm entitlements, he stated that did he did not believe that these entitlements attached to the lands at Dick’s Place. He accepted that he was not an expert on, nor was he purporting to give any specific and particular evidence on farm entitlements, but stated that he attempted to maintain the entitlements. While he accepted that it may be fair to say that the deceased treated the lands as one unit, nevertheless, when the deceased was using the property he wintered the cattle on what was described as the south side of the hill, whereas he, the plaintiff, brought cattle to what he described as Dick’s Place. Mr. Shannon was also questioned on the fact that in his will, the deceased did not distinguish between the two folios and bequeathed stock and content without differentiation. Nevertheless, he believed that the deceased did not wish a situation to develop whereby the defendant would receive the lands in both folios.
24. Oral evidence was given on behalf of the defendant by Mr. Declan Daly, engineer, in line with the evidence on affidavit submitted by him. He described a number of gates, gaps and tracks in and over the lands, some of which went directly onto the commonage. He confirmed his evidence on affidavit that Moulamill is not a townland and that its name is derived from Mautimile which is a sub-townland of Glanlough and has no defined boundaries. He also gave evidence of at least four access points between the property in Folio 22769, and either the commonage or onto property in Folio 60662, Dick’s Place.
25. The defendant did not give oral evidence.
Submissions
26. Submissions were made by the parties on the initial application and at the resumed hearing. The following is a synopsis of the main arguments made on both occasions. The parties refer to leading authorities such as Rowe v. Law [1978] I.R. 55 and O’Connell v. Bank of Ireland [1998] 2 IR 596 which I will address later in this decision.
27. Mr. O’Mahony S.C. submits on behalf of the plaintiff that the terms of the will are ambiguous and that in the circumstances extrinsic evidence is required to understand the intentions of the testator, that his intention was to devise the property in Folio 22769 to the plaintiff and that the ambiguous terms of the will should be construed to give effect to that intention. In the alternative, it is submitted that the specific devise and bequest to the defendant comprises of the real property of the testator in Folio 22769 only and that his intention was that the real property in Dick’s Place be devised to the plaintiff as a residuary legatee.
28. It is contended that the ambiguity may arise from the terms of the will or from its surrounding circumstances. Reliance is placed on a number of authorities decided prior to the enactment of s. 90 of the Succession Act, 1965, as illustrating that extrinsic evidence was admissible in certain limited circumstances. Thus, in Re Julian [1950] I.R. 57, Kingsmill Moore J. stated that it may be necessary to have regard to extrinsic evidence in certain circumstances. Mr. O’Mahony S.C. relies on the following dicta of Kingsmill Moore J:-
“In two cases only, as far as I know or have been able to ascertain, is such evidence allowed; to rebut or support certain bare legal presumptions and to determine which of several persons or things are comprised in a truly equivocal description, that is to say, a description which applies accurately to two different persons or objects.” (Emphasis supplied)
Kingsmill Moore J. cited Doe d. Gord v. Needs (1836) 150 E.R. 698 as authority for the proposition that where a description may have accurately referred to either of two potential but different beneficiaries, evidence of the testators’ intention was admitted.
It is to be observed that Re Julian preceded the enactment of s.90 of the Succession Act, 1965. In O’Connell the position was summarised as:-
“The detailed requirements of the legislature as to the execution, attestation and publication of wills could not, in general, be circumvented by allowing parol evidence to be admitted as to the intentions of the testator, save in the limited circumstances to which I have referred. However, the strict application of those principles by the courts led on occasions to perplexing results, of which Re: Julian itself is a remarkable example”.
29. Counsel also relies on T he matter of Tomlinson (deceased), Lyndsey and Wynne v. Tomlinson (Carroll J., 13th February, 1996). There, a testator made a bequest to the National Society for the Prevention of Cruelty to Animals (Dogs and Cats) 1, Grand Canal Quay, Dublin. No body precisely matched that description. There were two bodies, the Dublin Society for the Prevention of Cruelty to Animals, and the Irish Society for the Prevention of Cruelty to Animals, for whom the bequest could equally have been intended. Carroll J. found that an ambiguity had arisen which required the admission of extrinsic evidence. Based on evidence as to the testatrix’s pursuits while alive, Carroll J. was satisfied that the former body was intended to benefit. The deceased had been a volunteer for that society and the second – named body was an administrative one not involved in active field work.
30. Counsel submits that in this case the deceased, whose address is described in the will as ” Moulamill, Gortalassa, Bantry ” devised only one dwelling house when he owned two and that only one of the folios of lands was the subject of the relevant clause in the will. This is consistent with the residuary clause which provided that the remainder of his property, both real and personal, was to go to the deceased’s nephew, the plaintiff. It is submitted that as the deceased had no other real property, the residuary clause would be meaningless if the devise to the defendant was of all lands in both folios. It is submitted such contention is fortified by the fact that the dwelling house and farmlands are described as being at Moulamill. This does not correspond with the description of the lands in the two folios, which describes land at Glanlough. The fact that the two pieces of land were acquired at different times and historically had been separate holdings, on which there were two separate dwellings, and occupied by two separate families, also supports this proposition. It is argued that the fact that a dwelling house may be uninhabited or semi-derelict (as is the case on Dick’s Place), does not mean that it is not a dwelling house.
31. Both folios are located within the same townland and each contains farmlands and a dwelling house. Thus, the specific devise could accurately describe the lands and premises contained in either folio.
32. It is further submitted that such analysis is supported by the evidence of the engineer retained by the plaintiff, Mr. Murphy, as to the separate and distinct nature of the landholdings in the two folios. There was no determined effort, as a matter of fact, to amalgamate the two folios into a single farm. Each folio had separate entrances with separate dwelling houses, yards and holding pens.
33. The various locations used to describe the lands add to the ambiguity, thus the lands are described in the specific devise as being at Moulamill. However, the lands comprised in the two folios are in fact located at Glanlough. This confusion, counsel submits, is emphasised when regard is had to the solicitors’ attendance docket, which initially refers to the testator being from Moulamill but then records the testator’s wish to leave his farm and dwelling house at Brahalish to the defendant. It is submitted that the series of different place names creates considerable ambiguity and that the combination of the intrinsic terms of the will and the extrinsic evidence admitted, give rise to an ambiguity which the court must resolve by looking at all the evidence in order to construe the testator’s intention. In this regard, it is submitted that Mr. Hennessy is the only independent witness who gave evidence directly as to the intention of the testator. Mr. Hennessy’s understanding is that the deceased did not intend to bequeath both dwelling houses and both farms to the defendant. Counsel points out that where an ambiguity has been found in a will, the court may examine the evidence of the person who drafted it to ascertain the testator’s intention. Evidence of the solicitor who drafted the will was admitted in Lynch and Nixon v. Burke and ors [1999] IEHC 22 for the purpose of assisting in ascertaining the intentions of the testator and to aid in the construction of and explaining the contradictions in the will. There, McCracken J. concluded, however, that the court would still have to look at the terms of the will to see if there was a construction available which was consistent with the intention of the testator. He acknowledged that extrinsic evidence could not be used for the purposes of rewriting the will. McCracken J. observed that he must take the intention of the testator as had been shown to him and to ascertain whether there was a construction of the will consistent with that intention. Thus, it is submitted that having ascertained the intentions of the testator through the evidence of Mr. Hennessy, there is a construction of the will that is consistent with that intention. Mr. O’Mahony acknowledges that if the specific devise had bequeathed both the testator’s dwelling houses and lands to the defendant, there would be no construction of the will which would give effect to the intentions of the testator as evidenced by Mr. Hennessy. Similarly, if the specific devise had referred to a principal residence or place of residence, this would also have been inconsistent with Mr. Hennessy’s evidence and the terms of the will would prevail. But in this case it is submitted that the will devises only one dwelling house, which is not particularly specified, together with farmlands; and devises the rest and residue of the property both real and personal to the plaintiff. The specific devise and bequest relates to the dwelling house and lands in Folio 60662, and it is submitted that the dwelling house in which the testator resided and the lands in that folio form part of the residue of the testator’s estate and passed to the plaintiff. In the alternative, it is submitted that the specific devise and bequest to the defendant comprised the property of the testator in Folio 22769 and that the deceased’s intention was that the property comprising Folio 60662 be devised to the plaintiff as a residuary legatee.
34. In the further alternative, the plaintiff argues that should the court not be in a position to interpret the specific devise and bequest in a manner outlined above, the devise in the will is void for uncertainty as it is impossible to identify to which folio it relates. Mr. O’Mahony S.C. submits that while certain of the cited cases concern identities of devisees, similar principles apply to an ambiguity concerning the nature and extent of a gift.
35. Submissions were made on behalf of the defendant by Ms. Lankford S.C. and Mr. Bracken S.C. It is contended that on the evidence, the deceased used the lands in both folios as one holding and that the evidence of the plaintiff confirms that animals moved from one folio to the other. No documentary evidence was produced to the court suggesting that there are or were two distinctive farms, whether by way of treatment as separate entities from accounting or tax perspectives, or by reference to any other means of distinguishing one part of the farm from the other. The deceased drove a small tractor which was easily navigable between the various fields on both folios and it is submitted that he used the folios as one farm, having acquired both within a short period of time. Folio 60662 was acquired on the 22nd November, 1982 and Folio 22769 was acquired on the 1st February, 1983.
36. It is submitted that there is no ambiguity on the face of the will and therefore extrinsic evidence should not be admitted. Reliance is placed in this regard on the decision of Carroll J. in Howell v. Howell [1992] 1 I.R. 290 and the approach to be adopted in construing a will, the first step of which is to read the will as a whole.
37. Counsel submits that there is no ambiguity or contradiction on the face of the will, and it is clear that the deceased gave his farm of lands, consisting of the lands in the two folios, to the defendant. The use of the words ” farm of lands “, if anything, is more consistent with an unambiguous description of all his lands, than might be the case if specific reference was made to the folios. It is also submitted that it is not unusual that wills do not specifically refer to folio numbers. It is contended that the plaintiff is attempting to adduce extrinsic evidence to introduce an ambiguity into what is otherwise a clearly expressed and unambiguous will. Whatever may have been any other person’s understanding of the testator’s intention, the testator did not misunderstand what he was doing and there was no evidence that he was under any such misapprehension. Counsel further submits that an impermissible attempt is being made to rely upon a standard residuary clause to create an ambiguity and that such a clause is standard.
38. Ms. Lankford S.C. relies on two decisions in particular. In re Bovill [1957] N.I. 58, the testator’s will contained the following words – ” I leave devise and bequeath my farm on which I reside together with all stock, crop, farming implements and household furniture to my wife Eleanor absolutely.” He left the residue of his estate to his four children in equal shares. The question for decision was whether the gift of the ” farm on which I reside ” applied only to the holding on which the dwelling-house was situated or whether it carried the three holdings which he had worked as one farm. The holdings were registered on separate folios and were contiguous except for a small portion of one which was separated from the rest of the land on the same folio. McVeigh J. stated:-
“The only question, as far as I am concerned, is whether there are any authorities which would prevent me from giving effect to that opinion, but the cases cited have not given me any reason to hesitate. Whilst there is a residuary clause in the present will which distinguishes it some extent from the will considered in McGonigle v. McGonigle ([1910] 1 I.R. 297), nevertheless that was a case in which it was held that two separate holdings passed under the word ‘farm.’ The case cited by Mr. Porter, In re Willis ([1911] 2 Ch. 563), is helpful on the meaning of the words ‘on which I now reside.’ Those words were held not to be a vital and essential part of the description having the effect of cutting down the generality of earlier words.
I have no doubt that when the testator made this will he clearly intended to give his wife the whole of the land, the several plots of which are contiguous (except for the small portions mentioned above) and all of which he carried on as one farm. The view that he intended to give the entirety as a going concern is reinforced when one considers the following words of the will ‘with all stock, crop, farming implements.’ He did not divide up those items and it is quite clear to my mind that he never considered carving up the land which he had always regarded as one unit. Accordingly, I hold that all these lands pass to the testator’s wife under this bequest.”
McVeigh J. also ruled inadmissible evidence of the person who drew the will, an auctioneer, which supported this interpretation.
39. In McGonigle v. McGonigle [1910] 1 I.R. 297, a testator by his will provided as follows:-
“I dispose of my effects in the following manner: I bequeath to my brother Peter my house and my farm, subject to the obligation that he is to pay my wife the sum of £50.”
The will had been drawn up by the parish priest. The testator had in fact two holdings which were close together but not adjoining. They were in different townlands approximately a quarter of a mile apart, and were held under different contracts of tenancy but with the same landlord. On one of the holdings there was a house in which the testator resided at the time of his death. There was no house on the other holding. Both holdings were worked together. Barton J. refused to admit the evidence of the priest as to the oral explanation given by the testator of what he meant by the word ” farm ” and held that it included the two holdings, that the testator was dealing with ” facts and things” and not with technical definitions. It was evident to the court that the testator included in the expression ” effects ” his lands and that he meant to dispose of them all and not die intestate as to any of them:-
“At all events he was disposing of his lands as part of his effects, and intended to dispose of all his effects, including his lands.”
He continued as follows, at p. 300:-
“When he disposed of his farm, he was, I think, referring to the land which he farmed and used as one farm for farming purposes, although held under two separate contracts. I have come across farms as to which, when title had to be made, it was found that part was held in fee, part under leased, and part from year to year. I dare say that there are many farms, parts of which are held under different titles or contracts. Yet the whole, if worked as one farm, may be regarded and described as one farm
Looking at the language of the will, I construe the words “my house and farm” as meaning the house which the testator lived in, and the lands which he used and worked as one farm”
40. It is submitted that a plain reading of the will does not admit of ambiguity. The word ” farm ” may consist of two holdings. This has been held in McGonigle v. McGonigle where it was also held that extrinsic evidence as to an oral statement made by the testator at the time of the execution of the will as to what he understood the word ” farm ” should mean was not admissible. Reliance is also placed on Rowe v. Law and In re Bovill . When construed properly as “a piece of English “, the defendant submits that it is clear that the testator devised his farm at Moulamill to the defendant. The farm consists of the land contained in the two folios.
41. It is also to be observed and noted that counsel for the plaintiff invited the court to have regard for the fact that the term ” effects ” had, at that time, a particular meaning which included freehold as well as personal estate. The land was held under a contract of tenancy, therefore was leasehold which at that time was considered personalty, the devolution of which differed to real property. Further, there does not appear to have been a residuary clause and the court found that there was an intention to dispose of all effects including his land. Mr. O’Mahony S.C. emphasises that each case must be determined on a fact specific basis.
The Succession Act, 1965 and rules of construction
42. The legal principles applicable to the construction of a will were addressed in this court’s preliminary judgment on the directions motion and are to a large extent repeated here.
43. S. 90 of the Succession Act 1965 provides as follows:-
“Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.”
44. As described in Rowe v Law , the effect of the legislation is that extrinsic evidence is not admissible simply to show the intention of the testator, it can only be admitted if it also assists in the construction or explanation of a contradiction in a will.
45. In Howell v. Howell Carroll J. accepted as a helpful summary of the approach to be adopted in the interpretation of a will, the principles enunciated in H eron v Ulster Bank Ltd [1944] N.I. 44 at p. 52 by Lowry L.C.J. and which have since been described by Keating, Keating on Probate (5th ed., Roundhall, 2015) at para 27.05 et seq as the Lowry principles. These principles have also been applied in a number of decisions in this jurisdiction including Corrigan v Corrigan [2007] IEHC 367 and McGuinness v Sherry [2008] IEHC 134. They are as follows:-
“(1) Read the immediately relevant portion of the Will as a piece of English and decide, if possible, what it means.
(2) Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
(3) If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
(4) One may at this stage have resort to rules of construction, where applicable, and aids, such as the presumption of early vesting and the presumptions against intestacy and in favour of equality.
(5) Then see whether any rule of law prevents a particular interpretation from being adopted.
(6) Finally, once the disputed passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar words, rarely as binding precedents, but more often as examples of how judicial minds nurtured in the same discipline have interpreted words in similar contexts.”
Decision
46. In O’Connell v. Bank of Ireland, Keane J. observed that the general principle was and is that, in construing a will, the object of the court is to ascertain the expressed intention of the testator. The law, he noted, was thus stated by Simon L.C. in Perrin v. Morgan [1943] AC 399 at p. 406:-
“… the fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case – what are the ‘expressed intentions’ of the testator.”
47. As McGovern J. observed in Corrigan the court considers the will by placing itself in the position of the testator sitting in his armchair shortly before his death to see what he was setting out to achieve. He described at para. 17 the applicable principles as follows:-
“In considering the authorities on this subject it seems that the following principles apply:-
(i) The court will strive as far as it can to give effect to the intention of the testator insofar as this can ascertained from the will. In limited circumstances the court is permitted to rectify a will to save it from bad drafting. See Curtin v. O’Mahony [1991] 2 I.R. 566 .
(ii) The court considers the will by placing itself in the position of the testator sitting in his armchair shortly before his death to see what he was setting out to achieve.
(iii) As a general rule the court will give legal or technical words used in a will their legal or technical meaning.
(iv) The guidelines suggested by Lowry L.C.J. in Heron v. Ulster Bank Limited [1974] N.I. 44 at 52 were approved and adopted by Carroll J. in Howell v. Howell [1992] 1 I.R. 290 .” (which he then reproduced)
48. In Rowe v. Law [1978] I.R. 55, Henchy J. speaking for the majority, interpreted s. 90 as permitting the introduction of extrinsic evidence if it met a dual requirement of showing the intention of the testator and in assisting in the construction or explanation of any contradiction in a will.
49. The principles in Rowe were applied by the Supreme Court in O’Connell v. Bank of Ireland . A testatrix had bequeathed the contents of her house to the plaintiff. There was no reference in the will to the house itself but it contained a residuary clause. The plaintiffs contended that it was the intention of the testatrix to leave to them not only the contents, but also the house. They sought a declaration that they were beneficially entitled to the house. Although evidence was adduced at the trial that the testatrix intended to leave the plaintiffs both the house and its contents, in the High Court, Barron J. held that extrinsic evidence of intention was not admissible unless there was some ambiguity or contradiction in the will. On the evidence, he was satisfied that it was the intention of the testatrix to leave the contents and the house to the plaintiffs. Nevertheless, as the terms of the will were clear, the plaintiffs were not entitled to an equitable interest in the house. The Supreme Court dismissed the appeal and held that as the will did not disclose any contradiction or ambiguity on its face, extrinsic evidence could not be adduced as to the testator’s intention. Barron J. stated at p. 600:-
“Extrinsic evidence has always been admissible to prove the factum of a will but not its contents. The present case is particularly hard for the plaintiffs since I preferred the evidence of the witnesses for the plaintiffs to that of the solicitor who prepared the will. While it may have been possible that the deceased was so concerned to ensure that the contents were left to the plaintiffs as well as the house as to forget to mention the house, I cannot accept that the express instructions which she gave her solicitor did not include reference to either her house or its contents. Nor can I accept that she only dealt with the contents because she communicated an uncertainty to her solicitor who elicited from her a wish to leave the plaintiffs an item from her home. I am quite satisfied on the evidence which I have heard that the testatrix intended to leave the plaintiffs the house as well as the contents thereof. I fully appreciate Mrs. Healy’s worry that her insistence to the deceased to be sure to leave the contents as well as the house has been the cause of what occurred.”
In the Supreme Court it was argued that the decision in Rowe v. Law was wrong in law and should be overruled. Having analysed the caselaw prior to the implementation of s. 90 of the Act of 1965, Keane J. followed Rowe v. Law and stated at p. 612 that any other construction of s. 90 would have led to a radical and far reaching change in the law ” which it cannot have been the intention of the Oireachtas to bring about by such, at best, opaque and ambiguous language “. If the plaintiffs’ submissions were well founded, then the will of a deceased person might consist of various statements, both written and oral, made during the course of his or her lifetime to the extent that they might have contradicted the terms of the will of the deceased. Keane J. stated that such far reaching conclusion was neither supported by the language of s. 90 nor by policy. He also referred to the provisions of s. 99 of the Act of 1965, which provide:-
“If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which a devise or bequest will be operated, will be preferred.”
Reference has been made to this section during the course of argument in this case, but as Keane J. noted this provision is clearly intended to ensure that where the wording of the will allows for more than one construction, it should be interpreted, if possible, so as to avoid an intestacy arising. This is consistent with the presumption against intestacy. The other members of the court agreed with Keane J.
50. On the basis of such sentiments, it is clear that the Court cannot be concerned with evidence of the intention of the testator, no matter how meritorious the case being made in this regard, where the will is unambiguous on its face. Therefore, the first and primary question which must be addressed is whether this will is ambiguous or contradictory on its face. And central to this analysis, its seems to me, is to first read the will as a piece of English and in accordance with the Lowry principles as applied in Howell v Howell , to decide, if possible what it means.
51. The testator’s address is described as Moulamill, Gortalassa, Bantry. The court has heard evidence regarding the correct name of the townland where the property is located, and while the last two geographical descriptions in the testator’s address are not expressly repeated in the operative part of the will relative to the specific bequest and devise, it cannot be seriously contended, that his residential address as described in the first part of the will is anything other than that described as his dwelling house and farm of lands at Moulamill. No distinction is made in relation to the stock and farm entitlements or as to whether they are referable to the lands in either or both folios. It is clearly and unambiguously stated that the devise and bequest include the stock, contents and farm entitlements. No attempt has been made to deal separately with them or to view them as attaching to one or other parcel of lands. It is suggested that the ambiguity arises by virtue of the fact that the deceased had two dwelling houses, even though only one was occupied and that historically these were in different ownerships. Emphasis is also placed on the contents of the residuary clause, which it is suggested would be meaningless if it did not apply to one of the portions of land contained in the other folios. It is of note that certain of the plaintiff’s submissions regarding what is contended to be an ambiguity in the will, are premised on the assumption that the will refers to two separate and distinct pieces or parcels of land in the deceased’s estate.
52. I am not satisfied, that on a proper construction of the will, as a ‘ piece of English’ an ambiguity arises or that the will purports to describe and dispose of two separate and distinct pieces of property in a different manner. In so far as it may be relevant and to the extent that it is contended that the deceased owned two or more parcels on land, it is instructive to note that the will does not refer to or describe the folios nor does it say ” farm of land “, it refers to ” farm of lands “. It is clear that at the date of his death, the deceased was entitled to the lands in both folios.
53. That the residuary clause refers to real property, in my view, cannot be viewed as being inconsistent with the specific devise and bequest of the testator’s lands. Generally speaking, a residuary clause may be designed and intended to ensure, inter alia , either that remaining property of a deceased, not specifically dealt with in the will in an itemised way or otherwise, is given to a specific person or to ensure that such property, real or personal, does not fall on intestacy. Further, a will is ambulatory, it speaks from death and such a clause, it seems to me, may also be designed to capture property acquired after the making of the will and before death. I cannot see that in the circumstances prevailing in this case that the residuary clause has the effect of creating or giving rise to an ambiguity. In my view, there is nothing in this case to suggest that the residuary clause is anything but in standard form or that there is anything contained therein that might lead to a different conclusion on the interpretation of the will.
54. The deceased referred to his dwelling house and farm of lands. While it is true that no will has a sister or brother, decisions in other cases may provide limited assistance. Thus the observations of McVeigh J. in In re Bovill are of some assistance. The court had to consider whether the gift of the farm on which the deceased resided, applied only to the holding on which the dwelling house was situated or whether it carried three holdings which he had worked together as one farm. McVeigh J. concluded that the latter was the unambiguous meaning to be ascribed to the will. He noted at p. 60:-
“The view that he intended to give the entirety as a going concern is reinforced when one considers the following words of the will – “with all stock, crop, farming implements.””
The court observed that the testator did not divide up those items and was quite clear in his mind that he never considered carving up the land which he had always regarded as one unit. In that case there was a residuary clause.
55. In McGonigle v. McGonigle Barton J. stated that a bequest to the testator’s brother of his house and his farm provided a sufficient description to conclude that two holdings that were close together, but not adjoining, were transferred by the will. Barton J. noted that a testator in such circumstances is dealing with facts and things and not with technical definitions. Of some relevance in this regard, are the observations of Barton J. that:-
“When he disposed of “his farm”, he was I think referring to the land which he farmed and used as one farm for farming purposes, although held under two separate contracts”.
56. Taking into account the submissions of Mr. O’Mahony S.C., that at the time of that decision the words ” effects ” had a different and particular meaning which included freehold as well as personal estate, and noting that there was no residuary clause, nevertheless, I do not see anything in that decision which, in my view, leads to a contrary approach, interpretation or conclusion as I have come to in this case.
57. That there may have been a disused and uninhabited dwelling house on the folio of lands known as Dick’s Place, in my view, does not detract from the above interpretation of the terms of the will. It is clear that this structure is on the farm of lands at Moulamill and the fact that the description dwellinghouse in the singular is included in the will, in my view, does not create an ambiguity so as call into question the potential exclusion from the will portion of a property on which it is situated, although not used for dwelling purposes either on the date of the will or date of death. It is also instructive that the conjunctive ” and ” is employed which I believe, if anything, removes the potential for ambiguity. In my view the farm of lands must mean the lands used for farming by the deceased and, in the circumstances, these are the lands comprised in the two folios. I also believe that the evidence establishes that the late Mr. Shannon farmed the lands as one unit and it is difficult to conclude that there is any ambiguity on the face of the will in this regard.
58. Further, on the application of second of the Lowry principles, I do not see anything in the other material parts of the will which suggest a different interpretation to what I consider to be the plain meaning of the devise.
59. Even if the court was to conclude that there is an ambiguity on the face of the will, such evidence as is suggested to assist, in my view, is not sufficiently strong to lead to the conclusion contended for by the plaintiff. Although he thought the testator may have wished to leave an outside farm to the defendant, Mr. Hennessy was unaware of where the lands were and no other evidence has been given of an expressed statement or wish of the testator that the plaintiff should get the land, or portion of it, or that is what he intended. It may very well be, as Mr. Hennessy has pointed out, that it was the wish of the testator, whether expressed or not, to divide his lands between the parties. Even if such intention was established, the observations of Barron J. in O’Connell v. Bank of Ireland are relevant. Although he was satisfied on the evidence that the testatrix intended to leave the plaintiffs the house as well as the contents thereof, the will was unambiguous on its face and extrinsic evidence could not be adduced as to the testator’s intention.
60. In my view, if anything, to admit extrinsic evidence in this case may have the contrary effect of introducing ambiguity into the terms of the will where they are otherwise clear on their face.
61. Finally, it follows that I cannot accept the alternative argument that the will is void for uncertainty.
62. Despite the very able and skilful arguments made on behalf of the plaintiff by Mr O’Mahony S.C., and not without some sympathy for the plaintiff who I believe to be a man of honest endeavour, the answer to the questions posed are:-
(a) the specific devise and bequest to the defendant comprises the lands in both Folio 22769 Co. Cork and Folio 60662 Co. Cork; and
(b) no
Cases Abatement
Armstrong v Gamble
Chancery Division.
12 November 1907
[1907] 41 I.L.T.R 237
Meredith M.R.
Nov. 12, 1907
Meredith, M.R.
In my judgment a demonstrative legacy, under circumstances such as exist in the present case, is only liable to abate with, and to the same extent as, the specific legacies. It is a question of principle. Apparently the net point arising for decision in this particular case has not formed the subject of any reported decision. But it appears to me, on principle, that so far as a demonstrative legacy is payable out of a particular fund it is in its nature and essence as much a specific legacy as a specific gift of the testator’s shares in a bank would be. Now, all the dicta that Mr. Best’s industry has enabled him to collect are in favour of the view that I take, and Mr. Brown was unable to find dicta to the contrary, and certainly no decision. Lord Cranworth, in Tempest v. Tempest (7 D. M. & G., at p. 473), as I read his judgment, explains the general principle which should be applied to a case of this description. [His lordship quoted the passage referred to.] In other words, to the extent that it is payable out of a particular fund, it is, in its nature, a specific legacy. It is so far specific that it certainly will not abate with the general legacies upon a deficiency of assets, but to the extent to which it ceases to be specific— i.e., in so far as the fund fails—it becomes an ordinary general legacy and liable to abate. The observations of Kindersley, V.-C., in Mullins v. Smith (1 Drew. & S. at p. 210), which have been read by Mr. Best, appear to me to support this view. [His Lordship quoted the passage in question.] It appears to me that here the Vice-Chancellor puts specific and demonstrative legacies, so far as the fund is available, on the same footing. I think that the statement of the law in Williams on Executors (p. 1021, 9th Ed.), leaves no room for doubt that, in the view of the author, demonstrative legacies, to the extent that they are payable out of particular funds are, to use a homely phrase, in the same boat with specific legacies. Having considered the question with as much care as I could, and failing to find any decision one way or another, I fall back on what I hold to be the principle, and decide accordingly that the specific legacies and the demonstrative legacies payable out of the Great Northern Stock are liable to abate rateably. I direct that the sum mentioned by counsel be expended on a tombstone and mural tablet, and be charged in the same priority as funeral and testamentary expenses.
In re MacCarthy, Deceased
[1958] IR 311
Budd J. 311
BUDD J. :
The testatrix in this case made her will dated the 8th November, 1941, and a codicil thereto dated the 21st November, 1944. She died on the 18th August, 1953. Probate of the will and codicil was granted on the 11th November, 1953. The testatrix made a number of pecuniary legacies, some of which were charitable in their nature, and provided for the dispersal of the residue of her estate, if any. She directed that all legacies should be paid free of legacy duty. In the events that have happened there will not be any residue, but rather a deficiency of assets to meet the pecuniary bequests. The last clause of the will reads as follows: “In the event of there being insufficient assets to pay all the legacies hereinbefore bequeathed I declare that the legacies bequeathed for Masses and for charitable purposes shall not be liable to abatement.”
In the codicil the following clause appears: “I revoke the bequest in the said will contained of Five hundred pounds to William James McGrath as he has died since the date of my said Will and I also revoke the bequest of the sum of Two hundred pounds to my maid Margaret Scannell as she is not now in my employment. In lieu thereof I give and bequeath: “(a) To Nurse Thompson now residing at the Lodge, Sandycove House, Sandycove, the sum of Five hundred pounds and (b) To my god-child, Maurice Anthony McGovern of 4 Glenn Terrace, Sandycove, the sum of Two hundred pounds.”
I direct that these legacies shall be paid free of legacy duty and in all other respects I confirm my said Will.”
The first question to arise is whether, since there is a deficiency of assets, and having regard to the direction in the will that the bequests for Masses and those for charitable purposes should not abate, the two bequests in the codicil are substituted for the two revoked in the will, and should therefore be subject to the same terms and conditions as the bequests in the will. In short, are they to abate with the other non-charitable legacies?
I think that it may fairly be said that the scheme of the will is that the non-charitable legacies are not to come in and be paid until after the charitable legacies have been paid. The codicil bequeathes two legacies, and the testatrix gives reasons for revoking the two in the will, and goes on to say: “In lieu thereof I give . . .” I think that it is at least reasonable to think that the testatrix wished to subject these two legacies to the same terms and conditions as those in the will proper, but of course I must deduce the testatrix’ intentions from the words she has used in the will and codicil while applying the proper canons of construction.
Mr. McCann emphasised the use of the words “hereinbefore bequeathed” in the clause in the will itself exempting the charitable legacies from abatement and suggested that the legacies subsequently given by the codicil could not be governed by those words. I do not think that signifies very much. I think that they were the natural and indeed almost inevitable words for the testatrix to use when writing that clause. She did not know then that she was going to make a codicil and I do not think that the use of these words assists me much in the construction. The words used in the codicil,”In all other respects I confirm my will” are noteworthy, and afford some indication that she did not desire to alter the scheme of the will which favoured the charitable legacies.
The rule of construction that is applicable is that expressed in Hawkins on Wills, 2nd ed., at p. 358 as follows: “Anadded or substituted legacy is prima facie, payable out of the same funds and subject to the same incidents and conditions as the original legacy.” Several cases have been cited to me dealing with that rule of construction including Leacroft v.Maynard (1). In that case the testator in his will gave a legacy of £1,000 to a hospital payable out of real estate, which would have been void under the statutes of Mortmain. By a codicil, the testator revoked the gift to the particular hospital and “instead thereof” gave £500 to a different hospital, not mentioning the source of the fund. It was held that it was a substituted legacy subject to the same conditions and incidents as the original legacy in the will and therefore that it also infringed the statutes of Mortmain. It will be noted particularly that the donees of the gifts were different and that the amount of the gift was altered. This is the leading case on this rule of construction is there any reason why it should not be applied here? Mr. McCann relies on Chatteris v. Young (2). In that case the testator, having made certain bequests to a daughter who predeceased him, by a codicil to his will gave a legacy to his daughter’s husband, and Eldon L.C. held that it could not be regarded as a substituted legacy. The case does not assist me much because no reasons were given by the Lord Chancellor for his decision, and I think the decision must have been based on the particular circumstances of the case. The daughter had been given other bequests in the will which were not given to her husband by the codicil made after her death, and the whole surrounding circumstances may have led the Lord Chancellor to the view that an entirely new bequest was intended. Mr. McCann also relied on the observations in In re Joseph, Pain v. Joseph (1) by Cozens-Hardy M.R. who said that he had never heard of a case of a legacy being held to be a substituted legacy where the beneficiaries in the codicil were not identical with the beneficiaries in the will. But that was in fact the case in Leacroft v. Maynard (2)from which the rule of construction springs, and I find it difficult to understand the observations in the light of that fact. In In re Backhouse, Salmon v. Backhouse (3), Sargent J. cites Leacroft v. Maynard (2) with approval and says that Cozens-Hardy M.R. and Farwell J. in In re Joseph, Pain v.Joseph (1) could not be taken as dissenting from or questioning that case, and indeed he takes the decision in Leacroft v.Maynard (2) as still standing. And in my view also the law as stated in Leacroft v. Maynard (2) still stands.
On the basis of the rule of construction as stated I must look at the will and codicil as a whole to see whether these legacies should properly be regarded as substituted legacies. The general rule that “An added or substituted legacy is,prima facie, payable out of the same funds and subject to the same incidents and conditions as the original legacy”does not apply if the words used by a testator indicate a contrary intention on the part of the testator showing that legacies given in the place of other legacies were not intended to be subject to the same conditions and incidents as the original legacies. Is there such a contrary intention shown by the words used by the testator here? I cannot find one; indeed, on the contrary, the matter is quite the other way. The words used by the testatrix seem to me to indicate that she intended the gifts in the codicil to be substituted for those in the will. In the events that happened the testatrix had these two sums of money to dispose of by reason of the fact that one of the two original legatees had died and another was no longer in her employment. She actually states these facts as her reason for revoking the original legacies. Having done that, she gives the legacies in the codicil “in lieu thereof.” In my view, on the true construction of the will and codicil the testatrix intended these two new legacies to be substituted for the two original legacies in the will and accordingly the rule of construction applies and these two legacies will abate along with other non-charitable pecuniary legacies.
I must now deal with the questions as to whether the other bequests referred to in the summons are valid charitable bequests.
The first is in the following terms:
“To the Archbishop of Dublin for the time being the sum of Six hundred pounds upon trust to invest the same and invest the annual income arising therefrom in defraying wholly or partially the travelling expenses and maintenance of two or more invalid persons taking part in organised Religious Pilgrimages to the Grotto of Our Lady at Lourdes, such invalid persons to be chosen for the benefit of such income to be in equal numbers each year from the areas now represented by the Catholic Parishes of Dun Laoghaire and Glasthule.”
Now the form of words used by the testatrix is significant. She refers to “organised Religious Pilgrimages” and I have evidence before me that such organised religious pilgrimages are only permitted with the sanction and approval of the ecclesiastical authorities, and are either organised by such ecclesiastical authorities or religious organisations that are approved of by them. I have before me an affidavit from Father Carroll, the Secretary of the Dublin Diocesan Pilgrimage to Lourdes, which deals with the nature of these pilgrimages. He says that pilgrimages are encouraged by the Catholic Church and are recognised by the Church as a public manifestation of religion. Pilgrimages, he says further, are regarded as a salutary mode of penance and a form of thanksgiving. He states that Lourdes is the most frequented place of pilgrimage in the Catholic world. One of the principal objects of the pilgrimage to Lourdes is to pray for the spiritual and temporal welfare of the invalids, and care is always taken to ensure that it maintains its religious character. Various religious exercises are also performed by the pilgrims at Lourdes.
Apart from what is stated in the affidavit, I think a pilgrimage has always been regarded as a religious act. It is something done in the public eye and is, therefore, a matter of public benefit and edification. Furthermore, I have had pointed out to me the definition of a pilgrimage in the Oxford Dictionary: “A journey (usually of considerable duration) made to some sacred place as an act of religious devotion.” This gift is to aid one or two of the sick people of the two parishes mentioned to take part in these organised religious pilgrimages, and having regard to the nature of these pilgrimages, it is clearly a gift for the advancement of religion and I hold that it is a valid charitable gift.
The second gift queried is in the following terms:
“To the trustees for the time being of the Sisters of Charity of Nevers at the Asile Hospital, Lourdes, France, for the benefit of the sick in that hospital the sum of One Thousand Pounds.”
The Bishop of Lourdes, in his affidavit states that the hospital referred to is Catholic Church property the ownership and control thereof being vested in the Bishop of Lourdes while the running of the hospital is entrusted by him to the Sisters of Charity of Nevers. The main objects of the Order are the sanctification of its members and the relief of the poor and sick. The finances of the hospital are in the hands of the Bishop and all the money received is devoted to the care of the sick and the improvement of the hospital. The very words used by the testatrix indicate that the gift is for the benefit of the sick and it seems to me to be clearly charitable. The point was made in argument that the beneficiaries were out of the jurisdiction and the administration of the fund could not be controlled by the Court. There is no substance in that point as there is no question of any fund being administered by the Court. It is an outright gift to the Bishop as trustee for an object chosen by the testatrix, and of course there has been no suggestion that the Bishop would use the money for any purpose other than that indicated by the testatrix.
The third bequest I have to deal with is in the following terms “To the Irish Society of Our Lady of Lourdes the sum of £500.”
This organisation, to accord with international practice, has now changed its name to The Irish Hospitalité of Our Lady of Lourdes, but I am satisfied that it is the same organisation that the testatrix wished to benefit. Its principal object is the care of the sick poor and its members devote their care and attention, during a pilgrimage, to the sick poor, conveying them to Lourdes and providing them with care in the hospital. I am satisfied that the objects and activities of the Society are charitable unless it can be said that the fact that they care for the rich sick as well as the poor makes it not so. But on this point the judgment of Kingsmill Moore J., concurred in by Maguire C.J. and Lavery J. in The Governors of Barrington’s Hospital v. The Commissioner of Valuation (1) is decisive that this would not affect the issue, where he says: “The care of the sick of the community in general or any limited portion of the community is an element of the purposes and is no less charitable if the rich benefit as well as the poor.” This society is exclusively charitable in its objects and organisation and I hold this to be a good charitable gift.
The fourth gift in question is in the following terms:
“To the Trustees for the time being of the Nurses Benevolent Fund attached to the Irish Nurses’ Organisation having its office at 24 Nassau St., Dublin, the sum of Five Hundred Pounds for the benefit of elderly or infirm nurses.”
The unincorporated body “The Irish Nurses’ Organisation”which had its office at 24 Nassau St., Dublin, no longer exists, but I am satisfied from the evidence before me that its continuity both in membership and objects is preserved in the new incorporated body also known as”The Irish Nurses’ Organisation” and that it was this body that the testatrix intended to be the object of her bounty.
The second question which I have to deal with in connection with this legacy is whether it is a valid charitable gift. In the first place I notice that the testatrix leaves the gift to the trustees of the “Benevolent Fund” of the Organisation. I emphasise the word “Benevolent” because it seems to me to indicate an intention to aid distress. Benevolent funds are generally formed to aid the needy. Secondly, it is a gift for the benefit of the “infirm or elderly” nurses of the Organisation and not for the general purposes of the Organisation. In my view, having regard to the cases cited, it is not necessary to find that the relief of poverty be expressed in a testator’s will as the object of his gift before the gift can be held charitable; it is sufficient if the Court can find that the relief of poverty was intended by the testator. In the case of In re Glyn, Deceased, Public Trusteev. Attorney-General (1), it was held that a gift to endow cottages for old women of the working classes of the age of sixty years or upwards was a valid charitable gift. Danckwerts J. having referred to In re Lucas (2) said that a trust for the relief of aged persons would be charitable unless qualified in some way that would clearly make it not charitable. In that case, there was a sufficient context to show that the testatrix intended to benefit indigent persons, for the beneficiaries were to be women of sixty years of age or upwards who had had to work for their living and who by reason of their age, were unlikely to be able to support themselves any longer. In In re Bradbury, Needham v. Reekie (1), a trust to maintain an aged or aged persons in a nun’s home was held to be a good charitable gift by Vaisey J. and it is to be implied from what he said that his finding was based on his view that the intention of the donor was to aid the indigent. Likewise in the case of In re Dudgeon, Truman v. Pope (2), a gift for the benefit of”respectable single cu of good character above the age of sixty years” was held to be a good charitable gift on the grounds that the intention of the gift was the relief of poverty. In the present case I think the testatrix had in mind the relieving of distress. The gift is for elderly or infirm nurses and it is clear that infirm people would be unable to carry on their work. I think that by implication this is a gift for the relief of poverty and that it is a good charitable bequest and I so hold.
Re Kempthorne
[1930 ]1 Ch. 268; 99 L.J.Ch. 107; 142 L.T. Ill;
MAUGHAM J. : . . . Now in both of those cases it is to be noticed that the Legislature is assuming that the testator by his will has specifically appropriated in one case, or devised or bequeathed in the other, property for the payment of debts; or that he has charged with payment of debts specific property, or some property, under a general description, or devised or bequeathed property subject to a charge for payment of debts, and I cannot help concluding that those two paragraphs mean that the fact that the testator has done one of those things is not per se to constitute, to use the words of s. 34, sub-s. 3, a provision in the will which operates to alter the order of application which is specified in Part II. of the Schedule… .
LORD HANWORTH M.R. [on appeal]: … Maugham J. found the case one of difficulty because of the terms of the Administration of Estates Act, 1925, which drove him to the conclusion that he reached. Before that Act came into force, as he says, there would have been no question as to the fund applicable for the payment of the funeral and testamentary expenses and debts of the testator. The personal estate in its entirety would have been applicable for payment of them, and that notwithstanding that some of the residue became undisposed of by reason of the lapse of the three-sevenths.
Before dealing with the effect of the Act, it is important to come to a definite conclusion as to the meaning of the terms of the will. . . . Maugham J. finds the terms explicit in regard to the legacies. He holds that they clearly
indicated that the payment of the legacies is to be completed before the divisible fund is created; and he holds that the terms of the Act do not apply, because the fund is not ascertained until after payment of the legacies. It is clear, therefore, that upon the question of the legacies the learned judge attached importance to the word “after,” as indicating the point of time at which the fund is to be ascertained. I agree in this view: but it seems to me that the
same reasoning applies to the same word in relation to the payment of the expenses and debts. In this interpretation, the terms of the will are explicit and the fund, or net residue, is not ascertained-does not come into being-until the expenses, debts, and legacies have been paid.
Astbury J. held, in In re Petty ([1929] 1 Ch. 726), that in such a case, where the terms of the will are clear and provision is made for payment of the expenses, debts and legacies out of a fund created by the will, there is no room for the application of the Administration of Estates Act to disturb the directions of the will. I agree with this decision, and think that the principle on which it was decided applies in the present case. See also In re Atkinson ([1930] 1 Ch. 47), per Clauson J.
The difficulty arising from the Act which caused Maugham J. to decide otherwise is this. By s. 34, sub-s. 3, it is provided: ” Where the estate of a deceased person is solvent his real and personal estate shall, subject to rules of Court and the provisions hereinafter contained as to charges on property of the deceased, and to the provisions, if any, contained in his will, be applicable towards the discharge of the funeral, testamentary and administration expenses, debts and liabilities payable thereout in the order mentioned in Part IL of the First Schedule to this Act.” The estate is solvent here; and Part IL, para. 1, directs : ” Property of the deceased undisposed of by will, subject to the retention
thereout of a fund sufficient to meet any pecuniary legacies.” Eve J. decided in
ln re Lamb ([1929] 1 Ch. 772) that a share of residuary estate which lapses is ” property undisposed of by will.” We have had no argument upon the point of that case, and it is unnecessary to come to a final conclusion upon it, for that decision is not relevant upon the point whether the provisions of the will exclude the operation of the Schedule.
. Maugham J. would have given effect to the terms of the will, but for paras. 3
and 4 of the Schedule. He held that a specific appropriation of property for the payment of debts referred to in para. 3 and a charge upon property, or a devise or bequest of property subject to a charge for the payment of debts in para. 4, indicated that where such an appropriation or charge had been made by a will, it was not to be taken as a contrary provision in the will excluding the operation of those two paragraphs; but rather as directions in the will which were to b_e the foundation of the operation of those paragraphs. My own view, however, is that those paragraphs operate where the payment of debts is speci fically charged upon some particular property, or where some property is dealt with and subjected to the payment of the debts; and that they do not operate to override or prevent the creation of a general fund or residue which is to be ascertained, and does not come into being, until after the payment of the expenses and debts and legacies, and legacy duty, if any.
The result is that in my opinion the terms of the will do exclude the opera tion of the Schedule; and that there is no such appropriation or charge as is indicated in paras. 3 and 4 of it; and I find myself free from the difficulty which pressed upon Maugham J.
The appeal will be allowed.
Re Maldrum
[1952] Ch. 208
UPJOHN J.: . . . It is plain from the statutory provisions, both in the body of section 34 and in para. 8 of the schedule, that the provisions in Pt. II of the schedule are subject to the provisions contained in the will, and that the order of application may be varied by the will; in other words, it is really essentially a matter of construction of the will in each case whether the provisions of the schedule apply, or whether they have been varied by the terms of the will; and I propose, therefore, to consider in the first place the construction of this will before turning to the authorities which have been cited to me…
I can feel no doubt in my own mind what the testator was meaning to do; and I should have thought it was clear almost beyond argument that he was intending to direct that the legacies he had given and his debts and funeral and other expenses, whatever they might be, were to be discharged out of the deposit account, and that his death duties and testamentary expenses were to be dis charged out of residue, which was the other fund for discharge of those obligations.
With respect, I agree with the words of Roxburgh J. in In re James ([1947]
Ch. 256): ” I should hold that the direction to pay debts out of a particular fund necessarily involved an intention to exonerate some other fund which the testator disposed of in some other part of his will-in other words, necessarily involved an intention to exonerate the residue of his estate which he devised and bequeathed to his wife absolutely.”
It is true that in that case the direction was a direction to trustees to realize certain property and to pay certain obligations, but in this case, speaking for myself furely without reference to authority and solely regarding the words of this wil , I should have thought that the testator was plainly saying: ” You pay the legacies, debts and funeral and other expenses out of the deposit account; you pay the estate duty and testamentary expenses out of residue”; in other words, to paraphrase the words which the testator has used, in my judgment it is as though he said in clause 9: ” I devise and bequeath all the residue of my property, etc., to my trustees upon trust after discharging death duties and testa mentary expenses to pay the income in the way indicated.” Had he done that, I hardly think there could have been any argument about it…. As I understand Maugham J., he is saying: ” Having regard to the fact that para. 1 or para. 2 are present in the schedule, it is not sufficient to find an indication in the will that a particular piece of property is to be charged with payment of debts to assume that the testator is intending to alter the order of application of assets”; because if that were so, you never could give effect in such a case to a case where there was a partial iuestacy bringing in para. 1, or residue (as in this case) bringing in pai:a. 2. I think that Roxburgh J. in In re James recognized that fact in the clearest terms; but, nevertheless, it seems to me to remain a question purely of construction of each will whether or not the testator has varied the order of application of assets or not.
I was pressed by Mr. Montgomery White to hold that the intention behind the schedule was to assimilate the rule in relation to personal property to the rule regarding real property before 1926. That rule was quite clear and is to be found stated in In re Smith ([1913] 2 Ch. 216), namely, that where there was a charge of debts on real estate, then to exonerate personalty from payment of those debts there must be found a clear indication in the will, not merely to charge debts on the property, but an intention to exonerate the other property which would otherwise be liable for the debts; whereas with regard to personal estate it was sufficient to find a charge to pay debts on personal estate to exonerate residue.
Mr. Monroe pressed me to adopt the contrary view; that is to say, that the legislature in the Administration of Estates Act, 1925, was intending to bring realty into line with the previously existing rule relating to personalty, and he referred me to an observation of Lawrence L.J. in In re Kempthorne.
My own view of the matter remains that it is a question of construction of each will whether or not the testator has intended to vary the order of applica tion of assets. The Act clearly so provides and that view is also justified by two authorities. The first is In re Littlewood ([1931] 1 Ch. 443), a case not entirely dissimilar to the present, for there was an express charge of debts and funeral and testamentary expenses on a specific bequest followed by an absolute
gift of residue. The will was executed before the coming into force of the Administration of Estates Act, 1925, and Maugham J. construed it in the light of the pre-existing law; and in the light of that law he came to the conclusion
that, on the true construction of the will, the charge of debts on certain specific bequests did in fact exonerate the residuary estate, and, therefore, he came to the conclusion that the testator had intended to alter the order of application of assets.
He said : ” In In re Kempthorne I endeavoured to explain the difficulty which I felt in giving effect to some of the provisions of that part of that schedule, and I understand that the Court of Appeal, who differed from me on one point in that case, also felt some difficulty in explaining the precise effect of those provisions. I think, however, that I am justified in taking the view that, prima facie, the paragraphs of the schedule are to have effect, subject to the provisions of the will of the deceased, in cases where there is a reasonably clear indication of the intention of the deceased; and a fortiori, I think, is that the case where the will was executed before the coming into force of the Administration of Estates Act, 1925.
” In the present case I have come to the conclusion that the testatrix has definitely expressed a desire that the debts and funeral and testamentary expenses and legacies shall be paid out of or charged upon the farm stock, implements
and tenant right of which she has disposed; and, following the principle adopted by the Court of Appeal in In re Kempthorne and by Clauson J. in In re Atkin,
son ([1930] 1 Ch. 47), I hold that the order of application of assets specified in Pt. II of Sch. I to the Administration of Estates Act, 1925, has been varied by the provisions in the will of the testatrix.”
The second authority is the decision in In re James, to which I have already referred. In that case Roxburgh J. construed the will, and found as a matter of construction that the testator had indicated an intention to vary the order of
application of assets, and in his view he was entitled, therefore, as a matter of construction of the will, so to decide.
I am not unimpressed by the argument of Mr. Montgomery White that it is difficult to reconcile those cases with the statement of the law of Maugham J. in In re Kempthorne, to which I have referred, but having come to the conclusion,
as I have, that it is a matter of construction of each will, I find nothing in the authorities which precludes me from giving effect to what I feel are the clear indications in clause 4 (q) as to what the testator intended.
Re Thompson
CLAUSON J.: The testator in this case appointed an executor and gave certain legacies and an annuity, and after dealing with those legacies and that annuity proceeded in these terms : ” I devise all my real and personal estate not hereby otherwise devised or bequeathed as to one third thereof to the Cottage Hospital, Buxton, and as to two thirds thereof to the Devonshire Hospital, Buxton, both of these legacies to be known as the Hobson Thompson Legacies.” He left behind him personal estate and real estate. The personal estate is sufficient to pay a substantial amount on account of the legacies, but is not sufficient to discharge the legacies in full, and in the term “legacies” I include the annuity, which is a legacy.
The law which operates in these circumstances is well settled, and I will take the statement of it from the headnote in In re Boards ( [1895) 1 Ch. 499):. ” When a testator bequeaths legacies, and then bequeaths the residue of his real and personal estate, the legacies are charged upon the real estate or its proceeds, but they are payable primarily out of the personalty, unless the testator directs that they are to be paid out of the mixed fund, in which case they are paid rateably out of realty and personalty.” So the strict way to administer this estate is to pay the legacies out of personalty so far as it will go, and so far as there remains something payable upon the legacies that is charged upon realty. The materiality of the matter is this, that the duties payable may be affected. So far as regards the beneficial interests the matter is of no practical importance in this particular case, where the residuary r<:’alty and personalty go to the same destination. It is suggested that having regard to certain provisions of the Administration of Estates Act, 1925, the rule stated in In re Boards is no longer the law. It is suggested that by that Act an alteration has been made which results in the ·law now being that when a testator bequeaths legacies and then bequeaths the residue of his real and personal estate, the legacies are not payabl primarily out of the personal estate, but are payable out of the realty and per sonalty pro rata according to the proportions of the realty and personalty. The suggestion that that is now the law is founded upon this, that by s. 34, sub-s. 3\of the Administration of Estates Act it is provided that ” Where the estate of a deceased person is solvent “-that is of course the case here-” his real and personal estate shall subject to Rules of Court and the provisions hereinafter contained as to charges on the property of the deceased, and to the provisions, if any, contained in his will, be applicable towards the discharge of his funeral testamentary and administration expenses debts and liabilities payable thereout in the order mentioned in Part II. of the First Schedule to this Act.” Part II. is headed “Order of application of assets where an Estate is solvent.” The first clause provides for the case of a deceased person having died intestate as to part of his estate. The second clause is in these terms : ” Property of the deceased not specifically devised or bequeathed, but included (either by a specific or general description) in a residuary gift, subject to the retention out of such property of a fund sufficient to meet any pecuniary legacies, so far as ‘not provided for as afore said.” The last words mean, so far as not provided for out of the part of the estate as to which the testator died intestate. It is suggested that the effect of that provision is to alter the law, and to provide that the fund which is to be retained out of residuary realty and personalty in order to meet pecuniary legacies is to be retained in the following way: that a proportionate part is to be retained out of realty and personalty pro rata of the amount of the realty and personalty respectively. The provision does not say so, and the provision is not concerned with any such matter. The provision is concerned with the way in which funeral, testamentary and administration expenses, debts and liabilities are to be met. There is no indication there that there is any intention of altering the law in respect of the rights of the legatees as against those interested in the residuary personalty and residuary real estate, or in respect of the rights inter se of those interested in the residuary realty and personalty respectively, as regards bearing the charge of legacies, and I can see no foundation for the suggestion that that provision has in any way altered the law as laid down in In re Boards.
. Another point was mentioned. I was referred to clause 8 (b), which runs
thus: ” This part of this Schedule does not affect the liability of land to answer the death duty imposed thereon in exoneration of other assets.” I should have thought that the effect of that clause would be that, even if I had been able to hold that this Act by this Schedule altered the law in In re Boards for the purpose of ascertaining the incidence of death duties, the estate would have to be notionally administered as though the Act had not been passed. However, that point does not arise if by the Act there is no alteration of the law as laid down in In re Boards.
Re Worthington
[1933] Ch. 771;
LORD HANWORTH M.R.: . . . The question is whether the legacies and the
debts, funeral and testamentary expenses are payable primarily out of the lapsed share or whether the debts, etc., only are so payable. Bennett J. held that in the
circumstances the debts, etc., were payable primarily out of the lapsed share, but that the pecuniary legacies were payable out of the general estate before the residue was ascertained. . . .
…
Having regard to those sections and the paragraph of Part II. of the First Schedule which I have read, is there any reason for the distinction made by Bennett J. between debts and funeral expenses on the one hand and pecuniary legacies on the other? The learned judge seems to have read the will as provid ing for the payment of the legacies first and to have thought that the residue was not to be ascertained until after they had been paid. But the provisions of the statute indicate that unless there is some provision in the will which nega tives the prescribed order of administration, that order of administration must apply both to legacies and to debts. The learned judge seems to have thought that because of the specific reference to legacies in the will there was an indica tion of an intention that the statutory order of administration should not apply to them. But, after all, if legacies are given by a will, there must be a specific reference to them, and I do not see how that can be sufficient to alter the statutory order of administration.
When I look at the decision of the Court of Appeal in In re Tong ([ 1931] 1 Ch. 202), it seems really to cover the decision in this case. In that case I see that I said : ” There are express directions (in the will) as to some matters. Is it not the fair inference that he (the testator) intended the statutory table to be followed in regard to the payment of other expenses, debts or liabilities? I cannot accept the view that there is any indication in the words used in the will
that the statutory order of application of assets was not to apply in regard to these other matters.” Romer L.J. there said: “I fail to find anything in the will amounting to an indication of the testator’s intention that the funeral and testa
mentary expenses and debts generally should be paid in any other mode than that specified in Part IL of the First Schedule. Even if the testator had directed his executors to pay all his funeral and testamentary expenses and debts and then given the remainder of his estate on certain trusts, I should still have hesitated to say that this amounted to an indication that the expenses and debts were to be paid in any other order out of the assets than that provided for in the First Schedule. The truth of the matter is that there is nothing in this Act which prevents or is intended to prevent executors from paying expenses, debts and lia bilities out of the first assets coming to their hands available for the purpose; and Part IL of the First Schedule really only deals with the ultimate adjustment of the burden as between the parties becoming entitled to the testator’s estate. Therefore the use of such a word as ‘ remainder ‘ does not seem to me to make any difference. Such words throw no light on how as between the persons having beneficial interests in remainder the liability for expenses and debts is to be apportioned.” I also find a difficulty in holding that there should be any change made in the statutory order of payment because the testator may have used such a word as “remainder.”
For the reasons that I gave in that case, and have given in this case, I agree entirely with what was said by Romer L.J. in In re Tong. There is here
nothing in the will which amounts to a direction that there should be any differentiation between the legacies on the one hand and the debts, etc., on the other hand, or that the legacies ought to be paid otherwise than as directed by the Act.
There will, therefore, be a declaration that the debts and legacies are payable primarily out of the lapsed share of the residue bequeathed to Elizabeth Singer.
Re Baumont’s WT
[1950] Ch. 462; 66 T.L.R. (Pt. 1) 712; [1950] I All E.R. 802
DANCKWERTS J.: As Mr. Winterbotham contended, s. 34, sub-s. 3 of the Administration of Estates Act, 1925, has in effect made no provision with regard to such things as legacies. On the authorities, the funeral, testamentary and administration expenses, debts and liabilities undoubtedly come out of the whole residuary estate before division, because that is what the will says; but the posi tion of the legacies depends on the old law. By that law, that is, before the Administration of Estates Act, 1925, legacies would plainly come out of the residuary estate, and, although in this particular will there is not in terms a gift of residue there as a gift of ” all my real estate and all my personal estate not hereby otherwise disposed of”; and it seems to me that the old law applies unless something in the Administration of Estates Act, 1925, demonstrably eliminates or modifies the old law as to the extent of such burdens.
On this point I am assisted by In re Thompson ([1936] Ch. 676, supra, p. 238), in which Clauson J. held that the old law, laid down in In re Boards ([1895] 1 Ch. 449), still remained operative after the Administration of Estates
Act, 1925, came into force, so as to cast the primary burden of legacies on the personal estate.
It seems to me, therefore, that in the present case the pecuniary legacies and the specific legacies, and the duty on those legacies which is in the form, or has the effect, of an additional legacy, are all payable out of the whole estate before coming to what is divided into four equal parts and given to four named persons, so that the lapsed share is simply a lapsed share of the estate after those burdens have been cleared.
Cases Ademption
Lenehan v. Wall
[1922] IR 61
M. R. 61
O’CONNOR M.R. :
This is a suit for the administration of the real and personal estate of James Wall, late of The Moors, Duleek, in the county of Meath, farmer, and the question arises whether lands known as Keenogue, containing 61 acres 2 roods 32 perches, held in fee-simple, form part of his real estate.
[His Honor stated the facts as above set out and continued.]
James now maintains that on the execution of the conveyance he became entitled to the farm of Keenogue. The residuary devisees maintain that it is part of the testator’s residuary estate. In my opinion there is no doubt whatever about the right of James to the farm. It is settled law that a purchase by a father in a child’s name is prima facie an advancement by the father to the child, and that there is no resulting trust. In order to set up a resulting trust there must be evidence that the intention of the father was to create a trust for himself. There is no evidence of the kind here. The whole onus is thrown on the parties assenting to the trust, and that onus has not been discharged. Indeed, any evidence there is supports the intention to advance, but it is unnecessary to refer to it.
It was also contended that the conveyance of the farm of Keenogue to James operated as an ademption of the benefits which he took under the will. Now, the benefits which he took under the will were another farm, the chattels thereon, and a sum of £700. This contention involves the proposition that a devise of one parcel of land may be adeemed by the mere gift of another parcel of land without any expression of intention. There is no authority for this, and to so hold would be an unwarranted and dangerous extension of the rule against double portions.
As to the legacy of £700, it would be idle to suggest that it was adeemed by the gift of the farm, because it is elementary that money is not adeemed by land unless indeed a money value is put upon the gift. If the money which was the price of the farm had been given to James, there might then have been a case for the ademption of the legacy of £700, but the price of the farm was not given to James. The only thing that was given to him was the farm. I must therefore hold that there was no ademption.
Patrick Kelly v John Frawley
Circuit Court.
15 February 1944
[1944] 78 I.L.T.R 46
Judge O’Briain
Ennis, December 10th, 1943; February 15th, 1944
Judge O’Briain:
In this case the plaintiff claims payment of a legacy of £100 bequeathed by the will of Matthew Kelly, who died on the 17th March, 1942, having made his will on the 14th February, 1942. After certain specific bequests the testator gave all his remaining property to the defendant *46 “upon trust as to the sum of £121 or thereabouts due to me by the representatives of the late Patrick McInerney (secured by the lands of the said Patrick McInerney) for Patrick Kelly absolutely,” and the testator then dealt with the remaining portions of his property. Probate of the will of the 14th February, 1942, was granted to the defendant.
Before the death of Matthew Kelly, but after the making of this will, a cheque for £100, drawn by the solicitors acting for the personal representatives of Patrick McInerney in favour of Matthew Kelly’s solicitors, was forwarded to Matthew Kelly’s solicitors: this cheque was in full satisfaction of the amount due to Matthew Kelly by the personal representatives of Patrick McInerney, and a release of the charge on McInerney’s lands was executed by Matthew Kelly. The cheque for £100 was indorsed by Matthew Kelly’s solicitors and forwarded to Matthew Kelly, who did not present the cheque for payment before his death. The question which arises is whether the legacy bequeathed by the will of Matthew Kelly has been adeemed.
It seems to me that this is a question of the construction of the will and not a question of the intention of the testator. The general rule is that to complete the title of a specific legatee to his specific legacy the thing bequeathed must at the date of the death of the testator remain the same in specie. In Humphreys v. Humphreys 2 Cox. 184 the Lord Chancellor says that the only rule to be adhered to was to see whether the subject of the specific bequest remained in specie at the time of the testator’s death, for if it did not, then there must be an end of the bequest.
I think that in this case a particular debt due to the testator was bequeathed and that this was a specific legacy of that debt.
But that debt was so altered in form by the subsequent transactions that the subject-matter of the legacy was extinguished and a new debt (the liability on the cheque) created.
This case is indistinguishable from the decisions in Sidney v. Sidney L. R. 17 Eq. 65 and Smallman v. Goolden 1 Cox. 329.
I hold that the legacy in respect of which the action is brought has been adeemed, and I dismiss the Civil Bill. I shall allow both parties their costs out of the estate.
Stanley v Potter
Court of Chancery (1789) 2 Cox 180; 30 E.R. 83
LORD THURLOW: When the case of Ashburner v. M’Gwire ( (1786) 2 Bro. C.C.
108) was before me, I took all the pains I could to sift the several cases upon the subject, and I could find no certain rule to be drawn from them, except this, to inquire whether the legacy was a specific legacy (which is generally the dun cult question in these cases), and if specific, whether the thing remained at the testator’s death; and one must consider it in the same manner as if a testator had given a particular horse to A. B. if that horse died in the testator’s lifetime, or was disposed of by him, then there is nothing on which the bequest can operate. And I do not think that the question in these cases turns on the inten tion of the testator. The idea of proceeding on the animus adimendi has introduced a degree of confusion in the cases which is inexplicable, and I can make out no precise rule from them upon that ground. As to the case of Attorney-General v. Parkyns [ no reference given], I collect from the note I read of that case that Lord Camden would have had great difficulty in making those legacies contributory in the event of a deficiency of assets; and if so, I cannot conceive how they are to be taken as general legacies for any other purpose; they must have had all the consequences of general legacies, or none; they could not be specific to one purpose, and general to another. This I cannot understand. And I believe it will be a safer and clearer way to adhere to the plain rule which I before mentioned, which is to inquire whether the specific thing given remains or not. For where a testator gives by his will a particular sum of money, and he afterwards receives and spends it, I see no end to the confusion arising from the following any other line.
His Lordship therefore declared the legacy to be adeemed.
Re Slater
Court of Appeal [1907] l Ch. 665; 76 L.J.Ch. 472; ‘Y7 L.T. 74
COZENs-HARDY M.R.: This case has been most elaborately and ably argued, but I do not think that it will be necessary in the judgment which it is my duty now to deliver to discuss many of the authorities which have been cited to us. The testator in this case in February, 1904, made a bequest which certainly has the merit of brevity. It is a bequest which all parties admit to be a specific bequest. It is a specific bequest, the subject-matter of which I will deal with presently, of certain property the interest of which is to go to the widow for life, on her death to the widow’s sisters in equal shares for their lives, and on the death of the last survivor the capital is to be divided between a class of persons whom I need not refer to. It is a complete disposition of certain specific properties. Now what are the properties which are thus specifically given by the
testator, whose widow is entitled to the income for life? These are the words: – … There are two points which arise having regard to one fact which I must now state, that by virtue of an Act of Parliament
passed in the year 1902, that is to say, before the date of this will, the under taking of the Lambeth Waterworks Company was purchased by the Metropolitan Water Board, and by virtue of a scheme prepared in accordance with the Act the testator acquired certain Metropolitan Water Board B stock. It is contended on behalf of the appellant that that Metropolitan Water Board B stock is to be substituted for the Lambeth Waterworks stock, and that it ought to go to the tenants for life, and to the persons ultimately entitled to the capital of this specific bequest. That view is opposed on two grounds. It is said first that the provisions of s. 24 of the Wills Act require that this bequest should be construed as to the property comprised therein as speaking from the death, and that if s_o, there being nothing upon which it can operate-there being at that time no Lambeth Waterworks Company stock-the bequest fails. Alternatively it is said that even if you are in effect to read into the language of this bequest words which make it specific, and applicable only to the stock which the testator had at the date of the will, still that which _has since happened has adeemed that specific legacy.
Joyce J. dealt with the case only on the former of those grounds. He held that s. 24 of the Wills Act applied, there being no sufficient contrary intention to exclude the operation of that section, and that the claim of the specific legatee failed.
I agree with the learned judge in that view. It seems to me that this is a will in which there is no contrary intention at all, or at any rate no sufficient inten tion to exclude the operation of s. 24. Let me suppose, what is quite possible, that in the interval between the date of his will and of his death the testator had purchased in the market 1000/. more of this very Lambeth Waterworks Com pany’s stock, and that he had died before the completion of the transfer of the undertaking under the scheme. It seems to me that the argument which must then have been addressed to the Court on behalf of the specific legatee, that a gift of “my Lambeth Waterworks Company’s stock” is a gift of “the Lambeth Waterworks Company’s stock which I may have at my death,” must have succeeded, and that it would have been irrelevant to consider whether the amount which the testator had at his death was greater or less than the amount which he had at the date of the will. . . .
But, supposing I am wrong in that, and that the appellant is right on this point, and that by construction I am to read this bequest as meaning ” I bequeath the interest during her life arising from the money invested in the following particulars which I now hold,” then you are face to face with the question, Has not this gift, so far as the Lambeth Waterworks Company’s stock is con cerned, been adeemed by the subsequent transaction? Speaking for myself, although it may not be absolutely necessary for the decision of this case, I think it has been. There was a time when the Courts held that ademption was dependent on the testator’s intention, on a presumed intention on his part; and it was therefore held in old days that when a change was effected by public authority, or without the will of the testator, ademption did not follow. But for many years that has ceased to be law, and I think it is now the law that where a change has occurred in the nature of the pn,perty, even though effected by virtue of an Act of Parliament, ademption will follow unless the case can be brought within what I may call the principle of Oakes v. Oakes ( (1852) 9 Hare 666), in which Turner V.-C. held that a bequest of shares in a railway company was not revoked by the subsequent change of those shares into stock by reason of a vote of the company under the powers of their special Act. At the end of his judgment the Vice-Chancellor says this (at p. 672): “The testator had this property at the time he made his will, and it has since been changed in name or form only. The question is, whether a testator has at the time of his death the same thing existing, it may be in a different shape,-yet substantially the same thing.” Remembering the extraordinary accuracy of the language used by Turner V.-C., I think there is a great force in those words which he used “changed in name or form only, … yet substantially the same thing.” Applying that to the present case, in the first place the Lambeth Waterworks undertaking was sold, and sold for cash-sold, that is, for cash in this sense, that the price was ascertained in cash and could only be paid otherwise than in cash if both the vendors and the purchasers agreed to a scheme providing for satisfying the purchase-money otherwise. That agreement was obtained in the present case. A scheme was prepared, and the Water Board B stock was allotted to the testator in respect of his shares in the old company. But can it possibly be said that that is the same thing? Instead of having shares in a company dependent for its profits upon water rates which they, and they alone, were able to demand from the limited area within the ambit of their Act of Parliament, the Water Board B stock is a stock which is payable out of water rates levied not merely upon the Lambeth Waterworks area, but upon the whole of the metropolitan area, and,·1 think, also on some districts even outside the metropolitan area. But, more than that, in the event of the water rates being insufficient to provide for the interest the present stock has a claim upon the rateable property in London, and any deficiency has to be made good out of the general rates. I cannot bring myself to say that that is the same thing. I feel bound myself to adopt the view taken not in one case only, but in many, that you have to ask yourself, Where is the thing which is given? If you cannot find it at the testator’s death, it is no use trying to trace it unless you can trace it in this sense, that you find something which has been changed in name and form only, but which is substantially the same thing. One authority has been adduced to us which is certainly very near the present case: it is the case of In re Gray ( (1887) 36 Ch.D. 205), decided by Kay J. It is quite true that the observations made by that learned judge were not necessary for the decision of the case, for he first held that the legacy in that case was general and not specific, but he went on to discuss the question what would happen assuming that the gift was specific. In that case the testator bequeathed certain shares in an old unlimited bank. In the interval between the date of his will and of his death the company was registered under the same name with the addition of the word “Limited,” and the shares were subdivided up, each 100/. being converted into two shares of the nominal value of 60/., and the learned judge held that, even assuming the legacy had been specific, the shares in the limited company were not so completely identified with the old shares as to prevent the application of the doctrine of ademption.
On this ground also I think that … this appeal must be dismissed.
Re Pollock
Court of Appeal (1885) 28 Ch.D. 552; 54 L.J.Ch. 489; 52 L.T. 718
LORD SELBORNE L.C.: . . . The question is, whether the legacy of £500 was adeemed or satisfied wholly or in part by the donation of £300? Mr. Justice Pearson, by the order appealed from, has decla1ed that it was adeemed by the gift and acceptance by the Plaintiff of that sum. The question whether it was adeemed pro tanto only, does not appear to have been argued before him, it seems rather to have been assumed that if adeemed at all, it must have been adeemed altogether. When a testator gives a legacy to a child, or to any other person towards whom he has taken on himself parental obligations, and after wards makes a gift or enters into a binding contract in his lifetime in favour of the same legatee, then (unless there be distinctions between the nature and conditions of the two gifts of a kind not in this case material) there is a presump tion prima facie that both gifts were made to fulfil the same natural or moral obligation of providing for the legatee; and consequently that the gift inter vivos is either wholly or in part a substitution for, or an ” ademption ” of the legacy….
The presumptions arising out of the parental relation do not of course extend to any case in which the legatee is a stranger to that relation. But numerous authorities have determined that if a legacy appears on the face of the will to be bequeathed (though to a stranger) for a particular purpose, and a subsequent gift appears by proper evidence to have been made for the same purpose, a similar presumption is raised prima facie in favour of ademption. And it is clear from the authorities, that evidence of the circumstances under which the subsequent gift was made including contemporaneous or substantially contemporaneous declarations of the donor (whether communicated to the donee or not) may be admissible in such a case. To constitute a particular purpose within the meaning of that doctrine it is not, in my opinion, necessary that some special use or application of the money, by or on behalf of the legatee (e.g., for binding him an apprentice, purchasing for him a house, advancing him upon marriage, or the like), should be in the testator’s view. It is not less a purpose, as distin guished from a mere motive of spontaneous bounty, if the bequest is expressel1 to be made in fulfilment of some moral obligation recognised by the testator, and originating in a definite external cause, though not of a kind which (unless expressed) the law would have recognised, or would have presumed to exist. And it appears to me that a case of this kind comes very near, in principle, to the first class of cases, in which ademption by a subsequent gift is inferred from the parental relation. The reasonable presumption is the same, namely, that as the purpose of both gifts was to fulfil one and the same antecedent obligation or duty, a double fulfilment was (presumably) not intended.
In the present case, the purpose of fulfilling the moral obligation recognised by the testatrix as imposed upon her by the communication of the wishes of her late husband (who had left her his whole property) appears clearly enough on the face of the will; and the evidence proves, that the subsequent gift was for the same purpose. . . .
My conclusion is that the presumption in favour of an ademption pro tanto only is not sufficiently displaced by this evidence, and therefore that the order of Mr. Justice Pearson ought to be varied, by declaring that the legacy of £500 was adeemed by the gift to the extent of £300 only, and by ordering payment of the difference ( £200) to the Appellant with interest from the expiration of one year after the testatrix’s death….
Re Heilbronner
[1953] 1 W.L.R. 1254
ROSBURGH J.: . . . There is a line of cases indicating that where furniture in a house is given, and at the testator’s death the furniture has been removed to a warehouse, or some other place for a purely temporary purpose, the bequest operates upon the furniture in its temporary habitation: see Theobald on Wills, 10th ed., at p. 128. Whether that doctrine has ever been applied to this sort of subject-matter, I do not know, but I am quite willing to be the first to apply it, feeling as strongly as I do that this testator intended to give Nurse Kenny some money. There is no doubt that this money, both the £100 which was drawn in favour of Nathan in April, and the balance of £176 which was drawn later on authority, was drawn for a temporary purpose, namely, to enable Nathan to pay household expenses when the testator was too ill to go out or to sign cheques. It was, of course, hoped that he would get better or, at any rate, get sufficiently well to rearrange his affairs, and I dare say to make a new will. But unfortunately that opportunity never occurred.
I do think that I can, by analogy, apply the doctrine I have mentioned, so that that balance of the sum of £235 16s. 7d., though actually in the hands of Nathan as trustee at the date of the death of the testator, must be deemed to have been on current account at the bank and, therefore, to pass under the bequest to Nurse Ada Kenny.
Re Warren
[1932] 1 Ch. 42
MAUGHAM J. ….”And as to the argument that the codicil must, at any rate, be evidence of an intention that both sums should be· paid, the same answer may be given which has been given to a similar argument in other cases; namely, that the testator, if he knew the rule of law, must have known that the codicil would not revive the adeemed legacy, and, therefore, it was unnecessary for him to mention it: the probability, however, is, that his attention being directed to the only object of the codicil, the words of confirmation of the will were introduced as words of course, without any reference to the legacy in question.”
I am bound by that decision so far as it is in point. But it seems to me that, although we commonly use the words ” ademption ” to describe the results of ademption by portion or by acts of the testator after the date of the will, and also to describe the destruction or alteration of the subject-matter of the devise or bequest after the date of the will by events which take place independently of the testator and possibly without his knowledge, the two things are really different. The judgment of Lord Cottenham shows that, where the question is whether a new legacy is being given by the confirmation of a will by a codicil so as to give a child a double portion, the question must be answered as he answered it. But I am not satisfied that the same result should follow when an alteration in the nature of property has taken place by operation of law, and the testator by a codicil has confirmed his will after the alteration of the law. It may be worth while pointing out that not every alteration in the nature of a testator’s interest in specific property is enough to work ademption. It may, also, help to show the nature of the problem before the Court to call attention to the case of Oakes v. Oakes ( (1852) 9 Hare 666). That was a case dealing with shares in a railway company. At the end of his judgment Sir George Turner V.-C. said: “If the testator gave all stock standing in his name at the date of his will, and it turned out that there was some stock standing in the name of a mortgagee, the equity of redemption in that stock would not pass; but if it happened, that, at the date of his will, there was stock standing in his name, and that the testator had subsequently mortgaged it, the mortgage would not have adeemed or revoked the bequest. So, in this case, the testator had this property at the time he made his will, and it has since been changed in name or form only.”
That decision is approved in In re Slater ([ 1907] 1 Ch. 665), where Cozens Hardy M.R. referred to the accuracy of the language and said that there was great force in the words ” … changed in name or form only. The question is, whether a testator has at the time of his death the same thing existing, it may be in a different shape,-yet substantially the same thing.”
I return now to the present case. The testatrix, subject to certain modifica tions, confirmed her will. Prima facie that means that she confirmed the devises partly contained in paragraph 3 of the will. There can be no doubt at all that if, in the codicil, she had used the words contained in that paragraph, her undivided share in the proceeds of sale would have passed: In re Lowman ([1895] 2 Ch. 348).
I do not regard Powys v. Mansfield as laying down the general proposition that no kind of so-called ademption could be prevented by the confirmation of a will by a codicil. The question is one of the testator’s intention, according to the rules laid down by the Court for the construction of wills. Having regard to the various considerations that I have mentioned, and to the facts that the testatrix had not parted with the whole of her interest in the land, that what she is here devising is her share of it, and that she has, after the alteration of the law, confirmed her will without any mention of the real estate or of that share, I am of opinion that the devise took effect in the sense that the interest in the proceeds of sale passed to Godfrey Francis Warren absolutely. In coming to that conclusion, without saying that I rely on In re Wheeler ([1929] 2 K.B.81), I am glad to think that, in substance, I am following the line of thought which commended itself to the Court in that case (and see p. 305, infra).
Cases Lapse
Martin Moorehead v Juha Tapani Tiilikainen and John (otherwise Jack) O’Donoghue
(defending by his guardian ad litem Steve O’Donoghue)
1998 No. 763 Sp
High Court
17 June 1999
[1999] 2 I.L.R.M. 471
(O’Sullivan J)
O’SULLIVAN J
delivered his judgment on 17 June 1999 saying: The late Maria Tiilikainen (nee Moorehead) (hereinafter ‘the deceased’) died intestate on 3 September 1997 survived by three children who are represented in these proceedings by the second named defendant defending by his father named in *473 the title hereof. The first named defendant is the husband of the deceased and the plaintiff, her brother, brings these proceedings in his capacity as acting executor of his mother the late Patricia Moorehead who died on 10 October 1997, that is a little over a month after the deceased.
The late Patricia Moorehead left her entire estate to her three children namely the plaintiff, the deceased, and their sister Carmel in equal shares. Notwithstanding the fact that the deceased died before her mother this gift did not lapse by reason of the provisions of s. 98 of the Succession Act 1965 which as applied to the circumstances of this case where the deceased has left issue living at the time of the death of her mother, provides that the gift shall not lapse but shall take effect as if the deceased’s death had occurred immediately after the death of her mother.
By a separation agreement dated 6 December 1991 the first named defendant and the deceased agreed to separate and expressed themselves as mutually covenanting and agreeing, inter alia:
That the husband and the wife hereby renounce and surrender all and any rights he or she may have in the estate of the other under the provisions of the Succession Act 1965. The husband and the wife confirm that they understand the significance of this clause same having prior to the execution hereof been explained to them by their respective legal advisers.
By clause 11 of the same agreement the parties further provided as follows:
It is hereby agreed that in the event of the husband and wife at any time hereafter with the [sic] mutual consent co-habiting as man and wife for a continual period of twelve months then in such case all payments under this agreement shall cease absolutely to be payable and all covenants hereinbefore contained shall thereupon become null and void without prejudice to any acts previously made or done hereunder or any proceedings on the part of either of them in respect of any breach or any covenants herein contained.
The plaintiff in his affidavit grounding these proceedings deposes as follows:
Although I am aware that my said sister, Maria Moorehead (otherwise Maria Tiilikainen) and the first named defendant herein became reconciled and lived together, I cannot say with certainty when this took place.
The first named defendant in an affidavit states that from January 1994 he and the deceased had recommenced their matrimonial relationship living as man and wife and whilst this relationship was interrupted by two periods of three months each when he was employed in Japan, it continued until the death of the deceased who has since the death of his wife remained at the family home *474 in Three Mile Water, Wicklow with her three children namely, Riki and Kevin Tiilikainen (both his sons) and the second named defendant who is in his custody with the consent of his father.
In an affidavit sworn by Steve O’Donoghue on behalf of his son the second named defendant this reconciliation and recommencement of co-habitation between the first named defendant and the deceased is controverted and challenged. Steve O’Donoghue avers (and this is not in contest) that he himself entered into a relationship with the deceased in or about the year 1990 and in oral evidence specified that this relationship continued for two years and 10 months. Indeed, it was this relationship which brought about the separation agreement already referred to and the first named defendant’s voluntary withdrawal from the household at Three Mile Water to take up work on Lambay Island. Steve O’Donoghue avers that there was no reconciliation as claimed by the first named defendant and states that the first named defendant was merely permitted to return to live at Three Mile Water for the sake of the children and on the basis of his poverty. He says that the first named defendant slept upstairs with his two sons whilst the deceased slept downstairs with his son the second defendant. He makes specific reference to a meeting on 25 May 1996 at a public house in Wicklow where he says it was obvious that the deceased was having a sexual relationship with a new boyfriend, Bernard Mulcrone, that the deceased said to the assembled company that there was no chance of any reconciliation with the first named defendant at all and that she was very happy and in love with Bernard. This relationship continued while the first named defendant was in Japan.
The issues
From the foregoing it is clear that there is a conflict of fact as to whether or not the first named defendant recommenced his marital relationship with the deceased and I ruled that respective counsel should cross-examine the deponents on their affidavits in regard to this issue of fact. I will return to the evidence later.
The plaintiff seeks directions, further, as to whether in the event that I were to hold that there had been a reconciliation as contemplated by clause 11, this had the effect of nullifying the renunciation and surrender by the first named defendant of all his rights to the estate of the deceased under the Succession Act 1965. The point made by the plaintiff in his affidavit is that clause 11 provides in the contemplated circumstances that all covenants should become null and void and there is a question as to whether a renunciation and surrender is or is not a covenant.
The relevance of this is that if the renunciation of his right under the Succession Act 1965 by the first named defendant applies then the one third interest of the deceased in her mother’s estate will be divided equally between her *475 three surviving children namely Riki Tiilikainen, Kevin Tiilikainen and John (otherwise Jack) O’Donoghue; whereas, if that renunciation is nullified then the said one third interest will itself be divided as to two thirds to the first named defendant and as to one ninth part each to the said three children.
Accordingly, I must first decide, in light of the evidence, whether the first named defendant was in fact reconciled with the deceased so as to come within clause 11 of the deed of separation and, if so, whether this had the effect of nullifying his renunciation and surrender of rights under the Succession Act.
Preliminary issues
Hearsay evidence
The affidavit of Steve O’Donoghue is based largely on information communicated to him on the telephone by the deceased. It is therefore hearsay evidence. Mr O’Donoghue was cross-examined on the contents of his affidavit and Mr Peart SC submitted on behalf of the second named defendant that this ‘let in’ the evidence in chief of John O’Donoghue together with further evidence elicited on re-examination. He relied on a paragraph in an earlier edition of Phipson on Evidence substantially replicated in paragraph 33–70 in the 13th edition of that work. Where relevant the text provides as follows:
On the other hand, cross-examination may let in matter which would be inadmissible in chief, e.g. the independent portions of a document used to refresh the witness’s memory. So, questions as to the contents of a document, put to a witness called merely to prove handwriting let in the whole against the cross-examiner; and if a plaintiff’s witness be asked in cross-examination, ‘didn’t you meet A. and didn’t he tell you so and so?’ A plaintiff in re-examination may ask what A. really did say, although he could not do so in chief because the defendant was not present.
I consider that I should have regard to the evidence of John O’Donoghue in all the circumstances.
Admissibility of the deceased’s diary
A further point was made by Mr Peart SC to the effect that a diary kept by the deceased and exhibited by John O’Donoghue in his affidavit should not be admitted because the deceased was not here to prove it and interpreting it involves speculation. Ms Cawley submitted, on behalf of the first named defendant, that the diary should be admitted, notwithstanding, because John O’Donoghue made no comment in his affidavit challenging its authenticity although he does comment on its contents. Moreover, in cross-examination John O’Donoghue conceded that some of the references to ‘T.’ in the diary were probably references to the first named defendant (known as ‘Tapsa’ by *476 the deceased) and not to other parties known to her whose names began with ‘T.’ as contended by him in his affidavit.
I consider that I should have regard to the diary not only because there is no suggestion that it is not indeed the diary of the deceased, but also because it is relied upon by both defendants.
Was there a reconciliation?
The first named defendant gives evidence by affidavit that the first significant step in the reconciliation which he says occurred with the deceased took place at Christmas 1993 after she had ended her relationship with Stephen O’Donoghue. He says he recommenced his matrimonial relationship from January 1994 sleeping with the deceased in the matrimonial bedroom (which was upstairs) as man and wife. He refers to the deceased’s diary for the year 1994 for the purpose of illustrating frequent references to himself throughout that year. He says he was maintaining the deceased and their children and that he bought her a Volkswagen Golf motor car. Subsequently a letter from Cavan County Council was produced at the hearing before me confirming that the car was registered in the name of the deceased.
He says he finished working in Lambay Estate in June of 1995 and then went to live with the deceased as man and wife at Three Mile Water working at the Blainroe Hotel and other places. He gave evidence that he worked in Japan for the first and last three months of 1996. His absence, he says, was in the context of a resumption of matrimonial co-habitation. When he returned he recommenced living at Three Mile Water with the deceased who had a mild stroke in August 1997 and subsequently suffered a brain haemorrhage and died at St Colmcille’s Hospital, Loughlinstown, Co Dublin on 6 September 1997.
He further states that as a consequence of her illness the deceased made him promise to her that he would keep the three boys, namely his two sons and the son of Stephen O’Donoghue together, and look after them. He has complied with this promise since her death residing with the three boys at Three Mile Water.
In oral evidence he said that he discharged the deceased’s overdraft with the Allied Irish Bank paying £10 per week and a further £5 per week to pay a Visa bill for her. He allowed her access to his account and opened a small joint account with the Credit Union in Wicklow. Bernard Mulcrone was a co-worker with him at the Blainroe Hotel which would appear to place the latter’s appearance on the scene in 1995. He was cross-examined as to his drinking habits and appears to accept in a general way that he drank regularly and on occasions too much. He accepted that he had a physical fight with Bernard Mulcrone because the latter was getting too close to his wife and admits that he lost his head on one occasion giving him a bruised face but not a broken rib as sug *477 gested. He clarified that he was not making any claim to the house at Three Mile Water as a family home but was making any claim to which he was entitled under the Succession Act.
He said that after the reconciliation he neglected to have any wills or documentation drawn up by himself and the deceased clarifying that they had recommenced co-habitation because she got sick and this would be the last thing he was asking for. He was not able to produce any documentation supporting his case that he had recommenced to live with the deceased as man and wife, for example, joint invitations or joint bank accounts. He became confused when questioned about the car which had been given to his wife and said it had been scrapped after she died. He believed that the deceased and Bernard Mulcrone were good friends but that they did not have a sexual relationship. He said that he shared a bedroom with his wife which was upstairs, that there was a second bedroom upstairs and also a landing upstairs which was used by Kevin, one of the boys. Bernard Mulcrone was working with him at the Blainroe Hotel in 1995 and on occasions, perhaps as frequently as three nights a week or more, he would sleep at Three Mile Water which was convenient to the place of work. On these occasions Bernard Mulcrone slept downstairs on the sofa in the living room.
Bernard Mulcrone gave evidence and agreed that he was a very good friend of the deceased but denied that he ever had a sexual relationship with her. He explained the occasion when he had the fight with the first named defendant as starting when the first named defendant saw him with his arm around the deceased. He denied that he was having a physical or sexual relationship with the deceased but did accept that the first named defendant might have misconstrued the situation. He said that the first named defendant slept upstairs in the house at Three Mile Water with his wife. He met Stephen O’Donoghue on three occasions including once at the Forge Tavern when Jack O’Donoghue was being brought to meet his father coming from England to see his son after many years. He did not remember the deceased saying or implying that she was having an affair with him at the meeting at the Forge Tavern.
Evidence was given by Stephen O’Donoghue father and guardian ad litem of the second named defendant. He was cross-examined on his affidavit and stated that his affair with the deceased commenced he thought in approximately 1990 and continued for two years and ten months. They parted because they were unsuited and were having rows and fought like cat and dog. He was the subject of a barring order in 1993, he said that the deceased slept with his son Jack and initially claimed that references in her diary (for 1994) to ‘T.’ were not necessarily references to the first named defendant who was known to the deceased as ‘Tapsa’. However, he conceded that a number of specific references indicating that ‘T.’ had gone to Lambay were possibly references to ‘Tapsa’. He referred to the meeting at the Forge Public House where the de *478 ceased, Bernard Mulcrone, himself, his new girlfriend and his son were present and where the deceased introduced Bernard Mulcrone as her new boyfriend. This was the day after his son’s birthday.
He said that the first named defendant did not sleep with his wife in the house but that the deceased, his son (Jack) and Bernard Mulcrone slept downstairs, all in the living room and that ‘Tapsa’ (the first named defendant) slept upstairs with his two sons. His source of information for this was the deceased herself. Clearly this evidence is hearsay but on the basis to which I have already referred, in my view I must take it into consideration.
This witness accepted that he consented to the first named defendant having custody of his son. He said he had no option but to agree to this because he had no way of winning custody of his son and the agreement meant that he could see his son for two weeks in the summer and one week at Christmas which was more than he had seen him prior to that.
He said that at the meeting at the Forge Tavern he had seen Bernard Mulcrone holding hands with the deceased and that in all his conversations (on the telephone) with the deceased she gave him no hint of a reconciliation with the first named defendant. It was simply a case that ‘Tapsa’ never really came up.
In his affidavit and again in oral evidence this witness emphasised the drinking of the first named defendant and the fact that he Stephen O’Donoghue used to have to cruise the pubs in Wicklow looking for him in order to bring him to meet his sons. He claimed his wife, the deceased, never wanted to see him and only tolerated him for the sake of the children.
I have had the benefit of seeing the witnesses give their evidence as well, of course, of considering the affidavits. In my opinion it is more likely that the first named defendant did effect a reconciliation with the deceased than not. The evidence on each side of this issue was less than ideal: it is surprising that the first named defendant was not able to furnish any documentation whatsoever supporting his claimed reconciliation with the deceased. His evidence was, however, corroborated in part by Bernard Mulcrone who said that the first named defendant slept upstairs with his wife and he himself specifically denied having a sexual relationship with the deceased as alleged by Stephen O’Donoghue. The diaries of the deceased for the year 1994 support, in my view, an ongoing weekly contact with the first named defendant.
On the other hand whilst admissible for the reason already referred to, the evidence of Stephen O’Donoghue is largely based on what he was told by the deceased on the telephone. The source of this evidence is not therefore available to be cross-examined. Furthermore, the impression gained by Stephen O’Donoghue was in one or two respects clearly incorrect. In my view the references to ‘T.’ in the diaries of the deceased for 1994 are indeed references to ‘Tapsa’, contrary to the contention of Stephen O’Donoghue. I accept the evidence of Bernard Mulcrone that he did not have a sexual relationship with the *479 deceased which, once again, runs counter to the impression of Stephen O’Donoghue.
Furthermore the fact of a reconciliation is corroborated in principle with the affidavit of the plaintiff, the brother of the deceased. Once again, of course, this evidence is based in part on hearsay but also in part on his occasional visits to the residence at Three Mile Water, Wicklow and on his contact with his mother and his late sister.
Having carefully considered the evidence I hold that the first named defendant and the deceased did recommence co-habiting as man and wife within the meaning of clause 11 of the separation deed and that this extended for ‘a continual period of twelve months’. In this latter regard I should say that I accept the first named defendant’s evidence that his absence in Japan for work was in the context of a re-established matrimonial relationship and in my view would not mean that this period of absence would break the continuity of the re-established co-habitation.
Is the first named defendant’s renunciation nullified?
The separation deed at clause 1 sets out three specific matters which are dealt with on the basis that the husband and wife ‘mutually covenant and agree with each other’ in relation to them. In my view I should look at the terms of the agreement itself to see what the parties meant by the word ‘covenant’. Clause 8 thereof also refers to a covenant to the effect that the parties ‘shall not at any time now or in the future apply to court for an order for judicial separation’.
Mr Spierin for the plaintiff submitted that it was open to the court to construe clause 1(c) of the agreement as a covenant by the husband and wife not, in the future, to make claims against the estate of each other. The renunciation and surrender would have effect not at the time of the making of the deed but at some time in the future. It was, accordingly, akin to a covenant strictly so called.
Ms Cawley submitted that in my interpretation of the agreement I should be influenced by the policy in family law statutes which is to encourage reconciliation. She made a number of specific references to statutory provisions to illustrate this submission.
In my view it was the intention of the parties to this agreement that in the event that they recommenced co-habiting as man and wife with mutual consent for a continual period of twelve months then their mutual renunciation and surrender of all or any rights they may have in the estate of the other under the provisions of the Succession Act 1965 should be rendered null. Accordingly I hold that the first named defendant’s renunciation and surrender contained in clause 1(c) of the separation deed is null in the events which have occurred.
In these circumstances the questions asked in the special summons will be answered as follows:
1(a) Clause 11 of the separation agreement became operative; *480
1(b) In these circumstances the renunciation contained at clause 1(c) of the separation agreement was rendered null and void by the terms of clause 11 thereof;
1(c) The one third share of the estate of Patricia Moorehead passing to the late Maria Moorehead (otherwise Maria Tiilikainen) is to be divided as to two thirds to the first named defendant and as to the remaining one third in three equal parts to the three children of the late Maria Moorehead (otherwise Maria Tiilikainen) namely Riki Tiilikainen, Kevin Tiilikainen and John (otherwise Jack) O’Donoghue.
In the Matter of the last Will and Testament of Frederick Howell
, Deceased
George Howell v Richard Howell
1989 No. 639 Sp
High Court
7 February 1992
[1992] I.L.R.M. 518
(Carroll J)
CARROLL J
delivered her judgment on 7 February 1992 saying: By his will dated 8 August 1966 Frederick Howell the testator provided as follows:
I give devise and bequeath my farm of land in the townlands of Drumpeak and Corinshigo together with the furniture and machinery thereon to my brother Joseph. I give devise and bequeath all my stock and any other assets I may have to my brother Richard.
He appointed his two brothers Joseph and Richard to be executors. He died on 3 August 1988. Joseph pre-deceased the testator having died on 26 June 1980. Probate was extracted by Richard on 17 January 1989.
*519
The question arises on the will whether the gift to Richard was a full comprehensive residuary gift. The plaintiff, another brother of the deceased, as one of the next-of-kin claims that the phrase ‘any other assets’ must be construed as meaning any assets other than the farm, furniture and machinery and, of course, the stock which is specifically mentioned. The defendant claims that the phrase ‘any other assets’ makes the bequest a true residuary gift.
The applicable statutory provisions are s. 89 of the Succession Act 1965 which provides that a will speaks from death unless a contrary intention appears, and s. 91 which provides that residuary bequests include lapsed and void gifts unless the contrary intention appears.
Reference to decided cases where other wills have been interpreted, is of limited help in construing a will. I agree with the procedure suggested by Lowry LCJ in Heron v Ulster Bank Ltd [1974] NI 44 at p. 52 where he says:
I consider that, having first read the whole will, one may with advantage adopt the following procedure:
1. Read the immediately relevant portion of the will as a piece of English and decide, if possible, what it means.
2. Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
3. If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
4. One may at this stage have resort to rules of construction, where applicable, and aids, such as the presumption of early vesting and the presumptions against intestacy and in favour of equality.
5. Then see whether any rule of law prevents a particular interpretation from being adopted.
6. Finally, and, I suggest, not until the disputed passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar words, rarely as binding precedents, since it has been well said that ‘No will has a twin brother’ (perWerner J in Matter of King (1910) 200 NY 189, 192), but more often as examples (sometimes of the highest authority) of how judicial minds nurtured in the same discipline have interpreted words in similar contexts.
Following that procedure, the immediately relevant portion of the will is ‘any other assets I may have’. As a piece of English that means any assets other than the farm, furniture, machinery and stock already mentioned.
Apart from the two bequests the will consists of an opening sentence revoking any earlier wills and a closing sentence appointing executors. There would be *520 absolutely no problem in construing the will if Joseph and Richard had survived the testator or if Joseph had survived and Richard had pre-deceased him. In the first case there would be a division of his entire estate where Joseph got the farm, furniture and machinery and Richard got everything else. In the second case Joseph would get the farm, furniture and machinery and the rest of the estate would go as on intestacy. The only problem arises in deciding whether the phrase ‘any other assets’ has sufficient generality or universality so as to make the clause a residuary devise and bequest.
Looking at the scheme of the will what was the testator trying to do? To my mind, when he went into the solicitor, it was with the intention of dividing his estate between his two brothers. He wanted one brother to get the farm, the furniture and the machinery and he wanted the other brother to get all his stock and any other assets. Is there any indication that his mind was ever directed to the residue or what would happen if one or other brother pre-deceased him? Did he mean to decide that if Joseph pre-deceased him Richard got everything including the farm, furniture and machinery, but if Richard pre-deceased him Joseph would still only get the farm, furniture and machinery. The answer can only be yes if the sentence clearly has the universality necessary for a residuary gift.
If one has recourse to the presumption against intestacy it is in conflict with the presumption in favour of equality. While the testator did show an intention to benefit only two of his brothers, is there any reason to suppose that he intended to benefit Richard more than Joseph by making Richard his residuary legatee, if Joseph pre-deceased him, but not Joseph, if Richard pre-deceased him?
In In re Atkinson [1942] IR 268 Gavan Duffy J construed a will where the testatrix after a number of legacies said
The residue I leave £10,000 to my sister M.F.A. the remainder to my nephews in equal shares. I also leave my sister M.F.A. my furniture, silver, contents of my bedroom and diamond crescent … and anything else I have that I have not willed.
He held that the gift of ‘anything else’ must in the context be confined to specific chattels of the common generic description of ‘things’ in ordinary language; choses in action were not included nor cash and the gift was not a general residuary bequest. He also held that the testatrix had made an effective residuary gift to the nephews who were entitled as residuary legatees to the benefit of the lapsed legacy of £10,000.
This case is of no assistance in construing the phrase in the present case since if both brothers survived the testator, he obviously intended that every asset not previously specified would go to Richard, whether it included choses in action or cash or other lands. Also in the Atkinson case, the testatrix used the word *521 ‘residue’ which was not used here even though it was a solicitor’s will. The learned trial judge said at p. 273:
No chancery pundit, warily picking his delicate way through the authorities, could have selected plainer language than the testatrix has in her holograph will to show that she meant to make a truly residuary gift, a disposition of that property of hers, of uncertain amount, upon which no other disposition operated under her will. She labels the disposition ‘The residue’, with brevity unsurpassed; her own untutored witness to the truly residuary character of the clause is conclusive.
The same cannot be said of the testator in the present case.
In In re Mulcair, McCarthy v Mulcair [1960] IR 321 Budd J construed a will in which a testator devised and bequeathed all his lands and the dwelling-house thereon to his wife for life and from and after her death in trust for such person or persons as he should by a subsequent will or writing direct. He also bequeathed all the cattle, stock, chattels and effects on the lands and anything else he might die seised, possessed of, or entitled to, to his wife subject to the payment by her of a sum of £1,500 to his executors in trust for such person or persons as he might by subsequent writing in his will direct and appoint. The testator never gave any directions as to the disposition of the remainder interest in the lands or as to the recipient of the sum of £1,500. The learned trial judge held that the gift of £1,500 was not an exception out of the residue but a charge on it which had failed and that the words ‘anything else I may die seised possessed of or entitled to’ constituted a true residuary clause from which the lands were not expressly or impliedly excepted and accordingly the remainder interest passed under that clause.
The learned trial judge said at p. 329:
Having considered the will in relation to the principles which are to be applied, I have first to decide, is the clause in question a true residuary clause? As I have already stated, I am satisfied that the words, ‘anything else I may die seised possessed of or entitled to’, mean anything I die possessed of in addition to the cattle, stock, chattels and effects on the lands. I am not overlooking the different language used in the bequests in the two clauses and I am satisfied that the words used in the residuary clause, ‘seised possessed of or entitled to’, are sufficiently wide to capture real estate.
Accordingly, I am satisfied that we find here a true residuary clause embracing the realty.
Those two cases cited are really examples of the truth of the observation that no will has a twin brother. I return to the scheme of the will considering what the testator was trying to do. I consider he intended to divide his estate between *522 the two brothers. The phrase ‘any other assets’ was used in the context of distinguishing what the division was to be between them rather than in the context of a residuary bequest.
The first question in the summons is ‘Are the words used in the clause in the second last sentence of the said will namely “I give devise and bequeath all my stock and any other assets I may have to my brother Richard” residual in respect of the estate of the deceased?’ The answer to that question is no.
The second question does not arise.
Re Midgley
[1955] 3 W.L.R. 119; 99 S.J. 434; [1955] 2 All E.R. 625
HARMAN J.: Hannah Midgley, a widow, made her will on August 9, 1950. She had no near relatives. She gave her residue to six persons, some of whom were relatives of hers and are in fact among the class of her next-of-kin, being children of aunts or uncles; the others were strangers. One of those strangers was Polly Buckley, of 24, Peel Place, Keighley.
After giving her residue to these persons, who cannot be described as a class, or even, I think, as a group taking in equal shares absolutely, the testatrix provides in the familiar manner that if any one of them dies in her lifetime leaving issue, such issue is to be substituted for the parent. She further provides that if any of them dies in her lifetime, not leaving issue, then there is to be an accruer of the share which would otherwise lapse. So she has provided for both events, and there could not be a lapse so long as any one of the six named legatees survived her by himself or his issue.
Six months later the testatrix made a codicil and recited in it that she had left one-sixth of her residue to Polly Buckley. She goes on: “I hereby revoke the bequest to the said Polly Buckley of the said one-sixth share of my residuary estate and in lieu thereof I bequeath to the said Polly Buckley a pecuniary legacy of £50 absolutely.” She then gives an additional legacy to a legatee already named in her will, and in all other respects confirms it.
She died on June 6, 1951, and the question is: what happens to the one-sixth of her residue given by the will to Polly Buckley, which amounts to something like £1,000? The contest is between the other residuary legatees and the next of-kin of the testatrix, the latter being represented for this purpose by the last two defendants.
Mr. Francis submitted to me that there are three classes of gift in these circumstances. First, a class gift, when the revocation of a gift to one member of the class will not make it less a class gift to the others and there will be no lapse. Second, a gift to A, B, C, D and E by name in equal shares, in which case if a codicil revokes the gift to one of them there will be a lapse of that one share. Third, an intermediate class where there is not a gift to a class, but something very like one, and the testator has shown a clear intention that those who survive him shall take. Then, if the codicil revokes the gift to one of that group, so to call it, there is no lapse and the gift is treated as though it were a class gift.
That last theory is supported by two cases. One is In re Whiting ([1913] 2 Ch. 1), before Joyce J., and the other is In re Woods ([1931] 2 Ch. 138), before Maugham J. In each of those cases, I think, the judge appreciated that he was making an exception to the general rule. Each felt that to do otherwise would be to defeat the testator’s intention, as he saw it; and they felt themselves free to accede to the view that an expression of intention that only those who were living should take was enough to push the gift over into the first category and take it out of the second category. In In re Woods it was easy to do that, because the beneficiaries were in fact a class. They were the daughters of the testatrix. It is true that she named them. She said, “My four daughters, A, B, C and D ” and continued, “or such of them as shall be living at my
<leath.” That is as near to being a class gift as makes no matter, and in fact it was argued that it was a class gift. Maugham J. said that he did not think he need decide that, because he felt that it was tantamount to one. If I may say so, it was easy to see in that case that it would have been denying the intention of the testatrix to hold otherwise; none the less the judge was at pains to distinguish the case.
It does not appear that Sykes v. Sykes ( (1868) L.R. 3 Ch.App. 301) was cited to the judge, although In re Forrest ([1931] 1 Ch. 162) was so cited, and that deals with Sykes’ case. Maugham J. said ([1931] 2 Ch. 138, 143): “This much, however, may be asserted of a gift to A, B and C and D ‘or such of them as shall be living at my death,’ that the testator is looking at them, if not as a class in the technical sense, at any rate as a group of persons who have got to be living at the death of the testator in order to take any interest under the bequest; and, if the testator is so regarding the persons named and by his codicil uses language which shows that one of the persons named is to have no benefit under the gift contained in the will, it does not, in my opinion, take a very long step to conclude that the other members of the group, using the neutral term, shall take the whole of the interest which he in the first instance was
<lesirous of giving to those of the group who should be living at his death.”
He then goes on to explain why it is that if the pecuniary gift be a gift to a class there is no lapse, and he says that the ground of the decision in those cases is that where there is a gift to a class ” the presumption is that the testator only desires those members of the class who shall be alive at his death to take; and from that the court concludes that he also desires that only those members of the class who are living at his death and capable of taking shall take. In my opinion the same result should follow in such a case as the present.”
It is said that in the two provisos here following the original gift the testatrix has equally provided that only those who survive her shall take; and that the step I am asked to take is no longer than that taken by Maugham J. I do not take that view. I do not think that I am at liberty to take that step.
Clauson J. in In re Forrest, which was decided in the same year, declined to take it, notwithstanding that Joyce J. had taken it earlier, and he explained that he felt himself bound by Lord Cairns’ decision in Sykes v. Sykes to hold that where there was not a class gift there was not any reason to prevent a lapse. In my judgment, that is so in the present case. It appears from Sykes v. Sykes, as reported at first instance, that there were in fact two provisos which were to the same effect as the two provisos in the present case. Yet Lord Cairns did not feel at liberty to treat the case as a class gift. I do not think that I am at liberty to do so either.
It seems to me that this is a gift by a will to six persons, not a class and not, I think, a group. It is true that, like most testators, this testatrix did not intend to die intestate: no testator does, except under very odd and exceptional circum stances. All that happened was that when she came to make a codicil she forgot to provide for the hole which it made in the structure of the will. Perhaps if it had been pointed out to her that she had made a hole she would have said, ” Yes, let it accrue ” or something of the sort; but I do not feel at liberty to impute to her an intention which I do not think she ever had.
Quite apart from that feeling, it seems to me that it is important that there should be uniformity in these matters and the less exceptions made to a general rule the better. This rule is a sound one and should not be departed from unless under the stress of very strong conviction, which I do not feel here.
Consequently, I hold that the testatrix died intestate as to one-sixth of her residue.
Re Kebty-Fletcher WT
[1967] 3 All E.R. 1076
STAMP J.: . . . My attention has also been called to a number of cases where a gift to A. for life has been followed by a gift to his children and the gift to the children has, by reason of disclaimer or invalidity of the prior gift, been accelerated. I must refer to some of them.
In Re Davies, Davies v. Mackintosh ((1957] 3 All E.R. 52), there was, as here, a gift to A. for life followed by a direction for division equally between his issue. A. disclaimed the life interest. Vaisey, J., held that the disclaimer
operated to accelerate the gift to issue. He also held that the acceleration operated to exclude after-born children and issue of A. The judge treated the problem as simply one of acceleration and did not explain the process by which he came to the conclusion that after-born children and issue were excluded, relying primarily on full v. facobs ( (1876) 3 Ch.D. 703) for that conclusion. I have read full v. facobs more than once. There the gift was a gift to a lady who attested the will for life and after her death to be equally divided between her children on their becoming of age. Sir Richard Malins, V.-C., held that the gift to the children was accelerated by reason of the fact that the lady could not take, and that the income was not undisposed of during their mother’s life. I can find no indication in the judgment, and the point does not appear to have been argued, that the effect of the acceleration was to exclude children born after the eldest, for the time being in existence, had attained a vested interest.
That question would indeed have been a future question which may never have arisen, and it does not seem to be that .the fact of acceleration involves the corollary that the class intended to take is altered. If, as a matter of construc tion, the testator intended all the children of the lady born in her lifetime to take, it would, so I think, be after the acceleration just as if the gift had been an immediate gift to the children of the lady living at the testator’s death who attained twenty-one and those thereafter born who attained that age (see for example, Scott v. Earl of Scarborough ( (1838) 1 Beav. 154) and the terms of the declaration made in that case). Again, in Re Townsend’s Estate, Townsend
v. Townsend ( (1886) 34 Ch.D. 357), which Vaisey, J., treated as to the same effect as full v. facobs, there was no suggestion that all the children of the life tenant, whenever born, would not take. Therefore, having given the matter the best consideration that I can, I conclude that neither full v. facobs nor Re Townsend’s Estate are authority for the view that acceleration has the effect
indicated by Vaisey, J., and I am left with the decision in Re Davies itself. In Re Taylor, Uoyds Bank, Ltd. v. fones ([1957] 3 All E.R. 56), Upjohn, J., expressed approval of the decision in Re Davies, but it was not necessary for him to do so and he was at pains to point out that the doctrine of acceleration does not permit one to misconstrue a will. The latter remark was, I think, part of the ratio decidendi of the decision of Upjohn, J.
I am content to treat the decision of Vaisey, J., as one applicable only to a case of acceleration. I am not prepared to extend it to such a case as the present where there has been no acceleration. The doctrine of acceleration is that all interests which fail or are undisposed of are captured by a residuary gift or go on an intestacy, but that a testator is presumed to have intended an acceleration of subsequent interests where a life interest fails in consequence of the donee being prevented by law from taking (see Re Crothers Trusts ([1915] LR. 53) ). As a matter of construction a similar result may follow where the testator himself by a codicil revokes the prior life interest. And in that case, and again as a matter of construction, the testator may be presumed to have intended the period of distribution among the class to be his own death so as to bring a further rule of construction known as Andrews v. Partington ( (1791) 3
Bro.C.C. 401) into operation. Re fohnson, Danily v. fohnson ( (1843) 68 L.T. 20}–on which Vaisey, J., in Re Davies relied as supporting the proposition that acceleration may, and does sometimes, alter the membership of the class-falls
into the latter category. It does not, however, in my judgment follow that because the revocation by the testator of a life interest may bring about both the results I have indicated, so will a disclaimer; and I confess to a doubt whether Re Davies was correctly decided.
It is, however, sufficient for me to say that although a disclaimer, being something within the contemplation of the testator, may, on the authority of Re Davies, operate not only to accelerate the subsequent gift to the class but also, as a matter of construction of the will, alter the composition of that class, it does not in my judgment follow that a disposition of a life interest, the terms of which cannot have been envisaged by the testator, and which may not have the former effect, nevertheless has the latter. The dispositions of the nephews’ life interests under the will of the testator could not operate over the capital of their shares or alter in any way the construction of the will. If one of those dispositions had extended to a nephew’s life interest in half his share instead of the whole of it, the question which has been discussed would have arisen with regard to that half, and no authority has been cited to me requiring this court to attribute to the testator such a prophetic vision as would enable me to hold that if the disposition by one of his nephews had operated over half instead of the whole of the income of his settled share, that half would be divisible to the exclusion of the nephew’s children born after a child attained twenty-one, but that the latter children would participate in the other half.
The dispositions here in question did not in my judgment operate to accelerate the interests conferred by the testator on the children of his nephews, any more than they would have done if they had been dispositions by way of sale in favour of a third party. Nor did they in my judgment alter the composition of the class of children intended by him to take. That class is in my judgment open to include children of a nephew born hereafter….
Re Basioli
[1953] 2 W.L.R. 251; 97 S.J. 80; (1953] I All E.R. 301
UPJOHN J.: . . . The sole question which I have to determine is whether the persons entitled to the property devised and bequeathed to Mrs. Basioli by her mother ought on her intestacy to be ascertained as at the date of her death in 1929 or whether they should be ascertained as though Mrs. Basioli had sur vived her mother, the testatrix, and died immediately thereafter, in 1940. As Mrs. Basioli’s son failed to attain the age of 21 years, if the former is the true view, the persons entitled to the estate of Mrs. Basioli are the plaintiff, as the personal representative of Mr. Basioli, who will take the lion’s share of the estate, representing the right of the surviving spouse to £1,000 and interest thereon and half the income of the estate during his life; and the estates of Mrs. Basioli’s parents, the testatrix and her husband, are also interested, and they will take the balance in equal shares. In the latter case, that is to say, if Mrs. Basioli is treated as having died in 1940, the defendants, i.e., her two sisters and her brother, are entitled on her intestacy. It is a question of construction of section 33 of the Wills Act, 1837.
[His Lordship read the section and continued:] Two views as to the true construction of that section have been expressed. One view, which has been called the narrow view, is that the sole object of the section is to give effect to the gift in the testator’s will and to prevent lapse, and that the section was not intended to affect or alter the administration of the estate of the person receiving the gift by imputing to that person an artificial date of his or her death. The alternative view as to the true construction of the section has been referred to as the wide view, and is that the predeceasing child of the testator must be treated, for all purposes in relation to the testator’s gift, as surviving the testator.
Authorities are to be found in support of both of those views. . . .
The next authority which, in my judgment, on a careful examination sup ports the narrow view, is In re Hensler, deed. ( (1881) 19 Ch.D. 612). The head note reads : ” A father by his will devised a freehold house to a son, and his residuary real estate to trustees in trust for other persons. The son died in his father’s lifetime leaving issue living at his father’s death, and having by his will devised all his real estate to his father:-Held, that as, under the 33rd section of the Wills Act, the son must be deemed to have survived the father, the property passed to the son absolutely under his father’s will, and became subject to testamentary disposition by the son : But that as by the will of the son the property was devised to his father, the devise by the son failed, and his heir-at law was entitled to the prorerty.” The judgment of Hall V.-C. is quite short, and I will read the whole o it : ” By virtue of the 33rd section of the Wills Act, the property passed under the devise in the father’s will as if the devisee had died immediately after the death of his father. The effect of that is that I must consider the son to have survived his father and to have taken as devisee. I must also consider that the property became subject to the son’s will, and included in the general gift therein contained. The son must be deemed to have had the property; and then the question arises whether he must by a legal fiction be taken to have survived his father for all purposes, or to have survived him only for the purpose of giving effect to the gift of the father. It seems to me that the object and the purpose of the 33rd section was to effectuate the will of the father, and that that object and purpose are satisfied by holding that the son took the estate. Effect would have been given to the will of the son in case he had left his property to someone other than his father and who in fact survived him, yet as he left it to his father the gift by the son fails, for I cannot hold that the section ought to be extended to any case beyond the one expressly provided for. It must therefore be declared that John Hensler the son took the property but died intestate as to it, and that the petitioner is entitled as his heir-at-law.”
I confess that I have some difficulty in following the grounds of the actual decision in that case, and I am not alone in that difficulty (see an article entitled “Section 33 of the Wills Act, 1837,” in the Law Journal Newspaper for 1941, at p. 252). The author of that article, however, treats In re Hensler, deed. as supporting, on the whole, the wide view. In that, in my judgment, the learned author was wrong. I think that it is clear from the judgment that Hall V.-C. would have held that a gift in appropriate terms by the predeceasing son to another person would have carried the father’s gift, even though that other per son, though surviving the son, predeceased the father, and that is consistent only with the narrower view of the section. Possibly, the actual decision may be supported on the ground that if, for the purpose of supporting the gift, the son is treated as surviving the father, it was impossible almost in the same breath to treat the father as surviving the son for the purpose of benefiting under the will; so that the father had to be treated as being under a special disability unlike any other object of the predeceasing son’s bounty.
The last case which directly supports the narrow view is In re Hurd ([1941] Ch. 196). The headnote is long, and I need not read it. I will turn, therefore, to the arguments and the judgment. It is plain from the arguments that no authority was cited to Farwell J., and he dealt with it, after what was clearly a very full argument on each side, as a matter of first principle. He said: ” Section 33 of the Wills Act, 1837, provides that the gift is not to lapse, but is to take effect as if the death of the legatee had happened immediately after the death of the testator. If those words be taken literally, it must, in the present case, be assumed that Sarah died in 1939, immediately after the death of the testatrix, from which it seems to follow that the legacy given to her shall be administered according to the law then in force. In my judgment, however, that is not the true effect of this section: its object and effect is to prevent lapse, and its result is that the gift, instead of lapsing, becomes part of the estate of the deceased person, on the footing that the legatee was alive at the death of the testatrix and was therefore a person to whom a legacy could be given. That result, however, does not, in my judgment, alter the position that, although Sarah is deemed, for the purpose of making this gift effective, to have been living in 1939, the share which she takes under the gift becomes none the less a part of her estate and must be administered as part of her estate in accordance with the law in force at the date of her death in 1923. Obvious difficulties might arise were not that the true effect of the section. For instance, if a person died intestate before 1925 and it became necessary to inquire who were the next of-kin and an inquiry was ordered, the whole matter was investigated, and the master’s certificate made finding who were the intestate’s next-of-kin, if subse
quently the estate is increased by a legacy given by a person who died after 1925 and saved from lapse by section 33, if the legacy is to be administered in accordance with the law after 1925, a further inquiry as to the next-of-kin will be necessary on the footing that the intestate’s death took place long after it actually did, and different persons may become entitled. On the whole I have come to the conclusion that that section applies only to the prevention of lapse. It is intended only to prevent the gift from not taking effect, and the result is that a gift which would otherwise have lapsed passes to the legal personal repre sentative, who takes it as part of the estate to be administered in accordance with the law applicable to that estate. The Wills Act, 1837, does not, in my judg ment, so apply as to alter the way in which the estate should be administered. It operates only to increase that estate and does not alter the persons entitled to it under the law in force at the intestate’s death.” …
To take an example, if a predeceasing child gives all his residue to X, who survives him but predeceases the child’s father, X will receive the residue of the child’s estate on the child’s death; but, when the father dies leaving the child a legacy which, on the true construction of the child’s will, falls into residue, then if the wide view be correct, X will not take the legacy but it wjll be undisposed of. Again, if the wide view be right, as Farwell J. pointed out, there may be two sets of next-of-kin, and equally under the child’s will there may easily be two classes of beneficiary; for example, if the child leaves a residue to a class, there may be one class at the date of his real death and quite a different class at the date of his notional or fictitious death. . . .
I must now turn to the authorities which are in support of the wide view. The first one is In the Goods of Mary Councell ( (1871) L.R. 2 P. & D. 314). The headnote reads : ” The deceased, a legatee under the will of her father, died in his lifetime, leaving issue living at his death. She also left a husband surviv ing her, who, however, died before the father, having made a will, in which he appointed executors who took probate of the same. The court granted adminis tration to the son of the deceased limited to the personal estate bequeathed to her by the will of her father, and dispensed with the renunciation or citation of the surviving executor of the will of the husband of the deceased.” The argu ment was: “Dr. Spinks Q.C. moved for administration to be granted to Edward Gough Councell, her son. The 33rd section, Wills Act (1 Viet. c. 26), enacts, that where a legatee being a child of the testator shall die in his lifetime, leaving issue, the bequest shall take effect as if the death of such legatee had happened immediately after the death of the testator. If that had been so in this case, Mrs. Councell would have died a widow, and her son would have been entitled to administration.”
From the report it does not appear that there was any formal or reasoned judgment by Lord Penzance, for the report merely continues by setting out the form of the letters of administration which Lord Penzance granted to Mrs. Councell’s son. The report then states: “He “-i.e., Lord Penzance-” further dispensed with the renunciation or citation of the surviving executor of the will of the said Thomas Inman Counce!!.” As the latter, or the executors of the latter, were the only persons entitled or interested to urge that the narrow view was the true construction of the section, it seems curious that he should have dispensed with the citation of them. It is clear that the matter was never argued before Lord Penzance, and it is also noteworthy that, although Pearce v. Graham ( (1863) 32 L.J.Ch. 359) had been decided some eight years previously, that case was not cited to him. . . .
I respectfully agree with the views expressed by Farwell J. in In re Hurd. In my judgment, the section is aimed solely at preserving the gift in the parent’s will, and it is not in any way concerned to alter the administration of the predeceasing child’s estate. The words in the section, “but shall take effect as if the death of such person had happened immediately after the death of the testator,” are, in my judgment, put into the section solely to explain and amplify the immediately preceding phrase, that is, “such devise or bequest shall not lapse,” and are quite inappropriate to alter the devolution of the child’s estate in relation to the parent’s gift by imputing, to the predeceasing child, death at a fictitious date. I am not, in my judgment, precluded from following the decision of Farwell J. by the decisions in In the Goods of Mary Councell and In re Allen’s Trusts ([1909] W.N. 181), for the reason, as I have pointed out, that they cannot be regarded as satisfactory decisions. I am fortified in the conclusion which I have reached that In re Hurd is to be preferred to In the Goods of Mary Councell and In re Allen’s Trusts by the views expressed by the editors of Jarman on Wills, 8th ed. (1951), Vol. 1, at p. 468, and of Theobald on Wills, 10th ed. (1947), at p. 560.
Accordingly, the persons interested on the intestacy of Mrs. Basioli are to be ascertained as at the date of her death in 1929; and I will declare that on the true construction of the will of the testatrix, and of section 33 of the Wills Act, 1837, the bequests and devises in the will of the testatrix in favour of Mrs. Basioli did not lapse, but fell into the estate of Mr . :Basioli as additions to her original estate and devolve on her intestacy in the same way as her original estate. The costs of all parties as between solicitor and client must be paid out of Mrs. Basioli’s estate in due course of administration. I am very much indebted to both counsel for their very careful research into the authorities and for their arguments on this interesting point.
Cases Advancement
McCabe v. Ulster Bank, Ltd. and Others.
[1939] IR 1
MAGUIRE P.:
This case is a somewhat difficult one, raising several points of law, and we are in a difficulty because neither in the Circuit Court nor here has the Court been favoured with any arguments on behalf of the real defendants. We have, however, had the points which arise fully argued by Mr. McGonigal.
The history of the case is short and is set out by Judge Sheehy in his judgment as follows:
” Mary Anne Lynch opened a deposit account in the Ballyconnell branch of the Ulster Bank in 1917 in her own name. Originally, I think, the amount was £50. On the 12th November, 1926, she withdrew the amount of the account, which I think had increased to £265, and lodged it in her own name and that of Father Brady.”
I pause here to refer to the fact that on this occasion the old lady used the same type of receipt which was used
in the subsequent transaction with which we are concerned. The form, as in Owens v. Greene and Freeley v. Greene (1),is favoured by the Northern Banks and it has the advantage that any one of a number of joint depositors can make withdrawals.
Judge Sheehy goes on:” On the 10th February, 1928, she again withdrew the amount of the account, which, I think, was then £250, and re-lodged it in the joint names of herself and of the three defendants.”
On this occasion we have the further bit of evidence that she filled up a form of request making it clear that she wished the money to be withdrawable by any one of the persons named as joint depositors. She used the word”either.” Although we have not got before us the deposit receipt handed to her earlier, I take it that it was precisely the same as the one now before us and contained the words “We promise to be accountable to them or any one or more of them.”
There is very little evidence of intention, and although I am somewhat doubtful, I think, having regard to the case of In re Grimes (2), we must deal with this case on the basis that there is a presumption that this old lady intended to benefit her daughters. Before the plaintiff can succeed he must dispose of this presumption. There is a difference between the case of a father and his child and that of a widowed mother and her child, and Jessel M.R. has so decided in at least one case. I, however, feel constrained to follow the decision of Johnston J., and so I hold that we must begin with the presumption of an advancement.
As regards the evidence surrounding the transaction, we have evidence that this lady had a small farm and this money in the bank, and that these three girls were in America, and that she was in correspondence with them. The evidence does not show when she was in correspondence with them. Now, it seems to me that the form of the deposit receipt itself suggests that she did not intend to part with dominion over these moneys. It was desirable that control should be in someone and it is reasonable to infer that she desired to keep control herself. The daughters knew nothing about it, but I do not know if it is reasonable to consider this fact. The previous deposit receipt was in the same form, and apparently this old lady withdrew the money and deposited it again in these names. I do not think it is unreasonable to infer that she did intend to retain control. If she had intended to benefit the defendants, she could have used the ordinary form of deposit receipt, requiring each joint depositor to be present to make any withdrawal, or she could have divided the money up. I am again doubtful of the weight of this evidence, but, adding all the evidence together, I think the reasonable inference is that she intended to benefit them by allowing them to have whatever was left when she died.
Accordingly the gift in my opinion was revocable and testamentary in character. It falls therefore within the cases of Gason v. Rich (1) and Owens v. Greene and Freeleyv. Greene (2). It cannot be upheld. In my opinion the decision of the Circuit Court Judge should be reversed and the plaintiff should have the declaration asked for.
O’BYRNE J.:
The question in this case is the ownership of a sum of £225 standing in the Ulster Bank in the joint names of Mary Anne Lynch and her three daughters. It is alleged in the indorsement of claim that “on or about the 10th day of February, 1928, the said Mary Anne Lynch placed money belonging to her and amounting to the sum of £250 on deposit account in the joint names of herself and the above-named defendants, Mary Donohoe, Bedina (or Bridget) Devine and Anne McGovern, in the Ballyconnell Branch of the defendants, the Ulster Bank, Limited,”and that “at the date of the death of the said Mary Anne Lynch the money standing to the credit of the said account amounted to the sum of £225.”
Now, it is thereby clearly admitted that the sum of £225 standing in the Bank at the date of the death was portion of the said sum of £250 so deposited in 1928, and accordingly the real question for determination is the ownership of the sum of £250 as and when it was deposited in the Bank. Prior to that deposit on the 10th February, 1928, the £250 was the proper money of Mary Anne Lynch, but when she deposited it in the Bank, she did so in the joint names of herself and her three daughters.
The first question for determination is whether the doctrine of advancement applies in this case. As I understand it, when the case was before the Circuit Court Judge it was assumed that the doctrine did apply, but, on the hearing of the appeal in this Court, Mr. McGonigal contended that it did not apply in the case of a widowed mother investing moneys in the joint names of herself and her child. There is a certain amount of conflict of judicial authority on this point, but the most recent case on the subject is the case of In re Grimes (1). In that case, after reviewing the authorities, Johnston J. decided that the doctrine did apply in such a case.
That decision is binding upon us, and I give effect to it without considering the preceding authorities. Consequently I am bound to assume that when Mrs. Lynch lodged this money in the joint names of herself and her three daughters she intended to confer on her daughters a benefitand an immediate benefitunless the evidence is sufficient to establish a contrary intention.
Now, the evidence is very slight: so slight that from an early stage in this case, I considered that the result would depend on whether or not the doctrine of advancement applied.
It appears that prior to 1928, these moneys were lodged in the joint names of Mrs. Lynch and one, Father Brady, the Parish Priest of the Parish in which Mrs. Lynch resided. They were withdrawn and lodged to the material account in 1928. Reliance has been placed on the fact that, prior to 1928, they were standing in the joint names of Mrs. Lynch and Father Brady, and on the fact that the form of the deposit receipt was similar in both cases. This fact seems to me to be of very little assistance. One is inclined to seek a reason for changing the account from the name of Father Brady, who lived in the vicinity, to the names of the daughters in America. It is obvious that Father Brady might be of assistance in operating the account. No such assistance could be obtained from the daughters. Father Brady was a bare trustee. Should the other defendants be held to be in the same position? If so, what was the object of changing the account? I can see no object in changing the names in the account if the daughters were intended to be merely trustees. Accordingly, so far as any antecedent evidence is concerned, I see none to rebut the presumption of advancement in favour of these children, but Mr. McGonigal has relied very strongly on the fact that subsequently to 1928, Mrs. Lynch operated the account alone and that several transactions took place to which she alone was a party. This was possible by reason of the form of the deposit receipt.
Now, it has been decided in Sidmouth v. Sidmouth (2)that one is not entitled to look at subsequent acts of the alleged donor in order to ascertain intention. In giving judgment in that case, Lord Langdale M.R. says at p. 455:”Subsequent acts and declarations of the parent are not evidence to support the trust, although subsequent acts and declarations of the child may be so; but, generally speaking, we are to look at what was said and done at the time.” The material date in this case is the 10th February, 1928, and the ultimate decision must depend on whether or not Mrs. Lynch meant at that time to make a gift in favour of her three daughters, and it is very questionable if we are entitled to pay any regard at all to what happened after 1928. But even if we do consider it, what does it amount to? The evidence amounts to this, that after that lodgment in 1928 Mrs. Lynch continued to operate the account and made some small withdrawals. We do not know if the daughters knew of these transactions, or if she accounted to them. It may be that on each occasion she acted with the knowledge and approval of her daughters. We do not know. The on us is upon the plaintiff and he has produced no evidence with regard to this. The only thing we know is that Mrs. Lynch operated the account. Is this fact sufficient to displace the presumption that an advancement was intended? In my opinion it is not. The form of the deposit receipt has also been relied upon. It seems to have been in that form to facilitate operations on the account. It may have been intended that the account could be operated by one as the agent for the others. Accordingly I have arrived at the conclusion that the evidence is not sufficient to rebut the presumption.
I see the force of what has been said by the President, and I must admit that if I were deciding this case without regard to the doctrine of advancement I would have arrived at a different conclusion.
Giving effect, however, to that doctrine, I am of opinion that the evidence is not sufficient to rebut the presumption, and accordingly I am of opinion that the Circuit Court Judge was right and that his decision should be affirmed.
The plaintiff appealed to the Supreme Court (1) on the grounds (inter alia) that the Circuit Court Judge was wrong in holding that a presumption of advancement arises as between a mother and her children, or, alternatively, that he was wrong in holding that such presumption was not rebutted by the evidence.
Supreme Court.
R
SULLIVAN C.J.:
16. Dec.
I have had an opportunity of reading the judgment about to be delivered by Mr. Justice Murnaghan and I agree with it.
MURNAGHAN J. :
This appeal brings before this Court in a rather precise way the question whether a rule of equity jurisprudence, which has on several occasions been accepted, and yet has been denied by high authority, should now be adopted as valid.
This alleged rule sets up in the case of a purchase by a mother in the name of a child a presumption sufficient to rebut a resulting trust.
I shall first briefly state the facts which bring the question before the Court, and then proceed to examine the authorities and the principles upon which they are founded.
The plaintiff sues as executor of Mary Anne Lynch, deceased, for a declaration that the sum of £225 lodged with the Ulster Bank, Ltd., in the names of the deceased, Mrs. Mary Donohoe, Mrs. Bridget Devine and Mrs. Anne McGovern was assets of the said deceased. Mary Anne Lynch was a widow, who resided at Killycleggan, County Cavan. She had a small farm with some stock, and a sum of money, in respect of which the question arises. She died on 25th September, 1932, having made a specific bequest of her farm, and having bequeathed her residuary estate for charitable purposes. The evidence was very meagre, both as to the relationship of the deceased, and as to the facts of the deposit.
Three of the defendants were daughters of Mary Anne Lynch, and were all married and living in the United States of America. So far as the evidence shows, they might have been brought up by their father, and have emigrated while he was alive. The defendants were not represented at the hearing, and beyond a statement that the deceased had written asking some of them to come home, no facts are in evidence beyond the mere relationship. There are, therefore, in this case no grounds for the view that the deceased had placed herself in loco parentisto her childrenmeaning by this phrase that she had undertaken to bring them up and provide for them.
The deceased lodged £50 on deposit in her sole name in 1917, and gradually added to this amount sums from time to time. On 12th November, 1926, she lodged £265 in the names of herself and Father Brady. The deposit receipt was in the form that it was payable to either of the persons named, and accordingly as between herself and the Bank the depositor could, if she retained the deposit receipt, always withdraw the money. There was no evidence, besides, of any declaration of intention to benefit Father Brady, and, as he was a stranger, equity would raise the implication of a resulting trust if he were the survivor while the money remained in the Bank. After about 15 months, i.e., in February, 1928, Mrs. Lynch drew out the money, then amounting to £250, and relodged it in her own name and that of her three daughters, the same form of receipt being adopted. Mr. F. C. Hartness, the Bank Manager, during this period, was examined at the trial, but he could give no account of the circumstances under which the change in the deposit was made. Between 10th February, 1928, and 6th September, 1932, the deceased withdrew and relodged varying sums, the amount last deposited being £225. All the lodgments were in the name of deceased and her three daughters and were in the same formpayable to any of them.
The learned Circuit Court Judge pointed out that the deposit receipt was in the same form as that in Owens v.Greene and Freeley v. Greene (1) in this Court; and he quoted from the judgment of Kennedy C.J. passages to show that either a relationship which would rebut the inference of a resulting trust or express declaration of present intention to benefit would affect the ownership of the depositors. He further said “in these circumstances the law is that I am bound to presume an intention to advance, which presumption may be rebutted by evidence to the contrary.”
On appeal being taken to the High Court, the President referred to the decision in In re Grimes (2), where Johnston J. held that there was a presumption of advancement in the case of a purchase by a mother in the name of her child, but the learned President took the view that this presumption was rebutted by the form of the deposit receipt, and that Mrs. Lynch intended to retain full dominion during her lifetime and to pass what was left to her daughters as survivorsan intention which would be invalid as it would be testamentary in character. Mr. Justice O’Byrne held that the doctrine of advancement applied, and that the facts of the case were not sufficient to rebut this presumption.
On appeal to this Court Mr. McGonigal has very fully opened all the relevant authorities, and these have been examined with care in the absence of the defendants, who have not appeared. I shall therefore proceed to refer to these authorities in order to ascertain upon what principle they are founded.
The leading case on this subject is that of Dyer v. Dyer (3).The decision in that case is, however, largely based on Sir Heneage Finch’s decision in Grey v. Grey (4). That was a purchase of fee simple estates by a father in the name of his son. In Finch’s Chancery Cases, ed. of 1725, at p. 341, the reason is given why such a purchase is for the son’s benefit: “Now, where there is no clear proof of any trust between the father and son, the law will never imply a trust, because the natural consideration of blood and the obligation which lies on the father in conscience to provide for his son are predominant, and must overrule all manner of implications.” At this time (1678) the Chancellor sought to arrive at a determination by considering whether the son had been fully advanced, in which case there might be a resulting trust.
Dyer v. Dyer (1) was a case of copyhold estate, determined in the Exchequer. Eyre L.C.B. delivered the judgment of the Court, and stated the rule of a Court of Equity in raising the implication of a resulting trust where a conveyance was taken in the name of one who did not provide the purchase money. He then said: “The cases go one step further, and prove that the circumstance of one or more of the nominees, being a child or children of the purchaser, is to operate by rebutting the resulting trust; and it has been determined in so many cases that the nominee being a child shall have such operation as a circumstance of evidence, that we should be disturbing land marks if we suffered either of these propositions to be called in question.” Later on in his judgment he pointed out “that distinction, therefore, of the son being provided for or not, is not very solidly taken or uniformly adhered to.”
In the case of Finch v. Finch (2) before Lord Eldon L.C. Dyer v. Dyer (1) was approved of. Lord Eldon said:”Where the purchase is in the name of a son, that purchase is an advancement prima facie; and in this sense, that this principle of law and presumption is not to be frittered away by nice refinements.”
I do not find, however, that Lord Eldon always stated the principle in precisely the same way, because in Riderv. Kidder (3), after referring to Dyer v. Dyer (1), he said:”But the case of a child was distinguished from that of a stranger, in which there is not that natural affection which would beat down the presumption, arising from the advance of the money.”
No case of a purchase by a mother in the name of a child appears in the reported cases until In re De Visme (4)in the year 1863. A mother living apart from her husband had invested the savings out of her separate estate in the names of her son and daughter. After the mother’s death the daughter, who was executrix, presented a petition by reason of her brother having become a lunatic, asking for a transfer to herself, as executrix of her mother, of the stock in the joint names. Counsel making the application submitted that there was no presumption that a purchase by a mother in the name of a child is intended as an advancement, and the Lords Justices made the order, but there was, I think, a stronger reason, as stated in the case, viz., that the mother’s object in making the investments in the names of her son and daughter was alleged by the petitioner to be the securing the funds from the control of her husband.
Sayre v. Hughes (1), decided by Sir John Stuart V.C. in 1868 is the first reported decision that the doctrine of advancement applied in the case of a widowed mother and her daughter. The Vice-Chancellor seems to found his opinion on the use by Chief Baron Eyre in Dyer v.Dyer (2) of the terms “parent” and “child” instead of”father” and “son,” and on the principle that natural affection is sufficient to rebut a resulting trust.
In Hepworth v. Hepworth (3), decided in 1870, a case of father and son, Sir John Malins V.C. referred to Sayre v.Hughes (1) as an authority.
In the case of Batstone v. Salter (4) where a widowed mother transferred stocks into the names of herself, her married daughter and her son-in-law, Lord Cairns used language which seems to imply that he allowed, as did counsel in arguing the case, the presumption in the case of a mother. For he said: “Whatever presumption there is in favour of an unmarried daughter in the case of a transfer to her, the same presumption arises in this case where the transfer was to a married daughter and her husband.”
Bennet v. Bennet (5) was strictly not a case of rebuttal of a resulting trust, but was whether a sum of money raised by mortgage and paid over to a son was a gift or a loan. The case was, however, dealt with on the same principles. Jessel M.R. examined the authorities and criticised the decision in Sayre v. Hughes (1). He quotes Lord Eldon, in Ex parte Pye (6), that a person in loco parentis is a person “meaning to put himself in loco parentis: in the situation of the person described as the lawful father of the child,” and, as explained by Lord Cottenham in Powysv. Mansfield (7), as “applicable to these parental offices and duties to which the subject in question has reference, namely, to the office and duty of the parent to make provision for the child.” Jessel M.R. points out that in Sayre v. Hughes (1) the presumption is supposed to be founded upon maternal affection as a motive of bounty, and his criticism is that, although this may arise from moral obligation, it is not a moral obligation which is enforced in a Court of Equity.
Although Jessel M.R. seems to me to push too far what was involved in the order made in In re De Visme (2)when he says:”All the Court of Appeal decided was that there was no such moral obligation in the case of a mother as the Court could take notice of as such,” His criticism deserves very serious consideration. The issue really centres about the point whether the presumption is to be rebutted by a moral obligation arising through natural affection or other causes, or whether the obligation must be that of a father, or one who has undertaken the duties of a father, to provide for his child.
Where a husband makes a purchase in the name of his wife there is no resulting trust, but in the earliest cases this seems to have been arrived at from an artificial rule that a wife could not be trustee for her husband. Where a wife deposits her money in the name of herself and her husband there is no presumption in favour of the husband. In Foley v. Foley (3), in the Court of Appeal, the Lord Chancellor said:”It is, no doubt, settled law that the onus lies on the husband to establish, as a matter of evidence to the satisfaction of the Court, that his wife paid this money into their joint names in order that it should be their joint property and should belong to the survivor.”Natural affection as a motive of bounty has not been regarded as sufficient to rebut a resulting trust where a wife places her money in the joint names of herself and her husband.
Soar v. Foster (4) was a case in which a man purchased stocks in his own name and that of his deceased wife’s sister, with whom he had gone through a form of marriage after Lord Lyndhurst’s Act (5 & 6 Wm. 4. c. 54) had made such a marriage null and void. Sir Page Wood V.C. recognised the moral obligation to provide, but held that it could not amount to a presumption sufficient to displace the resulting trust in Equity.
In the case of In re Grimes deceased ; Grimes v. Grimes (5)
Johnston J. held in favour of the presumption, but he noted the uncertainty prevailing in the minds of authoritative text writers, having regard to the conflicting decisions.
During the argument the inclination of my mind was to uphold as far as possible the presumption in the case of mother and child, but upon full examination of the cases I find it difficult to base the presumption upon any sound principle. Neither natural affection nor moral obligation has been consistently relied Upon to found the presumption, and I have come to the conclusion that the presumption must be based upon the obligation to make provision which a Court of Equity recognises in the case of a father, or of one who has assumed his obligation in this respect.
In many cases of widowed mothers very slight circumstances may be sufficient to place the widow in loco parentis, i.e., of having assumed the father’s obligation to provide. In such cases there will be a basis for the presumption, but in a case such as the present, where there are no circumstances to go upon save the mere relationship of mother and child, there is, in my opinion, no ground for an equitable presumption which will rebut a resulting trust.
In my opinion the appeal should be allowed and a declaration made, but in the circumstances costs should not be given against the defendants, who have not appeared to contest the matter.
MEREDITH J. :
It is unnecessary for me to restate the facts of this case which have been fully stated in the judgment of Mr. Justice Murnaghan which I have had the advantage of reading.
The claim of the three daughters depends entirely on their being able to rebut the presumption of a resulting trust in respect of the sum of £225, which the deceased placed on deposit receipt in the joint names of herself and them. They were not represented at the hearing, but it is necessary to dispose of their title by substantiating the resulting trust before the sum now standing on deposit receipt can be admitted to form part of the estate of the deceased. Consequently it has become necessary to consider whether the presumption of a resulting trust is not rebutted by the presumption of an advancement.
The question whether the presumption of advancement applies between mother and child in the same way as between father and child is one that has been much debated in the text-books, and the authorities are conflicting, and the point has not been decided buy any authority which is binding on this Court. Our decision will settle a vexed question so far as this country is concerned, and therefore it is necessary to consider it very fully. In doing so I do not think it profitable to draw inferences as to the opinions of eminent Judges from the use of the general word”parent” or the restricted word “father.” The broad fact is that the view that the presumption only arises in the case of a father, or person in loco parentis, and child, depends entirely on one clear line of reasoning, and the view that it arises also as between mother and child depends entirely upon another clear line of reasoning. Our task is to decide on the merits why one of the two lines of reasoning is to be preferred to the other.
The leading authority for the view that the presumption extends to the case of a mother and child is Sayre v.Hughes (1). The line of reasoning adopted in that case by Sir John Stuart V.C., and followed by Johnston J. in In re Grimes (2), and the only line of reasoning ever adopted in support of the extension of the presumption to the case of a mother and child, is most fully stated in Story’s Equity jurisprudence, and that statement is the most valuable because it seeks to get back to fundamental principles.
But the reasoning here is open to serious criticism, which, however, may be prefaced by an admission that the ultimate question, both as regards the presumption of a resulting trust and the presumption of an advancement, is one of presumed intention to make or not to make a gift, and, further, that the natural expectation, so far as based on natural affection, is as great in the case of the mother as the father. The criticism is that the reasoning on its face does not go the required length. It only shows an equality of strength so far as the question is one of expectation founded on natural affection, but it does not suggest why the strength of expectation in either case should be made the basis of a rule of law, instead of the matter being treated as one of evidence. If the mere fact of the relationship of parent and child is in itself sufficiently strong to “beat down” the presumption of a resulting trust, it would be more logicalif we are to look to what is ultimately in questionto say that the reason or justification for the presumption of a resulting trust does not exist in the case of what is capable of being regarded as a gift from parent to child, i.e., that the presumption does not arise in that case, and that the original statement of the rule should be limited accordingly.
Further, assuming that the question is to be treated as one of a well established general presumption which is to be beaten down by another presumption of law, then why should this rebutting presumption be termed a presumption of advancement? The reasoning under consideration stops short of any explanation of the introduction of a reference to “advancement,” though it is precisely this reference that is assumed to justify the existence of a rule of law instead of the rebutting of the presumption of a resulting trust being left as a mere matter of evidence of intention. The whole line of reasoning proceeds as if intention to make a gift and intention to make a gift by way of advancement were one and the same thing.
The reasoning on the other side is clearly indicated by Sir George Jessel M.R. in Bennet v. Bennet (1). It comes to this. The question is one of rebutting the presumption of a resulting trust, which is a presumption of law. It may be rebutted by strength of evidence. That, however, only leaves the question of rebutting a mere matter of evidence. But the Courts of Equity have recognised the obligation of a father to make provision for his child. It is a duty of nature, recognised by Courts of Equity. A gift in discharge of that obligation is an advancement. Where what could, if considered as a gift, be regarded as a gift by way of advancement, it will be so regarded, since an intention to fulfill what is a duty may reasonably be imputed as a matter of law. But the Courts of Equity have not recognised an obligation, or duty of nature, on the part of a mother to make provision for her childrenthey have regarded that duty as falling exclusively on the father. Gifts by a mother are by way of bounty and not by way of discharge of a debt. Hence in the case of a mother and child there is no foundation for presuming an advancement, whatever may be the strength of the natural expectation that bounty was intended, so in the case of a widowed mother, very slight evidence to rebut the presumption is required. Accordingly Sir George Jessel M.R. brushes aside the whole reasoning of Sir John Stuart in Sayre v. Hughes (2)with the observation: “That is not the question: there is no rule upon the point of strength, but the question is one of equitable obligation.”
This line of reasoning is beyond question formally unimpeachable, and the only objection to which it seems open is that it does not attempt to satisfy any enquiry as to whether Courts of Equity were originally justified in treating provision made by a father for his child as the discharge of a duty, and then making this discharge of a duty the basis of a presumption of law, as if the discharge of such a moral obligation were on the same level as the discharge of a legal obligation. Advancement is different from maintenance and support, and the provision which advancement has in contemplation goes far beyond anything resting on legal obligation. The reasoning in Bennetv. Bennet (1) does not touch the point that originally, at all events, in the case of a widowed mother or a mother with separate propertythe Courts of Equity might as convincingly, or unconvincingly, have recognised the moral obligation of the mother as one affording the basis of a presumption of law as it did in the case of a father. The fact remains that the Courts of Equity unquestionably did make a distinction and the reasoning ultimately takes its stand on the ground that the matter is not res integraand that it is now too late to enquire if originally Courts of Equity might not have taken a different course. If they had, then they might either have refused to recognise the moral obligation or that it afforded a sufficient basis for a rule of law, or they might have recognised the basis as sufficient in both cases.
To my mind this answer must be accepted. Whether the justification for the presumption in the case of father and child was originally satisfactory or not is not the question. That presumption has to be accepted, and the only question is whether a similar presumption of law should not be admitted in the case of a mother and child. Hence the crucial question is whether Courts of Equity do in fact recognise a duty on the part of a mother to provide for her children, for that is the only way of satisfying the special implication of an “advancement,” which is a present payment of something to which the person advanced is prospectively entitled. So far Courts of Equity have not recognised such a duty whether the question was one of redemption or satisfaction or of bringing into hotchpot under the Statute of Distributions: In re Ashton (2). It is now too late to assume such a duty simply because of the weakness of the grounds upon which it was originally assumed in the case of father and child, and if such a duty were assumed then, though it might not create any serious trouble on the question of rebutting a resulting trust, it would disturb much law in other directions. But once duty is out of the case nothing remains in but natural expectation founded on the relationship. However strong this presumption may be it still only leaves the presumption of a resulting trust one to be rebutted, in the case of mother and child, on the strength of the evidence and not as a rule of law on the presumption of an advancement.
It remains to consider whether the presumption of a resulting trust is not rebutted on the evidence.
First of all, this is a case of a widowed mother, and, as to such a case, Sir George Jessel M.R. said in Bennet v.Bennet (1): “In the case of a motherthis is the case of a widowed motherit is easier to prove a gift than in the case of a stranger: in the case of a mother very little evidence beyond the relationship is wanted, there being very little additional motive required to induce a mother to make a gift to her child.”
Is that small modicum of evidence forthcoming in the present case? First of all, this is a case of transfera transfer by the deceased from the name of herself and Father Brady into the names of herself and her three daughters. That transfer is unintelligible unless the deceased intended to confer a benefit on the daughters at least in respect of so much of the money as she did not withdraw during her life. In a case of transfer Sir W. M. James L.J. said:”Is it possible to reconcile with mental sanity the theory that she put £250 into the names of herself and her companion, and £250 into the names of herself and defendant, as trustees upon trust for herself? What trustwhat object is there conceivable in doing this? . . . No jury would or could be found who would hesitate to say that the thing was done by way of gift and not trust”: Fowkes v. Pascoe (2). Then there is the additional fact that the three daughters were resident in America. The theory of changing from Father Brady, who resided within the jurisdiction, to three trustees resident outside the jurisdiction, is palpably absurd. But once there is evidence, from the circumstances of the transaction, or otherwise, to rebut the presumption, the whole question is at large, and the Court has to look at the actual facts and draw the inference which seems most natural. The position is clearly stated by Sir G. Mellish L.J. in the case just mentioned:”When there is once evidence to rebut the presumption, the Court is put in the same position as a jury would be, and then we cannot give such influence to the presumption in point of law as to disregard the circumstances of the investment, and to say that neither the circumstances nor the evidence are sufficient to rebut the presumption”: Fowkes v. Pascoe (1).
Approaching the matter in this way the conclusion is to my mind irresistible that the deceased intended to confer on her three daughters a contingent benefit by way of survivorship to so much of the money as she choose to leave intact. But as she kept control of the deposit receipt and made no statement of her intention there is not a shred of evidence that she did not reserve the right to withdrawas in fact she did as to a small sumso much of the money as she pleased during her lifetime. That being so, the principle of Owens v. Greene and Freeley v. Greene (2)clearly applies.
Accordingly I am of opinion that such intention to confer a benefit as may be inferred from the evidence is not sufficient to rebut the presumption of a resulting trust.
GEOGHEGAN J. :
I concur in the judgment of Mr. Justice Murnaghan.
Walsh v. Walsh
Gavan Duffy J.
[1942] IR 405
GAVAN DUFFY J.
17 June
This is an issue, directed in the course of the administration of the estate of one, Pat Walsh, junior, who died in 1937, to determine the title to certain assets, including moneys standing on deposit in his sole name at a bank when he died. And the first matter to be considered is the estate left by his father, Patrick Walsh, senior, who died in 1912. Both father and son died intestate.
Patrick Walsh, senior, died at the age of 63, leaving a widow and eight children, all of age. He possessed a small farm of some 51/2 Irish acres at Maolais, Co. Mayo, where he lived with his wife, his daughters Bridget and Nora, and his sons, Michael, Pat, Tom and John. Michael seems to have been unwell for some time and Pat was his father’s right hand man. Two other children, James and Mary (Mrs. Joyce), had left home to marry some years before their father died, so had Bridget (Mrs. Prendergast), who, however, returned through ill-health to live in the old home ten years or more before her father died. At the father’s death there was money on deposit in a bank at Ballinrobe, the nearest town, some six miles away from the homestead, and it stood in the joint names of Mrs. Patrick Walsh and her son, Pat; the title to this money raises an important question. There were also some chattels at the farm of Maolais, of which I am asked to determine the ownership.
Patrick Walsh, senior, with his little farm, had been a poor man for many years, so poor that when his eldest son, James, married in the early nineties he was able to give the boy only £25, and of that sum only £20 at once; as James puts it, “we had to go working for ourselves and for the house from 11 years on, every one of us; 51/2 acres would not keep us going; any money I earned went to my father.”But, as the boys grew up, the position of the family improved and its income was supplemented by sales of produce, by grazing operations and by timber work. Pat was a capable and active young man and in the later years, when his father’s health was poor, he appears to have extended the family’s grazing ventures and to have developed the timber undertakings considerably, taking some timber contracts in his own name. The bank deposits are a faithful barometer of the rising fortunes of the family in the early years of the century. The father kept no current banking account and the ordinary requirements of the household must have been met from the produce of the farm and from loose cash kept at home. But in the year 1900 he opened a deposit account in the Ulster Bank, Ballinrobe, with a sum of £120, lodged in the joint names of himself and his wife. He deposited further sums from time to time and withdrew money occasionally, but by July, 1912, there was a balance of £730 on deposit, representing a succession of savings through the years, as the result, no doubt, of successful deals in cattle and of timber ventures. In 1909 a sum of £105 was placed on deposit at the Bank of Ireland, Ballinrobe, in the joint names of Patrick Walsh, senior, and his son, Pat; this account was drawn upon only once until 27th July, 1912, when it stood at £200, as the result of the lodgment of a further sum of £100 in December, 1910. The moneys on this account would look like an advancement to Pat, but for the fact that they were merged in the principal account and must share its destination. On 27th July, 1912, very shortly before the death of Patrick Walsh, senior, the sum of £200 was transferred from the smaller joint account to the larger one in the names of husband and wife, thus raising the balance on that account to £930, and on the same day that account was closed and £730 and £200 were transferred to a new account, with a credit of £20, opened five days before at the Ulster Bank in the names of the wife and the son, Pat, without the name of Patrick Walsh, senior. I am asked to say that the presumption of advancement applies to all these moneys.
No doubt, the presumption of advancement to a wife or son is very strong, but a principle of law drawn from a different civilisation and more appropriate to persons with another social outlook and greater affluence must yield to the realities of Irish country life, which lend themselves to a ready rebuttal of the presumption; and, upon the facts, an assumed intention to advance here would be in violent contradiction with the manifest probabilities of the situation. The moneys on deposit at the Ulster Bank from 1900 to 1912 were at all times payable to both the holders or either; in fact some of the requisitions in connection therewith were signed by the wife; but it is significant that the sum to the credit of this account fluctuated considerably, so that the money was very far from being a gift of definite value, if it is supposed to have been a gift. We are dealing herea most material factnot with a purchase of stock in joint names, but with the only banking account of the master of the family, if I except the small account in his own and Pat’s names; there was no other repository to receive the growing profits from the work done by the family; and the money was beyond question the family nest-egg. Perhaps the object of the original deposit in joint names was to facilitate dealings in case of death and also to avoid death duties, and the transfer into the names of mother and son was probably made with similar ends in view at the imminent approach of death; but there is nothing necessarily reprehensible in a design to avoid this taxation; see McEvoy v. Belfast Banking Co. (1); nor, I think, is there anything unusual among our people in a device of this sort for the purpose, so that the plan in the intestate’s mind is quite intelligible, and it was natural that measures should be taken to safeguard the hard-earned family treasure, while keeping it in a place of safety and ready accessibility.
In applying English law to the facts, one has to begin by recognising the outlook of the persons immediately concerned. One of the persistent characteristics of Irish country life, perhaps, indeed, of peasant life elsewhere, is the prevalence of family feeling, the intense feeling of the family for the family; whatever may be the outlook in the towns, that essentially Christian society of our countryside treats the family in actual practice as the basic unit of the social order; that approach to the problem of life was indigenous, natural, traditional, among the unspoilt sections of our people long before the Constitution proclaimed it, though a very human avarice, understandable among men and women who earn their money hard, may at times be a competing factor. The father’s headship of the family was well understood and accepted without question. Every member of the young family at home had to work hard for the common weal, except during illness, and would do so as a matter of course; and, as a matter of course, the fruits of that labour would be regarded by all concerned as belonging to the father, who undoubtedly thought himself to be the owner, not only of his little homestead, but also of the family funds, the produce largely of his children’s work, so long as they remained at home. His right to cut off a child who misbehaved would not have been questioned, nor perhaps his legal right to cut off any child. But the natural anticipation would be that his property would go to his wife and the children at home and there is nothing to suggest any other intention here; the children were from a very early age the architects of his better fortune in old age; five of them were at home working; and to me it seems ludicrous to suppose that he meant arbitrarily to commit the injustice of depriving four of them of their just share in his principal asset in favour of his wife and of the son who acted as manager for him. In my judgment the presumption of advancement is effectually rebutted by circumstances of a kind familiar to us all, and the property in the moneys on deposit in the joint names of the wife and of Pat results to the father and those moneys form part of his assets on his death. Pat became head of the house and master on his father’s death; his mother still occasionally signed the bank deposit requisitions, and Nora kept for Pat the key of the box which held the deposit receipts. She and her mother, Michael, Pat, Tom and John were at home, and the invalid Bridget. Family life went on exactly as before, the father’s debility having left Pat virtually in control for some years. The mother, aged about 60, was fit for work at home with the help of Nora, a hard-working girl, who occasionally sold produce in Ballinrobe; John also worked mainly at or near home. The family continued to rely on its familiar resources, grazing and dealing in cattle and, until Tom went away, cutting and hauling timber, generally under contracts taken in Pat’s name and carried out by Pat and Michael and Tom, with occasional aid from John, and with the use of the family horse and cart, while saws were supplied by the other parties to the contracts. And surplus moneys continued to be paid from time to time into the bank on deposit.
The old home thus remained the family centre, with the mother of the family as presiding genius and the executive authority vested in the practical and efficient son, Pat, whose orders were law; everyone had his or her part to do and the functions of each member of the family group were well understood; the continuity remained unbroken. The facile and quite natural arrangement after the death of the father, under which everything goes on as before, with the most capable son in charge, is not uncommon. The family remained the unit and every member was expected to do his or her share of labour as before without pay of any kind, receiving only his or her humble keep and lodgment and the necessary apparel. Pat held the purse, handing out a few shillings for petty needs to a brother or sister on occasion; the home supported everyone and it was everyone’s home, though the energetic young men were not content to let the family subsist on the fruits of the little homestead alone. Each working brother and sister would look forward to a time, as John has testified, when (probably on marriage) he or she would get his or her “deal” and settle on another farm, receiving by way of endowment such sum as the family could afford at the time, or, alternatively, would remain to enjoy the family property alone after all the others should have had their portions; their mother for her part probably expected to continue to live in the old home and to end her days there with her children or such of them as should stay on with her. The recurrent problem is to fit that pastoral scheme of life into our utterly alien system of property law.
The legal relationship of the parties under such circumstances as these, in relation to pure personality, has not been clearly settled in the Irish Courts; that relationship must necessarily be based upon an understanding between the parties after the father’s death, a tacit understanding but a real one. Lawyers may feel inclined without further inquiry to say at once that the family co-workers were partners, because we are accustomed to classify relations under the ordinary legal categories, but that classification does not fit the facts; nobody can seriously maintain that the Walsh family in the running of its little farm was a firm, and I fail to see how the cattle operations, of a sort carried on by similar groups in many parts of Ireland, can have converted the family graziers into a firm. A firm consists of persons carrying on business in common with a view to profit, and it is for gain that the firm is made: that was not the position of the family at home; of course, there was a hope of making money and there was a risk of loss, but the essence of the combination was the fact that these persons were one family, who were working together for the sake of the family and because they were one family; the purpose of gain was an incidental; and, whatever may be said as to the grazing and timber, they were not, so far as the home farm was concerned, carrying on a”business” at all.
I cannot possibly accept the view that the proceeds of the timber contracts were the sole property of Pat, in whose name those contracts (when the timber work was done by contract) appear to have been made. The whole concern, farm, grazing and cattle dealings, and timber work was one family undertaking, whatever peculiar devolution our law may impose upon the family’s interest in the Maolais farm land, and there was a common fund at the bank for the surplus receipts of that common undertaking and, when occasion arose, for its expenditure. It is possible to assimilate the timber operations to a partnership; that was not the ordinary work of the farmer and grazier and it required journeys to places quite outside the home radius; only three sons appear to have participated regularly in these labours, though the fourth, I think, gave occasional help, as I have already noticed. But, if I call this a partnership, I must face the fact that, as I believe, Pat, the master, would not have tolerated any attempt by a brother, without express consent, to pledge his credit or otherwise act as agent of the group. However, it is not in fact practicable to differentiate the timber work from the other labours of the family; all these labours must be brought into one category, covering the three kinds of activity on which the members of the family were engaged, until 1916, when Tom left the farm and set up for himself.
I hold that the true relationship, as a matter of law, was that of co-owners of the common undertaking, and that this co-ownership constituted no partnership. But the parties were tenants in common; the rule has been established for more than 200 years that “in all cases of a joint undertaking or partnership, either in trade or in any other dealing,two or more persons who make a joint purchase will be considered in equity as tenants in common”: Lake v.Gibson (1) (the words in italics are italicised in White & Tudor, Leading Cases, Vol. II, 9th edn., at p. 885). Though there was here no purchase by the co-owners, I think the principle of the rule can appropriately be applied, and that the rule fits this case.
Who then were the co-owners? The answer is not easy, but I think the right answer is:The mother, Nora, Michael, Pat, Tom and John. While I cannot cut out the mother altogether, neither can I reasonably attribute to her the same third share of profits as she takes by law in her husband’s assets, because, for instance, one cannot, in evolving a tacit understanding, believe that Pat was spending long days on the felling of trees away from home, to give his mother the lion’s share of the resulting profits. And, if she is to share, she will naturally share as one unit in a group of six, or, after Tom’s withdrawal, five, co-owners, in much the same way as the law would treat her as one unit with each of her children, if the assets of a child dying unmarried and intestate after the father’s death had to be distributed among the next of kin. The mother and Nora contributed their respective quotas to the common weal by their home work, thus liberating each of the boys for his rougher labours.
Nora is equally entitled to a single share and each of the four boys takes one share at the outset. As to Bridget, I have felt some difficulty; dealing with persons who have let their rights fade into obscurity over a long period, I must act on the probabilities in the light of rather tenuous evidence; I gather that Bridget came back to Maolais after the birth of her third child, because she was ill, and lived there for some 20 years until her death, which is put in the year 1920, a permanent invalid; if she did at times get out of bed, she was probably unable to give any substantial help. Her father had given her a dowry of £60 on marriage and I must hold that she was accepted at home out of kindness and family feeling, but has no title to be classed as a member of the new, working family group, formed at Maolais after her father’s death.
The fact that James and Mary and (after 1915) Tom settled down quite close to the old home and continued to be in touch with the family at home is worth noting as conclusive evidence of their acquiescence in the new state of affairs, prevailing for many years, after the death of their father. Tom says he married three years after leaving home; he was in England for a short time before he left in January, 1916; the timber work begun about 1903 was given up about 1915. No accounts were kept and the timber and cattle profits cannot possibly be segregated.
The joint deposit account at the Ulster Bank continued, as it was during the life of Patrick Walsh, senior, to be the repository of the surplus profits of the family at home and continued to be drawn upon occasionally,for family purposes, as I assume. In October, 1914, the sum had risen to £1,039, and that sum was withdrawn, by reason of the war, and it appears to have been kept for safe custody at home. After the war, in December, 1918, a sum of £700 was lodged on deposit with the Ulster Bank and another sum of £700 on deposit with the Bank of Ireland, both in the joint names of Pat and his mother. These were certainly the moneys withdrawn more than three years before, with accretions. In July, 1921, the Ulster Bank account was closed by the withdrawal of £623, whereof £523 was lodged to the existing joint account at the Bank of Ireland, the £700 in which had by this time swollen to £1,273; the resulting total of £1,760 remained untouched in the bank until October, 1926, when, after the death of the mother, the whole sum was transferred to a small deposit account in Pat’s own name at the Bank of Ireland; this account had been opened in 1921 in Pat’s name with £100 and at the date of the transfer the account was in credit to the amount of £380. This account once increased by the £1,760 did not vary much until it was depleted by over £1,000 in January and February, 1931, and by the time of Pat’s death in 1937 it stood, after gradually dwindling, at £1,113. The operative family accounts, which from time to time received accumulated profits and paid disbursements not conveniently payable out of the ready cash in the house, were, from 1912 to 1914, the joint deposit account with the Ulster Bank; from 1918 to July, 1921, the joint deposit account with the same bank; and, for lodgments, the joint deposit account with the Bank of Ireland, and from that time until Pat’s death in 1937 the account of deposits in his sole name at the Bank of Ireland. Pat also opened at the Ulster Bank a small deposit account in his sole name in 1931, with a sum of £200, but I find no sufficient evidence to connect this account, which had £100 to credit when Pat died, with the moneys of his father nor with those of the family co-owners, and the balance belongs to Pat’s estate.
I have now to consider the ownership of the sum of £1,113 on deposit at Pat’s death and the rights of the parties interested in the sum of £950, the deposits belonging to his father’s estate, but reducible by the funeral expenses and by the estate duty and costs of grant of administration obtained in 1931. I hold that Pat and his mother were fiduciary owners, on Patrick Walsh, senior’s, death, of his deposit moneys then standing in their joint names, and that the cestuis que trustent were the owner’s widow and his eight children in the proportions fixed by law upon intestacy; I base this decision on the principle underlying In re Tidd (1)and Hooke v. Cross (2). The direct consequence is that no Statute of Limitations could bar the claims of the persons entitled, so long as Pat retained the money, which, as I have indicated, is easily to be traced through successive bank deposit accounts from 1912 to 1937; and there was at all times, while the deposit accounts existed, enough money to the credit of these accounts for the discharge in full of this fiduciary obligation. Pat, after his mother’s death, continued to be the fiduciary holder of these moneys.
On the same principle Pat and his mother, and afterwards Pat alone, must likewise have been fiduciary agents for the members of the family group constituted in 1912 and of the successive family groups which replaced the group of 1912; the surplus earnings of each group were in Pat’s hands for the co-owners and were by him deposited in the bank, at first in his mother’s name and his own, a clear recognition that the moneys were not his own alone, and afterwards, in his own name. It is one thing for an ageing man to deposit money in his own name and that of his wife and quite another for an active young son to place money to the joint credit of his mother and himself. Here the cestuis que trustentwere the persons from time to time constituting the family group, and the matter is complicated, as we shall see, by a number of changes in the constituent elements of the family at home. In my view, as each group was dissolved by the death of a member or the retirement of a member, a new group of co-owners succeeded it, but the rights of the next-of-kin of a dying member, intestate, were crystallized by the dissolution occasioned by the death, with the result that the dying member’s share of bank deposits in the hands of the fiduciary agent, Pat, ascertained at the moment of death, was untouchable by the survivors, forming a new group of co-owners, and was separate trust money, though not segregated in fact, in the same way as the deposits of Patrick Walsh, senior, constituted separate trust moneys. No Statute of Limitations could apply, so long as the moneys were there. One singular feature distinguishes the trusts attaching to the moneys which have crystallised from the trust attaching to the moneys earned by and deposited for the working family group for the time being; that feature is the very wide discretion accorded by universal consent of the parties interested to Pat with regard to the money of the working family group for the time being and by every such group in turn; Pat up to the time of his death was in a very true sense the managing director of the family operations, the limits of his powers would be hard to define with any precision, but it is clear that he was the person to determine what moneys should be withdrawn from deposit for family expenditure, as occasion required, and what moneys should in justice be paid to a retiring member of the family group by way of giving him his “deal”; whatever the limits of the authority given tacitly to Pat, his power on settling with an outgoing brother fell short, I think, of a right to give him so much money as to do a manifest injustice to the other members of the group. His power certainly did not extend to a raid upon the crystallized funds, but I do not think that he in fact made any such raid.
[The remainder of the judgment is not of general interest; it dealt with the rights in the deposit moneys of the members of the family group at successive stages of its history; the principle of Betjemann v. Betjemann (1), was applied to entitle Michael Walsh to recoupment out of Patrick Walsh junior’s estate in respects of an overpayment made in 1931 by Patrick Walsh, junior, on settling with his brother John out of family group deposit-moneys, whereby Michael Walsh appeared to have lost upwards of £150; Patrick Walsh, junior, was held not to have overpaid himself out of family group profits and his estate was held entitled to certain lands purchased by Patrick Walsh, junior, with his share of such profits.
The judgment then considered the rights of the parties to growing crops and farm implements representing those left by Patrick Walsh, senior, and, while declining, in the absence of necessary parties, to give final judgment as to the ownership of live stock existing at the death of Patrick Walsh, junior, the Judge outlined a scheme of settlement on the basis that such live stock was part of the assets of the family group co-owners.]
Cases Gift Conditions
In re De Vere’s Will Trusts
[1961] IR 225
Budd J. 2
BUDD J. :
22 Nov.
This is a summons in which questions are asked as to the validity of a name and arms clause in the will of Robert Stephen de Vere. The testator made his will, dated 30th November, 1934, and appointed as his executors and trustees thereof his wife, Isabel Catherine de Vere, and his cousins, Dudley Spencer Perceval, Donough Richard O’Brien and James Burke Cole. He died on the 15th September, 1936, and probate of his will was granted forth of the Principal Probate Registry on the 14th January, 1943. Having made certain dispositions with which I am not here concerned the testator, by clause 6 of his will, devised his Curragh, Bohard and Courtbrack estates and all other real estate to the use of his wife, Isabel Catherine de Vere, during her life with remainder (the only one here relevant) to the use of any one or more of his cousins thereinafter named or their respective issue for such estates or estate, interests or interest and in such manner as his wife should by deed or will or codicil appoint, with remainders in default of appointment.
Then by clause 8and this is the principal clause I have to construehe provided as follows:”I declare that every person who under the limitations hereinbefore contained becomes entitled as tenant in tail male or in tail by purchase to the possession or the receipt of the rents and profits of the premises hereby settled shall unless prevented by death or accident take use and bear and continue to use and bear in all deeds and writings which he or she shall sign and upon all occasions the surname of de Vere either without any other or with and after any other surname and also use and continue to use the arms of de Vere or quarter the same with his or her family arms and apply for and endeavour to obtain the Royal licence or take such other steps as may be requisite to authorise the user and bearing of the said surname and arms AND FURTHER that in case any person becoming so entitled shall refuse or neglect to take use and bear the surname and arms aforesaid or to take such steps as aforesaid or shall at any time discontinue to use and bear the surname and arms aforesaid then and in every such case if the person who shall so refuse or neglect or discontinue as aforesaid should be tenant for life the estate for life of that person and all powers annexed thereto shall absolutely determine and become void.” There follow provisions for the shifting of the estate should such aforesaid determination take place. The clause then continues:”Provided also that in every case (except a case of discontinuance to use and bear the surname and arms aforesaid) one year from the date when the obligations became binding shall be allowed for, compliance therewith and (except in a case of discontinuance as aforesaid) the proviso for the cesser of estates shall be postponed accordingly but shall take effect immediately upon the expiration of such one year if the obligations have not then been complied with.”
By clause 11 of his will the testator left certain chattels as heirlooms in such manner that the same should go and devolve in the same manner as if they had been freeholds of inheritance and had been included in the devise in settlement thereinbefore contained.
The testator died without issue and, without having altered his will. His widow, Isabel Catherine de Vere, made a deed of appointment relating to the property on the 22nd January, 1943, but we are not now concerned with that deed. On the 2nd July, by deed poll of revocation and appointment, in exercise of the powers given by the testator’s will, the widow revoked the deed of appointment of the 22nd January, 1943, and appointed in favour of Morrogh Vere OBrien, the first-named defendant in this suit.
By this deed Isabel Catherine de Vere appointed and directed that all the property subject to the trusts of the testator’s will should go to Morrogh Vere OBrien for his life and after his death to the first and every other son of the said Morrogh Vere OBrien successively according to seniority in tail male, with remainders over.
This appointment was subject to the following proviso:”The provisions of the said will as to taking and using the surname and using or quartering the arms of de Vere and the determination and avoidance of the estate of any person refusing or neglecting to take and use the said surname and use and quarter the said arms or discontinue to use the said surname or to use or quarter the said arms shall apply to the persons to whom estates for life or in tail male are hereby limited as if the same were herein repeated and expressed mutatis mutandis.”
Isabel Catherine de Vere died on the 9th January, 1959, without having revoked the deed of appointment, dated the 2nd July, 1953.
In a memorandum addressed to the trustees of the testator’s will and dated the 28th October, 1959, the defendant, Morrogh Vere OBrien, declined to take the name and arms of de Vere and gave his reasons for so doing. He has two sonsthe second-named defendant, Colm Morrogh Vere OBrien who was born on the 4th April, 1947, and Hugh Stephen Vere OBrien who was born on the 13th October, 1948.
The plaintiffs are the present trustees of the testator’s will. The mansion house at Curragh Chase was burnt down in 1941, and as it was not possible to rebuild the house a cottage on the estate was converted into the principal residence with part of the proceeds of the insurance. From time to time various parts of the Curragh Chase estate have been sold and the total value of the entire trust property is now approximately £73,672 14s. 8d.
The main wish of Mr. OBrien in these proceedings is to retain the name of OBrien. Those who are interested in lineage will find the antiquity of these names very interesting.
In the famous Earldom of Oxford petition of 1625 (Willoughby of Eresby Case) (1) Chief Justice Crew referred in stately language to the ancientness of the name of de Vere; and on the other hand the name, OBrien, has been famous since the time of the battle of Clontarf in 1014. It is therefore quite understandable why the defendant should not wish to change his name, though that is not a consideration to which I should pay any regard in dealing with this case.
It is submitted that clause 8 of the willthe name and arms clauseis void for uncertainty; and the word in the clause that the argument has chiefly centered on is”continue,” for it is submitted that the Court could never know when the defendant might have failed to continue to use the name and arms. The name might be used on formal occasions but not on private occasions and in communications between friends; and the Court must be able to say nowwhat is or is not continuous user.
The clause would operate to divest if its provisions came into effect, and it is therefore a condition subsequent. The principles of law which apply to conditions subsequent are well settled and I need only refer to Lord Cranworth’s dictum in Clavering v. Ellison (2), at p. 725, for a clear expression of the position:”And I consider that, from the earliest times, one of the cardinal rules on the subject has been this: that where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.” All the arguments in subsequent name and arms clause cases have been based on that statement by Lord Cranworth. In Clayton v. Ramsden (3), where the phrase in issue was “of Jewish parentage and of the Jewish faith,”the House of Lords applied Lord Cranworth’s dictum in coming to the conclusion that it was void for uncertainty. That case excited a great deal of interest, and it would seem to me, from the cases which have been cited before me, that it gave rise to a series of cases in England, and to one in this country.
In In re Bouverie(4), a decision of Mr. Justice Vaisey, a testator, by his will, settled certain freeholds on condition that any life tenant (or in the case of a married woman her husband) should within one year of becoming entitled in possession assume the surname of Bouverie, and apply to bear the arms of Pleydell Bouverie and that if the person so entitled or in the case of a married woman her husband should “at any time afterwards disuse such surname . . . or . . . . disuse such arms” certain gifts over were to take effect. Mr. Justice Vaisey, holding that it was a condition subsequent, went on to apply the principle in Clavering v.Ellison (1) and after some consideration of the possible meanings of the word, “disuse,” he held that it was not possible to see the exact moment of time at which the disuse of the name or the arms would occur to such an extent as would cause the gift over to take effect. At page 403 he says:”In my judgment, although the meaning of the word ‘disuse’ is sufficiently plain in the colloquial sense, it is more than doubtful whether it is of that high degree of certitude and precision which is required in the case of a condition subsequent, that is to say, a condition which takes away an estate previously conferred.” He then dealt with a number of cases dealing with the degree of certainty required to make a valid condition subsequent, and he then went on:”Applying the test to the present case, I ask myself: can Mrs. Marshall, the first defendant, and can her husband, say precisely and exactly what they have to do or refrain from doing in order to prevent any transfer of her interest under the gift over? It does not require very much ingenuity to imagine a large number of borderline cases. Of course, if she ceased to use the name Bouverie altogether, and never used it again, never mentioned it, and never allowed it to be used in conjunction with her own name, then that would be an obvious case. But to what extent and for what period of time has the ‘disuse’ referred to in the clause to take effect? Would it be a breach of it if from time to time Mrs. Marshall, having adopted the name of Bouverie for general purposes, occasionally referred to herself by her former name of Marshall, and occasionally gave that name when giving an order in a shop in London? How often would she have to omit the use of the word ‘Bouverie’ to bring about the forfeiture for which the clause provides? What percentage short of 100 per cent. of the disuser of the name would amount to a disuser of it within the meaning of the clause?” I have quoted that part of Mr. Justice Vaisey’s judgment at some length to show that he gave careful consideration to the word, “disuse,”and analysed it fully. In the result he held the condition void for uncertainty.
The next case, In re Wood’s Will Trusts(2), decided by Mr. Justice Wynn-Parry, appears in the reports immediately after In re Bouverie(3). In that case a testator had provided
that beneficiaries should “assume and use the surname and arms of Wood either alone or together with his or her own surname and arms and that in case any such person shall refuse or neglect within [a prescribed period] . . . to assume and use such surname and arms, or shall at any time afterwards discontinue to bear and use such surname and arms”certain provisions for defeasance were to take effect. Mr. Justice Wynn-Parry held that the meaning of “discontinue to use” was indistinguishable from “disuse” and he approved of the reasoning of Mr. Justice Vaisey in In re Bouverie(1) when following that ease and holding the condition void for uncertainty.
In In re Kersey(2), a testator provided that beneficiaries should within one year of becoming entitled take, use and bear the name and arms of Kersey, and the words “on all occasions” appeared in relation to the use of the name and arms.
Mr. Justice Danckwerts held that the condition was void. The report is very short and I think it is only right to agree with Mr. Ellis that the principal ground of the decision was that of public policy, but, nevertheless, In re Wood’s Will Trusts(3) was referred to in the judgment.
In re Montgomery(4) was decided by Mr. Justice Dixon and the clause in issue was practically the same as that with which we are here concerned. In that case Mr. Justice Dixon had reviewed carefully all the cases I have dealt with and in additionan important reason as far as I am concerned he also stated his own reasons for holding that the condition was uncertain and therefore void. At page 69 of the report, having dealt with the various cases and discussed the concepts of the condition coming into operation, on the one hand, as a result of a gradual change in the beneficiary’s conduct or, on the other hand, at a definite moment of time, Mr. Justice Dixon went on to say that whether one looked at the matter from that point of view or from what he had suggested might be an alternative one, it seemed to him that no Court could say with any reasonable certainty when the disuse or discontinuance had occurred. A Court could say, with more or less difficulty according to the circumstances, that there had been disuse or discontinuance, but that was not sufficient. The operation of a condition subsequent, involving a defeasance or gift over, had obviously to be certain in point of time. His view was limited to the impossibility of ascertaining when exactly the condition had been broken, and, consequently, when exactly the defeasance or gift over had occurred. If that point of time could not be ascertained with certainty, neither could it be ascertained with certainty who was the person benefited by the defeasance, since the identity of that person would depend on the time of operation of the condition. Further, the testator probably contemplated, and, he thought, must be presumed only to have contemplated, the particular event as something that would, in the case of any particular beneficiary, occur once and once only. It was conceivable, however, that in the case of the same beneficiary there might be alternating use and disuse of the name and arms and that each-period of disuse might be sufficient to justify a Court in holding that the condition had been broken during the period. There could, thus, be competing periods of defeasance or, more probably, the particular period relied on would not be the earliest of the actual periods. If, on the other hand, the testator could be presumed to have contemplated such an alteration, there would still be the same uncertainty in his intentions.
As I have said, Mr. Justice Dixon, after a careful review of the authorities, came to the conclusion on his own opinion that the defeasance clause was void for uncertainty.
The next case on this subject was In re Murray(1) in which the leading judgment in the Court of Appeal was delivered by Evershed M.R. I think that one could agree with Mr. Ellis in saying that the Master of the Rolls uttered words that could only be regarded as faint praise of In re Bouverie(2) and the cases subsequent to it; but I do not think I can place too much reliance on that as he was not dealing with the words and phrases that I have to deal with. There are, however, some passages in the judgment of the Master of the Rolls that I feel I must refer to. Briefly the position in that case was that a testator provided (clause 8) that beneficiaries “shall . . . assume the surname of Murray either alone or in substitution of his or her usual surname . . . and shall apply for proper authority to bear and use my family arms. 9. In case any person becoming so entitled . . . shall refuse or neglect to assume the surname of Murray and arms aforesaid or to make such application as aforesaid within one year after he or she shall become entitled . . .”;then followed certain divesting provisions; and clause 10 was an earnest wish that beneficiaries would continue to use the name, Murray. It was held that it was impossible for the Court to see from the beginning precisely and distinctly on the happening of what event the preceding vested estate was to determine and that, in particular in the context of clause 8, there was doubt as to what degree of user of the surname was required by the obligation “to assume the surname of Murray.”
At page 78 of the report the Master of the Rolls says:”I observe first that clause 10 in this codicil negatives continuing user of the name or the arms as a matter of obligation. On the other hand, it is, I think, clear that the word ‘assume’ in reference to a surname necessarily imports some degree of user. Is it possible to say here with the certainty and precision which is required in this case what user, short of continuous user, is postulated for the assumption of the name? Put more particularly, is it possible to say with sufficient precision and certainty whether the assumption of the surname and subsequent discontinuance within the year would, or would not, cause a forfeiture? It would obviously be possible within the year for a life tenant to take all necessary steps to assume the name of Murray, to use it substantially and in fact for an appreciable time, and then, still within the year, to discontinue it. Mr. Albery accepted the suggestion that such a procedure would involve compliance with the terms of the codicil; I must say that I find that difficult to accept. I find it difficult to suppose that this testator could by his language have so intended. At any rate I am upon that matter left in real doubt.”
To follow the steps taken by Evershed M.R., in this matter, he was of the view that “assume” necessarily implied user. His difficulty then was to ascertain what degree of user was sufficient. Was the assumption and subsequent discontinuancesufficient to bring it within the clause? He thought that it was not. The same reasoning would seem to be applicable here and I think it applies to “discontinue” so far as uncertainty is concerned.
In In re Neeld, deceased(1), the defeasance clause was practically in the same terms as that with which I am dealing. Mr. Justice Cross stresses the use of the words, “on all occasions,” and says they must be linked with “discontinue,”so that the whole phrase really means “discontinue to use on all occasions.” This is the way Gross J. deals with the point, at p. 466:”The first objection to these clauses which is taken is that the words ‘use’ and ‘discontinue to use’ are not sufficiently precise. In In re Bouverie(2) Vaisey J. held that the word, “disuse,” was not of the high degree of certainty and precision which was required in a condition sub-sequent, and in In re Wood’s Will Trusts(3), Wynn-Parry J. held that if the word ‘disuse’ was too vague, the phrase ‘discontinue to use’ must also be too vague. But here the Wording is not ‘use’ simpliciter but ‘use upon all occasions.’ I think that the later words’ discontinue to use’ obviously refer back to the earlier phrase and mean ‘discontinue to use upon all occasions.’ Even apart from authority I should have no doubt that the expressions ‘use upon all occasions’ and ‘discontinue to use upon all occasions’ were sufficiently certain; but, in fact, in my judgment, this point, too, is covered by the decision of Swinfen Eady J. in In re Drax(1). There the words in question were ‘take upon . . . herself and use in all deeds and writings to which . . . she shall be a party or which . . . she shall sign, and upon all other occasions the surnames of Erle and Drax.’ Swinfen Eady J. held that those words meant that the surname must be used on all occasions when a surname is ordinarly used.”
He concluded his judgment by saying:”So far as concerns uncertainty, the cases of In re Bouverie(2) andIn re Wood’s Will Trusts(3) are plainly distinguishable, whereas the case of In re Drax(1), in my judgment, is indistinguishable.”
Mr. Justice Cross does not deal with what Vaisey J. had to say in In re Bouverie(2) nor with the analysis to which Vaisey J. had subjected the words he had to construe. For example, he does not examine at what time it could be said that a name was discontinued, or when a defeasance could be said to occur. I am unable to distinguish the cases in any way. It seems to me that adding the words, “on all occasions,” does not make any more certain the time when a defeasance might take place. I think that all the arguments applicable to Bouverie’s Case (2) and the cases following it are applicable here. Furthermore, I have had cited before me the judgment of Mr. Justice Dixon in In re Montgomery(4), a case which was not cited to Cross J. Mr. Justice Dixon there had to construe the very words I am now dealing with in this case, and at p. 66 the report sets out:”His Lordship recalled that counsel on behalf of the interests presumptively entitled on a defeasance had stressed the use of the words ‘upon all occasions’ in the present clause and the fact that these words did not appear in the clauses under consideration in In re Bouverie(2) andIn re Wood’s Will Trusts(3). He pointed out that that phrase did appear in the clause in question in In re Kersey(5) but that the report was silent as to this distinction. It had been contended that the obligation to use and bear the surname upon all occasions was a more rigid, and therefore a more certain, obligation and that it involved that a failure upon any occasion worked forfeiture. That reasoning, however, could not extend to the obligation to bear the arms which was not qualified in the same way. Further, as Vaisey J. had pointed out in In re Lewis’ Will Trusts(1) the Courts leant strongly against defeasance clauses of that nature. His Lordship found it hard to conceive any Court construing the clause so strictly as to hold that any omission to use the surname or bear the arms, however inadvertent or accidental, would cause a forfeiture. In fact the contrary approach appeared from the decision of Swinfen Eady J. (as he then was), in In re Drax(2), where a condition requiring the use of a surname ‘in deeds and documents and on all other occasions’ was held to permit of exceptions in the use of the surname. Accordingly, quite apart from the clause having been the same in this respect in In re Kersey(3),he did not think the distinction relied on sufficient to distinguish the English decisions to which he had referred.”
I add that in my opinion the addition of the words,”on all occasions,” makes no difference when one comes to make the tests. If exceptions were to be permitted in the user of the name, then uncertainty would be imported. Mr. Justice Dixon dealt with the ‘same words as those to be construed here, and did so exhaustively. He was aware of the fact that these names and arms clauses had been used by practitioners for hundreds of years. He was not bound by the English cases, but applying his own independent reasoning he found that the extra words before him were not enough to distinguish them from the principles of the English cases. I agree with his view. I should add that the case of In re Neeld, deceased(4), is reported in the August issue of the English Chancery Reports and the case could be under appeal.
The position then is that three judges in England have held defeasance clauses of this sort to be bad for uncertainty. Even the Court of Appeal has used language in relation to”assume” which I think would be equally applicable to”discontinue.” And there is the judgment of Dixon J. inIn re Montgomery(5) in this country and I can see no reason why I should not follow it. In the ordinary course one will follow one’s colleague and unless there are very clear indications that one’s colleague acted under a misapprehension, or that relevant cases were not cited to him, there would seem to be little reason to distinguish the case. So unless a new line of argument not presented in the previous case, and convincing to me, has been presented in this case I ought not to depart from the decision of Mr. Justice Dixon.
Now, Mr. Ellis says that the defeasance phrase”any person . . . shall refuse or neglect to take use and bear the surname and arms aforesaid or to take such steps as aforesaid or shall at any time discontinue to use and bear the surname and arms”should be taken and understood in three parts, and failure in relation to any one of those parts will lead to defeasance. He separates the occasions of defeasance into three, as follows:1, When a person refuses or neglects to take use and bear the surname and arms; 2, When a person refuses or neglects to take steps (to obtain a licence for use of the name and arms); and 3, When a person discontinues to use and bear the name and arms. Mr. Ellis points out that the testator required the first two steps to be taken within a year and it is conceded that the year has gone and that the defendant has not complied with the conditionindeed, he has refused to do so. Mr. Ellis says that even if the third condition is void for uncertainty, the other two are precise and definite as to what is required to be done; they are therefore valid and on failure to comply with either or both of them the estate shifts. He cites a passage from Jarman on Wills (8th ed., 1951) at p. 1426, where the learned author says:”Shifting clauses, like other executory devises, must be limited so as to take effect within the period allowed by the rule against perpetuities, unless they are to take effect on the determination of an estate tail. A shifting clause may be alternative or divisible, so as to be good in one event, and bad in the other.” But as Mr. Matheson has pointed out, the type of shifting clauses the learned author is considering are those dealing with clauses which might offend the rule against perpetuities. Mr. Ellis supports his contention by citing the cases of Miles v. Harford (1) and Longhead v. Phelps (2). If I thought that those cases applied in the presence circumstances I would have to hold with Mr. Ellis. It is of some significance to my mind that these cases would be a very powerful argument in his favour; but it seems to me that they are referable only to cases of alternative beneficial devises and are relative to perpetuities. In that type of case there must be alternative devises, two distinct gifts, and if one fails the Court will support the one that is good in order to prevent the devise failing. In my view that branch of the
law has nothing to do with the law relating to conditions subsequent. I am not concerned here with the law of alternative devises and the issues here have nothing to do with the rule against perpetuities. In this case the intention of the testator is paramount and in my view the intention of the testator is not only that the beneficiary should take, but use and continue to use, the name and arms of de Vere several times the clause says:”take use and bear.” It is one whole and indivisible intention. I agree with Mr. Matheson that conditions subsequent which defeat a vested estate are to be construed differently from alternative beneficial devises involving the rule against perpetuities:In re Viscount Exmouth(1). It is unnecessary to deal with the cases cited in detail save, perhaps, In re Callaghan(2),a decision of Gavan Duffy P. In that case the testator devised lands to a devisee “provided he arranges within a period of three months of my death to take over possession and permanently reside on said farms or on either of said farms and communicates his decision so to do to my executor within the said period of three months and provided he actually takes up his residence on either of said farms within a period of six months from the date of my death. And in the event of my said nephew Andrew Callaghan not arranging to so reside and take over possession of said farms within said period and not actually taking up his residence thereon within the said period of six months . . .” there followed a gift over. Gavan Duffy P. held that the requirement as to taking up residence “actually” was not void for uncertainty but was quite definite and was a good condition precedent and that as the nephew had not actually taken up residence on either farm within six months the gift over operated.
Mr. Ellis cites that as a case where conditions were capable of being split. The nephew had complied with one condition that requiring him to indicate to the executor that he was prepared to take overbut he had not complied with the other which required him actually to take up residence. But the phrases there were different to those involved here. They are two divisible phrases and each is introduced by a separate”provided that.” Furthermore, they were conditions precedent, not conditions subsequent. There was no question of divesting a vested estate. In my view the case is distinguishable from the present one.
Therefore, having considered the cases, I see no reason to depart from the carefully considered judgment of Mr. Justice Dixon, and I do not think it necessary to advance any opinion of my own.
Mr. Matheson did advance the argument that even if the clause were split it would still be uncertain as the word,”take,” involves user, and that the same reasoning would apply as applied in In re Murray(1) to the word, “assume.”It seems to me that what Mr. Matheson says is right, but it is not necessary for me to go into that in detail in view of the conclusion to which I have come, though I thought it right to mention it since it had been argued.
I therefore hold the defeasance clause void for uncertainty and will answer the questions 1, No; 2, No; 3, Does not arise.
Robin James Atkins and Allied Irish Banks Ltd v John Fuller Atkins
, the Trustees of the Methodist Church in Ireland and Margaret Atkins
1974 No. 94 Sp
High Court
30 March 1976
[1976-7] I.L.R.M. 62
(Kenny J)
KENNY J
delivered his judgment on 30 March 1976 saying: John Henry Atkins (‘the testator’) lived at ‘The Cottage’, Dunmanway, Co. Cork. He believed that he owned the house and property which contains eleven acres and two roods as a freeholder. He made his will on this basis. The true position was that he held the lands under a lease for 10,000 years at a rent which had been redeemed. He was married but had no children.
By his will made on 13 July 1936 he provided in clause 2 and 3:
2. I devise my freehold residence known as The Cottage, Dunmanway aforesaid with the grounds belonging thereto to the uses following, namely, to the use of my wife Margaret during her widowhood and so long as she shall desire to reside therein and after her death, remarriage or her ceasing to reside therein to the use of my sons and my nephews hereinafter named in the order for the estates and in manner following, namely, first to my sons and their male issue, secondly to my nephew Robin Atkins and his male issue and lastly to my nephew Ashley Atkins and his male issue every *64 elder son and his male issue to be preferred to every younger son and his male issue and every son of mine and my nephews to be tenant for life without impeachment of waste with remainder to his first and other sons successively by seniority in tail male and on failure of such issue to the use of my own right heirs.
3. I give to my wife the use and enjoyment of all my furniture and effects and all outdoor chattels, motor cars and effects which shall at my death be in or about or appropriated to my said residence The Cottage during her widowhood and so long as she shall continue to reside therein. After the death or remarriage of my wife or her ceasing to reside in said residence, the said furniture and effects shall fall into my residuary estate and be dealt with accordingly.
The testator made a first codicil to his will on 11 February 1938. Clause 2 of it provided:
2
(1) I declare that every person having a surname other than that of Atkins who shall be entitled in possession as beneficial tenant for life or tenant in tail under the limitations contained in the second clause of my said will shall within 18 calendar months after he shall become entitled in possession if of the age of 21 years or, if not, then within 18 calendar months after attaining that age, assume by deed poll duly enrolled or otherwise and thenceforth use my surname of Atkins alone and that every person excluded by reason of his already bearing the surname aforesaid from the operation of the requisition aforesaid shall continue the use of such surname and I also declare that every such tenant as aforesaid shall use the freehold premises in the second clause of my said will mentioned as his principal residence and that in case of neglect or refusal to comply with both or either of the requisitions hereinbefore set out the estate or estates by my said will limited for the life of the person or as the case may be the estate tail by my said will limited to the person or ancestor of the person who shall be guilty of such neglect or refusal shall cease as though such a person neglecting or refusing were dead and the subsequent limitations be accelerated.
(2) I revoke the device contained in the second clause of my said will of my freehold residence known as The Cottage of my own right heirs in the event of failure of the issue of my nephews Robin Atkins and Ashley Atkins and in lieu of such devise upon such failure of issue as aforesaid or in the event of such neglect or refusal as aforesaid by the last of such issue I devise the said freehold premises to the trustees of the Methodist Church in Ireland a body corporate by virtue of the Methodist Church in Ireland Act 1915 to be used as a manse for the Methodist Minister residing at or in charge of the district of Dunmanway aforesaid upon condition that the same shall be maintained in as good order, repair and condition as they shall be when they shall come into the possession of the said trustees and in case the said trustees shall neglect or refuse to comply with both or either of the requisitions hereinbefore in this sub-clause contained or in case the said devise shall fail for any other cause then I devise the said freehold premises to the use of my own right heirs.
The testator made a second codicil but it is not relevant to any of the questions which have arisen.
The testator held the premises ‘The Cottage’ Dunmanway under a lease of *65 27 October 1863 from John Hamilton to John Atkins by which the property was let to John Atkins for 10,000 years at a rent of £37.25. The lease contained a covenant by the landlord that he
shall and will abate and reduce said reserved yearly rent at the rate of £6 for every £100 which the said John Atkins his executors, administrators or assigns may within 10 years from the date hereof pay to the said John Hamilton his heirs and assigns for that purpose provided however that the said John Hamilton his heirs and assigns shall not be bound to accept any sum except one even sum of £100 at a time save the last instalment of £600 sterling on payment of which sum total all claim and demand on foot of the said yearly rent of £37.25 shall utterly cease and determine.
This rent has not been paid for 40 years at least and in these circumstances the court may assume that the rent was redeemed (Lefroy v Walsh (1851) 1 ICLR 311). The court cannot however assume that the term of years was converted into a freehold estate under s. 65 of the Conveyancing Act 1881.
The testator died on 13 March 1941 and his widow, the third named defendant, resided in ‘The Cottage’ from that date until 1956 when she left and went to reside in England where she has lived since then. Unfortunately she has not appeared in these proceedings and although the case was adjourned to enable her to do so, counsel on her behalf stated that she did not wish to take any part in the action. The trustees of the Methodist Church of Ireland have appeared and have stated that they do not make any claim to the property which, they say, is not suitable for use as a manse.
The first question which arises relates to the interest which the widow took in the property at Dunmanway. Her estate lasted so long as she remained a widow and did not cease to reside in ‘The Cottage’. It did not determine when she decided that she did not wish to reside there but only when she had ceased to reside in it. For the reasons which I shall give in a later part of the judgment, the provision as to residence is not void for uncertainty. She had the powers of a tenant for life under the Settled Land Acts (s. 58(1)(vi) of the Settled Land Act 1882) and the provision as to residence was void under s. 51 of that Act for it would impose on her an obligation inconsistent with her exercising her powers of selling and leasing under that Act.
She ceased to occupy the property in 1956 and in that year discontinued her possession. The 12 year period prescribed by s. 13(2)(a) of the Statute of Limitations 1957 began to run in that year and Robin’s possession was adverse (s. 18) to her estate in the sense that it was inconsistent with it. There is no evidence that he was a licensee or that he paid her any rent. The result is that her estate during widowhood became barred in 1968.
The next question which arises relates to the interest of Robin Atkins. The property is left to him ‘and his male issue’ but there is a subsequent provision that every nephew is to be a tenant for life without impeachment of waste. When *66 words appropriate to create an estate tail are used in relation to personal estate, they give an absolute interest to the tenant in tail ( Jarman on Wills 6th ed. p. 1193) and the testator, who believed that he had a freehold tenure, tried to make Robin a tenant in tail by the earlier clause in the will. The later provision however that each nephew was to be a tenant for life indicates that the testator did not intend Robin to be a tenant in tail but a tenant for life. If there were any doubt about the matter, the rule that in the construction of a will the later part prevails over an earlier would be sufficient to limit Robin’s interest to that of a life tenancy ( Jarman on Wills 8th ed. p. 576). He is therefore a life tenant of the leasehold interest.
It has been argued on the authority of the Privy Council advice in Sifton v Sifton [1938] AC 656 that the clause in the first codicil by which each owner was to use the premises as his principal residence was void for uncertainty. It has been assumed that the effect of that decision was that any condition subsequent which contained a provision making a cessation of residence an event upon which a prior interest would cease is void for uncertainty but the case, though often cited as an authority for this wide proposition, does not support it. In it a testator provided that his trustees were to pay to his daughter a sum sufficient in their judgment to maintain her suitably until she was 40 after which the whole income of the estate was to be paid to her annually. This was followed by a clause: ‘The payments to my said daughter shall be made only so long as she shall continue to reside in Canada’. Much turned on the meaning of the word ‘continue’ and on the question whether it is possible to determine with certainty whether a person resides in a country. In a decision given after that in Sifton v Sifton, the High Court of Australia distinguished it and held that a clause that a person was to reside in a particular house was not void for uncertainty (Perpetual Trustees Executors and Agency Co. of Tasmania v Walker (1953) 90 CLR 270). In that case the testator had provided that while Huonden (the residence where he and his wife lived) remained unsold and his wife resided there, his trustees were to pay an annuity to her. In an outstanding judgment the Chief Justice, Sir Owen Dixon said: ‘But in any event I am not prepared to hold that the condition that the testator’s widow must reside at Huonden is too uncertain even it be a condition subsequent. The condition makes it incumbent upon her to live at a definite place. It is expressed in the terms of ordinary speech and appears plainly to require that she shall make it her ordinary dwelling. It is true that, like very many conceptions of ordinary life, there is an incompleteness of logical definition in the conception; but it does not follow that it is too uncertain to be made the ground of a forfeiture. The amount of absence from a man’s dwelling which is necessary to rob it of that character and make it no longer his residence may be a matter of degree. But everyone understands that if it is the place to which he returns from temporary absences, from journeys abroad and from peregrinations upon pleasure or business, where he maintains *67 an establishment, and keeps his more permanent personal belongings and household furniture, it is his home when he resides there. The legislature had had no hesitation in making ‘residence’ in a given place the criterion of liability to taxation, or ratability and of the right to vote. Indeed the jurisdiction of this Court may depend on the residence of a litigant in a State. It seems strange that a testator should be denied the power of prescribing residence in a given dwelling place as a qualification for his bounty’. I reject the argument that the condition requiring a beneficiary to make the premises ‘The Cottage’ at Dunmanway a principal residence is void for uncertainty.
As Robin is, in my view, a tenant for life of the property the effect of s. 51 of the Settled Land Act 1882 is that the condition as to using the property as a principal residence is void for it imposes on him an obligation ‘inconsistent with his exercising any power under this Act’ (see Re Thompson’s Will (1888) 21 LR Ir 109).
It is now possible to answer the many questions in the amended summons. The answers will be:
1. (a) No
(b) Yes
2. (a) No
(b) No. Because the condition was void under s. 51 of the Settled Land Act 1882.
(c) No
3. No
4. (a) Does not arise.
(b) Does not arise because the condition was void under s. 51 of the Settled Land Act 1882.
5. Does not arise.
6. No
7. The estate of Margaret Atkins has been extinguished by the Statute of Limitations 1957.
8. (a) No
(b) Yes
9. Yes
10. No
11. The interest of the first named plaintiff in the proceeds of sale of ‘The Cottage’, Dunmanway will not be forfeited in consequence of a sale by him of the said premises though he thereby ceases to reside in or to make it his principal residence.
The controversy related to the property ‘The Cottage’ at Dunmanway and did not relate to the remainder of the estate. This is accordingly a case in which the costs of these proceedings should not be payable out of the residue but should *68 be paid out of the property the disposition of which gave rise to the dispute. The plaintiffs will be awarded their costs as trustee costs payable out of ‘The Cottage’, Dunmanway or the proceeds of its sale and the defendants will be given their costs out of the same source. If the parties can agree on the costs, I will fix them and so save the expense of taxation.
In the matter of the Estate of David Dunne, deceased
and in the matter of an Application by Samuel Le Blanc
[1988] IR 150
[1988 No. 336 Sp.]
High Court 1st July 1988
O’Hanlon J.
1st July 1988
David Dunne, the deceased named in the title of these proceedings, died on the 15th October, 1986, having made his last will dated the 30th March, 1984, whereby he gave, devised and bequeathed all his property, both real and personal, to the applicant, Samuel Le Blanc, and his wife, Nuala, for their own use.
The gift, however, was a conditional one. The will recites that it is made”subject only to the condition that my dwelling house and lands or any part thereof shall not be sold or otherwise conveyed or transferred by them or either of them, their successors or assigns, to any member of the Meredith families of O’Moore’s Forest, Mountmellick.”
The applicant, who is the executor of the estate of the testator, asks the court to decide whether the condition imposed by the will is valid, and therefore registrable on the folio of the register of freeholders on which the title to the testator’s lands is registered.
The general principles applicable in determining this issue are set forth clearly and succinctly in Professor Wylie’s work on Irish Land Law (2nd ed., 1986) p. 186 at par. 4.054. The author states:
“It has been a matter of general policy of our land law from the earliest days that freehold land should be freely alienable. As far as the fee simple is concerned, this general principle was enshrined in Quia Emptores, 1290. It is clear that an attempt to impose a condition in total restriction on alienation by the grantee of a fee simple is void. Where the condition is not a total restriction, it is a question for the court as a matter of public policy whether it is so restrictive as to be void. In deciding this the court has to balance the competing interests of free disposition of property by grantors and the general policy of ensuring marketability of freehold land.”
The principles applicable were considered in Billing v. Welch (1871) I.R. 6 C.L. 88, where O’Brien J. said (at p. 101 of the report):
“The general principles upon which covenants against alienation contained in a deed granting lands in fee simple are held to be void, as being repugnant to the estate granted by that deed, are laid down in several passages of Sheppard’s Touchstone, vol. i, pp. 129 and 130 (Preston’s Edition). In p. 129, it is stated that no condition or limitation, whether by act executed, limitation of use, or devise, that contains in it matter repugnant to the estate, is good. It is true (as stated in pp. 129 and 130) that if a feoffment or other conveyance be made of land, upon condition that the feoffee or grantee should not alien to certain persons, such condition would be good; but the author adds (p. 130), that if the condition be that the feoffee or grantee should not alien the thing granted to any person whatsoever . . . such a condition is void . . . as repugnant to the estate.”
That statement of the law would appear to support the validity of what was done by the testator in the present case. I would have reservations, however, about the consistency with public policy of incorporating conditions in the grant or devise of freehold property, the obvious purpose of which is to perpetuate old resentments and antagonisms and bind the grantee or devisee to bear them in mind and give effect to them when contemplating any further disposition of the property. This is particularly so when, as in the present case, the grantor or testator seeks to bind by the condition imposed, not merely the grantee or devisee but his or her successors and assigns as well – apparently for all time in the future.
A further element of doubt is raised by the description of the persons against whom the testator’s antagonism is directed. He refers to “any member of the Meredith families of O’Moore’s Forest, Mountmellick”. As the condition is intended to bind the successors and assigns of the devisees for the future, it would appear to create an obligation to identify any future grantee of the lands as not belonging to the families in question. At what stage does one cease to be a member of those families – by departure from the area or otherwise? Abraham was told that his descendants would be as numerous as the stars in heaven and the sands on the sea-shore. Hundreds of years later the Jews were to say, “We have Abraham for our father”. I find it impossible to say with any degree of certainty at what time in the future, and by that combination of circumstances, a descendant of the present Meredith families of O’Moore’s Forest, Mountmellick, could be regarded as no longer belonging to the category described by the testator.
On these two grounds, first, the inconsistency with public policy of seeking to perpetuate old family divisions and carry them forward into future generations who may occupy the lands after the death of the testator, and secondly, on the ground of vagueness and uncertainty as to the nature and extent of the obligation sought to be imposed on the devisees, their successors and assigns, I find the condition referred to in the will invalid and void for uncertainty and direct that the title should be registered without including in the registration any reference to the condition in question.
John Fay v Patrick Finnegan and Others
High Court of Justice.
Chancery Division.
26 March 1900
[1900] 34 I.L.T.R 73
Porter, M.R.
Porter, M.R.
As regards the first question, I am quite certain the eldest daughter was not meant. No one would speak of a nun as Miss Gaffney. This being out of the question, the testator must have intended to fill up the blank with the name of one of the two younger daughters. I have no means of ascertaining which. The legacy fails for uncertainty.
I feel much more doubt about the second question than about the previous one. Miss M’Cabe is the customary way of describing the eldest daughter, and Miss M’Cabe is in the will. But then there is a blank space between “Miss” and “M’Cabe,” as if the testator intended to insert a Christian name, which conceivably might be the name of the younger sister. But as he did not fill up the blank, in the absence of any evidence to the contrary, I hold, though I feel far from certain about it, that the elder sister is entitled, rather than the other alternative that the legacy is void for uncertainty.
As to the 3rd question, I must either strike out the word “three” or hold this bequest void for uncertainty. The cases establish the principle that a latent ambiguity of this kind is dealt with by striking out the word “three.” Each of the children will therefore take a legacy of £20.
Mc Gowan -v- Kelly
[2007] IEHC 228
Judgment of Miss Justice Laffoy delivered on 19th June, 2007.
The proceedings
These proceedings concern the construction of the last will dated 21st October, 2004 of Patrick Kelly (the Testator), who died on 25th October, 2004 aged 85 years. Probate of the will was granted to the plaintiff, one of the executors, reserving the right of the other executor, on 16th January, 2006.
The provision of the will which has given rise to difficulties of construction is in the following terms:
“I give devise and bequeath my house and farm at Carraghs, Ballinlough, County Roscommon to my sister Hilda McGowan of Carraghs, Ballinlough, County Roscommon in trust and on condition that she (Hilda McGowan) transfers, conveys the said house and farm at Carraghs to my nephew Brian Kelly, Birmingham, England son of my late brother William Kelly provided he returns to live there but if he does not wish to take it on that condition then otherwise I give devise and bequeath my house and farm above to my sister Hilda absolutely.”
Brian Kelly named in that provision is the defendant. The Testator devised the residue of his estate to the plaintiff in trust for his three nephews, Michael Gallagher, Robert Gallagher and Tommy Fitzgerald, to be divided equally in three shares.
On the special summons the plaintiff asked the court to determine the following questions arising out of the construction of the will of the Testator:
(1) Whether or not the condition that the defendant “returns to live there” (i.e. on the farm at Carraghs) is void for uncertainty?
(2) If the answer to question (1) is in the negative, whether the condition obliging the defendant to return to live on the farm is a condition precedent or a condition subsequent?
(3) Whether, if the answer to question (2) is that the requirement on the defendant to return and reside on the farm is a condition precedent, the plaintiff holds the farm and dwelling in trust for the defendant, and, if so, what is the duration of the said trust?
Counsel for the defendant took issue with the formulation of the foregoing questions and suggested that questions which would have been posed by “an impartial personal representative” would have been the following:
(a) Whether the condition attaching to the bequest is a condition subsequent?
(b) If so, is it void for uncertainty?
(c) If the answers to (a) and (b) are in the affirmative, does the defendant take the subject matter of the bequest freed and discharged from the condition?
(d) Is the condition attaching to the bequest a condition precedent?
(e) If so, is the same void for uncertainty?
(f) If the answers to questions (d) and (e) are in the affirmative, does the subject matter of the bequest pass to the plaintiff?
(g) Such further or other questions as to the court might seem proper.
The facts
As appears on the face of the will, the defendant is a nephew of the Testator, being the son of a brother of the Testator. The defendant was born in England in 1960. He was educated in Birmingham. Having left school at the age of sixteen, he has been working in the construction industry in Birmingham since. He is married and he has two children, a son who is sixteen years of age and a daughter who is eight years of age. The family is settled in England, from which I infer that the defendant has no wish or intention to uproot his family and settle at Carraghs.
The net value of the estate of the Testator as per the Inland Revenue affidavit amounted to €234,258.94, which I understand to represent the value of the dwelling and farm at Carraghs which comprises about twenty acres with a derelict house on it.
The foregoing facts are outlined merely for the purpose of putting the issues which arise in context. In my view, this is not a case in which it is permissible to resort to extrinsic evidence to show the intention of the Testator, having regard to the jurisprudence of the Superior Courts on s. 90 of the Succession Act, 1965. There is no ambiguity or contradiction on the face of the will and it is not necessary to resort to extrinsic evidence to ascertain the intention of the Testator.
Legitimus contradictor
On the hearing of the summons, the plaintiff who, as personal representative of the Testator, put the issues before the court, was also the legitimus contradictor. The interest of the residuary legatees was not represented, which is somewhat unsatisfactory given that there is inherent in the issues which arise a conflict between the plaintiff and the residuary legatees. The court was informed that the residuary legatees have been kept notified of the proceedings.
The conflict arises because of the practical effect of the distinction between a condition precedent and a condition subsequent to which a testamentary gift is subject. The practical effect was explained in the following passage in the judgment of Gavan Duffy P. in Burke and O’Reilly v. Burke and Quayle [1951] I.R. 216 (at p. 223):
“Here are two conditions and, with reference to the gift of capital, and without reference at this point to the validity of the conditions, the question is whether these conditions are conditions precedent, that is, conditions which the legatee must have fulfilled before the gift can take effect at all, or only conditions subsequent, intended to defeat a gift pre-existing (whether vested or contingent). The practical effect of the distinction is of the utmost importance: a gift made subject to a condition precedent fails altogether, as a rule, if the condition is found to be void, but, if a gift is made subject to a condition subsequent which is found to be void or inapplicable, the condition disappears and the gift takes effect independently of the condition.”
The position adopted by the plaintiff was that the condition requiring the defendant to return to live on the farm at Carraghs was a condition precedent, and, as I understand it, that the condition was void for uncertainty, although there was equivocation on this point in the submissions, and that, consequently, the gift over in favour of the plaintiff took effect. The case made on behalf of the defendant was that the condition was a condition subsequent, that it was void for uncertainty and that, consequently, the gift to the defendant took effect independently of the condition. There was nobody before the court to make the case that, if the condition was a condition precedent and it was void for uncertainty, the gift over also failed and that the house and farm fell into the residue to be held upon trust for the residuary legatees. However, counsel for the defendant submitted that the effect of finding that the condition was a condition precedent and that it was void for uncertainty would be that the gift to the defendant and the gift over failed but that the residuary gift survived.
I propose considering first whether the condition is a condition precedent or a condition subsequent and thereafter whether it is void for uncertainty.
Condition precedent or condition subsequent
The fact that the Testator devised the house and farm to the plaintiff in trust for and to transfer it to the plaintiff is immaterial to the determination of the issue whether the condition that the defendant return to live there is a condition precedent or a condition subsequent. It is the limitation of the beneficial interest, including the gift over, not the limitation of the legal estate, which requires to be construed.
There is a welter of authority for the proposition that such a condition is a condition subsequent, namely:
(i) the obiter dictum of Moore L.J. in the High Court of Northern Ireland in Moffat v. M’Cleary [1923] 1 I.R. 16;
(ii) the decision of the Judicial Committee of the Privy Council in Sifton v. Sifton [1938] AC 656 on an appeal from a Canadian court;
(iii) the decisions of the High Court and the Supreme Court in In re Coghlan deceased, Motherway v. Coghlan and the Attorney General [1963] I.R. 246, decided by the High Court in 1954 and by the Supreme Court in 1956.
(iv) the decision of the High Court (Budd J.) in In re Hennessy (1963) 98 I.L.T.R. 39; and
(v) the decision of the High Court (Carroll J.) in Mackessy v. Fitzgibbon [1993] 1 I.R. 520.
The provision which was at issue in Mackessy v. Fitzgibbon was a provision in the will of the Testator in the following terms:
“I leave devise and bequeath my farm of land … together with dwelling house … to my grand-nephew … provided he lives and works on the land but if he does not then I leave my land together with dwelling house … to my niece … absolutely.”
In relation to whether the condition that the grand-nephew live and work on the land was a condition precedent or a condition subsequent, Carroll J. stated (at p. 522) that there is a presumption in favour of early vesting, so that, if there is a doubt about whether a condition is precedent or subsequent, the court prima facie treats it as subsequent. Apropos of the condition she was considering she stated (at p. 523):
“I am satisfied the condition is a condition subsequent. It provides for two requirements which if they are not fulfilled would lead to a forfeiture. Accordingly the condition is a condition subsequent.”
In my view, notwithstanding that the wording is slightly different, there is no difference in substance between the condition under consideration in Mackessy v. Fitzgibbon and the condition imposed by the Testator in his will. The condition imposed by the Testator was a condition subsequent.
I have referred to the equivocation I detected in the submissions made on behalf of the plaintiff as to whether the condition was void or valid. If the plaintiff’s position was that it was a valid condition precedent which has not been fulfilled by the defendant so that the plaintiff takes the gift over, in my view, that is not a tenable position. The condition requiring the defendant to return to live at Carraghs, in my view, is not one which the Testator could have intended would be fulfilled by a single act of election. Its fulfilment requires time. Therefore, adopting the reasoning of Budd J. in In re Hennessy at p. 45, it must be construed as a condition subsequent.
Void for uncertainty?
The authorities cited above in support of the finding that the condition in the will of the Testator is a condition subsequent also support the proposition that the condition is void for uncertainty. The test to be applied in determining whether a condition subsequent is void for uncertainty has been well settled for almost two centuries. In many of the authorities the following passage from the decision of Lord Cranworth in Clavering v. Ellison (1859) 7 H.L.C. 707 at p. 725 is quoted:
“I consider that, from the earliest times, one of the cardinal rules on the subject has been this: that where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the courts can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.
In my opinion, if there was no direct authority for it, I should still arrive at the same conclusion; but I have looked at the authorities, especially that of Lord Eldon in the case of Fillingham v. Bromley …”
There is no doubt but that it is possible to frame a condition subsequent with sufficient precision to satisfy that test. As was pointed out by counsel for the plaintiff, examples are given in Theobald on Wills, 16th edition, at para 45.26 in which courts in the United Kingdom have held that conditions as to residence are valid. The question in this case is whether the necessary element of precision and certainty is present in the condition imposed by the Testator. On the basis of recent Irish authority, in my view, it is not.
In In re Hennessy the Testator had devised a farm to his son or his issue “if he wishes to farm it and carry on same as he thinks best”. Having quoted the passage from the judgment of Lord Cranworth which I have quoted above, Budd J. observed that he found it impossible to say with any degree of certainty what was the meaning of the words “to farm it and carry on same as he thinks best”. However, that observation was obiter.
The testamentary provision under consideration in In re Coghlan was a devise of a farm and dwelling upon trust for the testator’s nephew “provided my said nephew shall marry (if he be not married at my death) and come to reside there within one year from the date of my death, and in the event of my said nephew not marrying and coming to live there as aforesaid, in trust to sell … and apply the proceeds of such sale for the celebration of Masses …” There were two elements to the condition: the requirement to marry and the requirement to come and reside. In the High Court, Dixon J. took the view that the requirement as regards living on the farm was “too indefinite and was void for uncertainty”. However, he found the requirement as to marriage to be valid and binding. The issue on the appeal to the Supreme Court was whether the condition was a composite condition and was not severable. The majority of the Supreme Court held that it was a composite condition and that, accordingly, the condition as to residence being void for uncertainty, the condition as to marriage also failed. From reading the majority judgments, it seems to have been common case that the condition as to residence was void for uncertainty. That is to be gleaned from the first sentence in the judgment of Ó Dálaigh J. In the other majority judgment Kingsmill Moore J. stated (at p. 251):
“Certain points seem clear. The residence portion of the condition is bad for uncertainty: Sifton v. Sifton; Moffat v. M’Cleary. Both conditions – or the composite condition – are conditions subsequent and conditions subsequent which would operate to defeat a vested estate are to be construed strictly.”
In Mackessy v. Fitzgibbon, Carroll J., having referred to In re Hennessy, Sifton v. Sifton, Moffat v. M’Cleary and In re Coghlan, stated as follows at p. 524:
“While a will cannot be construed by looking at another will and each will must be construed as a whole in its own context, these decided cases are helpful. I find that the condition ‘provided he lives and works on the land’ is void for uncertainty on the same line of reasoning as in the cases cited. A beneficiary is entitled to know on what conditions his vested estate is liable to be divested. In this case the testator has been too vague and accordingly the condition is void for uncertainty both as to living and working on the lands. Since the devise and bequest is subject to a condition subsequent which is void for uncertainty it follows that the first defendant is entitled absolutely.”
By parity of reasoning, it seems to me that the condition imposed by the Testator on the defendant is too vague, imprecise and uncertain. So the condition is void for uncertainty.
Counsel for the plaintiff referred to a recent decision of this Court (Keane J.) in Fitzsimons v. Fitzsimons [1992] 2 I.R. 295. In that case, the testator had transferred a substantial portion of a farm comprising 182 acres to his son during his lifetime. In his will, he devised a life estate in the balance of the lands to his widow with a devise in remainder to the son conditional upon “him being the beneficial owner for a like estate of the lands … transferred by me to him during my lifetime.” After the testator’s death the son wanted to sell a site comprising half an acre of the lands he had acquired during the testator’s lifetime. Keane J. held that the condition was not void for uncertainty, stating (at p. 299):
“It is precise and unambiguous in its scope: it requires the plaintiff to be the beneficial owner of the lands transferred to him during the testator’s lifetime if he is to succeed in remainder to the balance. If one were to construe the clauses as permitting the sale of part only of the lands, the question would immediately arise as to the extent to which any sale would be permissible under the terms of the will. On any view, the sale of a substantial part of the lands would be in breach of the condition. How then is one to determine the extent of a sale necessary to bring the condition into operation? The result would be to create rather than to avoid uncertainty.”
Keane J. considered it unnecessary to embark on a consideration of affidavit evidence as to what the testator might have said during his lifetime in order to ascertain his intention. He stated that the testator obviously did not wish a situation to arise in which the rest of the farm went to the son, although the lands transferred to him had been sold to a stranger. He also stated that it was virtually certain that he would have been perfectly happy with the proposal for the sale of half an acre. However, to ensure that sales of that type could be made by the son, it would have been necessary for the testator to create a series of elaborate and precisely defined exceptions to the straightforward condition he chose to impose. Keane J. stated that it was perfectly understandable that neither he nor his solicitor considered that necessary or even desirable. Counsel for the defendant laid particular evidence on that last point. However, I do not see how it advances the plaintiff’s case. The distinction between the condition in the Testator’s will and the condition in the Fitzsimons case is that the latter was, as was found, precise and unambiguous in its scope, whereas the condition imposed on the defendant by the Testator, as I have said, is vague, imprecise and uncertain as to fulfilment.
Decision
In summary, I find that the condition imposed by the Testator on the defendant is a condition subsequent and is void for uncertainty. The practical effect of that is that the defendant takes the farm at Carraghs free of the condition.
In view of the finding I have made that the condition is a condition subsequent, the conflict between the plaintiff and the residuary legatees, which would have arisen if I had found the condition is a condition precedent, does not arise.
I will hear the parties as to the form of the order.
Hunter v Hunter
Exchequer Division.
5 February 1897
[1897] 31 I.L.T.R 85
Palles C.B., Andrews, Murphy JJ.
Palles, C.B.
This will is a difficult one to construe. We must first consider the entire will so as to get at the testator’s intention. This is not a case where the entire estate is given to one person, or where any words of limitation are used. It would be different if the entire interest were given. I regard these words merely as showing the testator’s intention. Why it was that he specified one daughter, Mary, and not the others, I don’t know. He gives these lands to his three unmarried daughters, and when they are married to go to his son William. Looking at it as a matter of intention, I can’t do anything but regard that as a gift to the three daughters until they are married. If two of them married it is plain that he intended the gift to continue to the survivor so long as she was unmarried, but it would cease if she married. I think that there is a clear indication that it was for the purpose of making provision for each of his daughters so long as they were unmarried, and I find this view corroborated by the other clauses. To his married daughter he only leaves the nominal sum of 5s. I think from the whole construction of the will that the testator intended that the interest of these unmarried daughters should not continue on their deaths, and therefore I am clearly of opinion that this gift to the unmarried daughters was only till marriage or death, and that the decision of the learned County Court Judge was right.
Andrews and Murphy, JJ., concurred.
In re McKenna
; Higgins and Others v. Bank of Ireland and Others
[1947] IR 277
GAVAN DUFFY P. :”
2 May
The will of John McKenna, a Westmeath farmer, purported by a condition subsequent to deprive his daughter, Mary Priscilla, and her issue of its benefit “if she shall marry a Roman Catholic.” His daughter, now Mrs. Joseph Higgins, married a practising Catholic three years after her father’s death, when she was twenty-four years of age, and there are two children of the marriage. The main question debated at the trial was whether the paternal injunction is nugatory in law as being void for uncertainty. That question has been well argued by counsel on both sides. Mrs. Higgins relies confidently on certain very recent decisions in England, without which the argument for uncertainty would have been rather startling. Perhaps the test for a valid condition subsequent has never been more tersely and more simply formulated than it was in the words of that master of Equity, the late Lord Parker, in In re Sandbrook. Noel v.Sandbrook (6):””. . . . conditions subsequent,” he said,
“in order to defeat vested estates, or cause a forfeiture, must be such that from the moment of their creation the Court can say with reasonable certainty in what events the forfeiture will occur”; the fatal event or events must be described in clear language; so much the law exacts, but it lays down no requirements as to facility of proof, if a forfeiture is alleged to have been incurred. There is no difficulty of proof in the present case, but possible circumstances are conjured up in which proof might be very difficult and that consideration is irrelevant to an argument against the clarity of the terms in which the testator has expressed his will.
I am confronted by a familiar expression, used by a Protestant farmer in his will; I know what he meant and practically every citizen in every walk of life, be he Catholic or Protestant, knows the meaning conveyed by the words”marry a Roman Catholic.” I wish to state emphatically that I do not concern myself with any theological definition of membership of the Church; I have only to construe the plain words used by a plain man in a sense plain to all of us; and I shall not make the law justly ridiculous in the eyes of persons of common sense by declaring a current expression, which the People knows and understands, to be unintelligible in the High Court of Justice of Ireland. I think it would be hard to find an expression that conveys more clearly exactly what it means throughout this country. We say that a man is a Catholic or that he is not; if he is, then in ordinary parlance whether he be a good Catholic or a bad Catholic or an indifferent one, a Catholic he remains. On the other hand, if a litigant undertakes to prove that a man who was a Catholic has actually given up the faith, so that he is no longer in ordinary parlance a Catholic, he may or may not succeed in Court, because his proofs of the fact that he set out to establish may or may not be adequate, but his success or failure will not be due to any doubt about the accepted meaning of the expression “Roman Catholic.”
The argument for uncertainty relied on dicta in the House of Lords in Clayton v. Ramsden (1), where, on the language of a condition, a subsidiary question whether a person”was not of the Jewish faith” appeared to Lord Romer and other Law Lords on the evidence to depend on the degree of his adherence; Lord Romer said that he did not know the meaning of the words and, until he knew that, he did not know to what the evidence as to a man’s creed was to be directed; or, to cite Uthwatt J., as he then was, in In re Donn. Donn v. Moses (1), there was in the words no means of ascertaining what particular tenet a person must hold in order not to be of the Jewish faith; the issue was complicated by evidence of the existence of three distinct varieties of Judaism. Here I am in no such perplexity; I discern no difficulty about knowing the meaning of the words “Roman Catholic” on the lips of the ordinary citizen and no attempt was made here to support the argument for uncertainty by evidence of the existence of any such difficulty. I note with interest that Walker, C., in Greene v. Kirkwood (2), speaking of another condition subsequent, said:””This is just as clear a condition as that a person should marry a Protestant or a Scotchman.” Thatdictum needs no comment.
In Clayton v. Ramsden (3), the findings of the Court of Appeal were reversed; but the judgment delivered by Lord Greene, M.R., with the concurrence of Clauson and du Parcq, LL. JJ., on the broad issue now before the Court stands as a permanent contribution to jurisprudence. ( In re Samuel. Jacobs v. Ramsden (4)). Despite the difference of opinion on appeal upon the clarity of particular words, I think the general principles enunciated by Lord Greene stand unassailed. (The condition in the will before the Court created a forfeiture in case a daughter of the testator should at any time after his death contract a marriage with a person not of Jewish parentage and of the Jewish faith.) The Master of the Rolls stated inter alia:”1, that the words of a condition subsequent must describe the intention with sufficient distinctness to enable practical action to be based on them; 2, that the mere difficulty of proving facts is not of itself sufficient to render a clause of the kind I have to consider too vague; 3, that in practice these questions must be approached with a certain measure of common sense; 4, that an expression such as “of the Jewish faith” is not, in the context, to be construed by reference to theological arguments or to degrees of zeal in performance of religious duties; 5, that prima facie the most cogent evidence of a man’s faith is his own answer in the witness-box; and 6, that such a proviso as the Court had to consider and as I have to consider here is meant by a testator to be a practical working affair; and he observed that uncertainty invalidating religious conditions of the kind under examination was not discovered by Bench or Bar until the year 1940, and that in an English case, heard in 1931, the idea that a proviso in a will against a legatee being a Roman Catholic did not express a conception clear and precise enough to enable the Court to enforce it, apparently never entered anybody’s head.
Accepting, as I do, Lord Greene’s exposition, I must hold against Mrs. Higgins on the issue of uncertainty. It is just possible that different considerations may apply to the interests of her children, but on the further conclusion of law that I have reached I can limit my decision at this point to rejecting the claim of their mother, so fully argued before me, on the issue of uncertainty and leave the position of her children open.
This decision disposes of the main argument for Mrs. Higgins, but the suit presents another and a more interesting aspect. A girl’s father, who strives by his will and by other means to protect her during her minority against contracting a marriage with any man of a religion which he abhors, is doing his duty by the child and is acting within his rights; that is his legitimate exercise of patria potestas over a young girl whose moral welfare is committed to his care; but, so much being conceded, he ought to recognise the new status acquired upon her majority. One is tempted to examine the Constitution, in order to gauge the bearing of our polity on the problem, but the plaintiffs do not rely on finding a solution there. The modern trend of Equity is hostile to troublesome divesting conditions, but there is nothing novel in the settled policy (unless, as in In re Whiting’s Settlement. Whiting v. De Rutzen (1), the language absolutely precludes a benevolent construction) of restricting within reasonable bounds, in mercy to children beneficiaries, marriage conditions, precedent and subsequent; such cases as King v. Withers (2), Desbody v. Boyville (3), and Pullen v.Ready (4), are now more than two centuries old; and I see no adequate reason for confining that policy to conditions stipulating for marriage with consent; see Osborn v.Brown (5), approved in Brydges v. Wotton (6), by Sir Wm. Grant, M.R. It is significant that that learned judge, construing a condition divesting a life interest and a gift of capital to the donee’s children, expressly recognised that, when a legacy is to vest or to be paid at a particular age and there is a forfeiture clause on marriage without consent, the Court will read the clause as relating to a marriage under that particular age; see Lloyd v. Branton (7). That, I think, is the rule appropriate to the will now before the Court.
In Ireland, where a similar question arose upon a settlement, Sir Anthony Hart, L.C., in 1830, propounded the broad principle that “. . . if a rational exposition can be given, consistent with a fair interpretation of the language used, the Court would then relinquish its most valuable powers if it did not abandon a construction, which, though more consonant with the literal interpretation of the words written, leads to a capricious and irrational result.” ( Lairdv. Tobin (1). The same standpoint determined the decision one hundred years ago in Duggan v. Kelly (2), which exhibits a Court in Ireland defeating the ill-considered attempt of a bigoted testator permanently (as it seemed on a first reading) to fetter his children’s religious liberty from his grave, by confining an otherwise odious restriction, with an express gift over, to the minority or earlier marriage of a girl, whose legacy vested on majority or marriage, although the tenor of the will before the Court told much more heavily against that liberal construction than does the tenor of the will now before me and the temper of the times in matters of religion was notoriously different from the generous spirit of our own day in Ireland.
The framework of the will of Samuel Kelly was not unlike that of John McKenna’s will. The testator devised certain property to his sons and bequeathed small portions to each of his daughters, to be paid at the girl’s majority or on the day of her marriage with the consent of the executors, and, in case any son or daughter should at any time thereafter intermarry with a Papist or person professing the Papist or Roman Catholic religion or a reputed Papist, he revoked, annulled and made void to all intents and purposes all and every his devises and bequests to such child or children, and instead thereof he left to each and every one of his children so offending against this his last and most solemn injunction one shilling and no more, and he made over the forfeited gift to the other surviving children in equal shares. The will had to be construed by the Lords Commissioners, who, after hearing counsel on the eighteenth-century cases, restricted the condition to marriage of a daughter under age or the attainment of twenty-one years, that is to the time at which, as they held, her legacy, which was charged on freehold land, would vest; they held that, once a legacy had vested, the restrictive clause had no further effect, despite the words
“at any time hereafter,” which seemed to contemplate a ban on marriage with a Papist at any time after the date of the will. The Court was much impressed, on the language of the particular will, by the injustice that might, on a literal reading of the will, have resulted to the children of a first Protestant marriage, if their mother afterwards married a Catholic.
I have no formidable obstacle like the words “at any time hereafter” to overcome in construing the will of John McKenna. He did give some indication of a spirit similar to that of Samuel Kelly, when, more than four years after making his will, he was seized by the fear that his son might become a renegade and began a codicil against that event with the words: “Whereas I am anxious that my son John Robert McKenna shall not either marry or become a Roman Catholic”; but that expression of his mind is too remote from the provisions for his daughter and her issue to affect my judgment; it is a curious fact that the will and four codicils make no attempt to prevent the daughter from becoming a Catholic, though the testator might have died while she was still a minor. I observe further that John McKenna, unlike Samuel Kelly, in express terms contemplated his daughter’s marriage before her majority as a decisive investitive fact.
When John McKenna made his will on the 5th day of June 1936, his daughter had not reached her sixteenth birthday; she attained twenty-one years of age on the 29th day of June, 1941, when she was still unmarried, so that he made his will when she had still five impressionable years of infancy before her, for which he was entitled to take every precaution on her behalf. Let me see how he put his will on paper. He begins by appointing executors and trustees. He gives £1,000 to the Representative Church Body to apply the income towards repairing the fabric of the Protestant Church at Kilbeggan, where he lived. He then creates a trust fund of £4,000 and directs his trustees to use the income of the investments obtained with the money for the maintenance, education and advancement of his daughter (or so much thereof as shall be necessary) “until she attains the age of twenty-one years or sooner marries,” and, on her “attaining the age of twenty-one years or sooner marrying” to hold the fund and its accretions, thereinafter called “my daughter’s trust funds,”to pay the income thereof to her for life, for her separate use and subject to restraint on anticipation, and from and after her death upon trust for her issue as she shall appoint and, in default of appointment, for her children (per capita)and remoter issue (per stirpes) in equal shares; the will
makes alternative gifts over in case there is no issue of the daughter living at her death. Then comes the clause which has originated this suit:””Provided always that if my said daughter shall marry a Roman Catholic then from and after that event she shall forfeit all benefit under this my Will and my trustees shall hold my daughter’s trust funds upon such trusts of this Will as would have applied had my said daughter died on the date of her marriage with a Roman Catholic.” The testator then provides for his widow and then for his son, who takes the residue of the estate. The codicils, except the short extract I have given, are immaterial.
There are two alternative crucial dates, the date of a marriage by the daughter under age and the date on which she attains her majority; and on the crucial date, which was in fact the attainment of twenty-one years, the investments became “my daughter’s trust funds,” to be enjoyed as her own for life and to pass at her death to her children, who take vested interests at birth, or their issue.
The general language of the proviso against the daughter’s marriage with a Catholic can quite easily be read, and ought on the authorities, in my opinion, to be read, as a restriction referable to the only marriage actually mentioned in the preceding clauses of the will concerning the daughter’s legacy, that is a marriage by the girl during her minority. But Mrs. Higgins had passed her twenty-fourth birthday when she married a Catholic. Accordingly, I hold that her father’s trusts for herself and her issue remain wholly unaffected by her husband’s creed, because I am of opinion that I am bound on principle and precedent to restrict the divesting provision to the girl’s marriage under age, so that her Catholic marriage, celebrated after the trust funds had become her own for her life at her majority, cannot on the true construction of the will have the effect of divesting either her own life interest in the funds or those of her innocent issue.
In Re Will of John McKenna
Mary Priscilla Higgins and Others v The Governor and Company of the Bank of Ireland, George Walsh and John Robert McKenna
High Court.
2 May 1947
[1948] 82 I.L.T.R 10
Gavan Duffy P.
Before the date fixed for judgment the President intimated to counsel that he was prepared to hear argument on a point not raised by them at the hearing, namely the question whether the condition as to marrying a Roman Catholic should, following the decision in Duggan v. Kelly (supra), be limited to a marriage contracted by the daughter while she was under twenty-one years of age. This matter was argued on 24th April, 1947.
G. E. Gill: Where there is a condition in a Will against a legatee marrying without a specified consent, and where vesting or payment of the legacy is postponed until the legatee shall have attained a specified age, the condition as to marriage is, if possible, to be read as limited to a marriage without consent while under that age. Duggan v. Kelly (supra), is distinguishable as it was concerned with legacies directed to be paid to the legatees when they attained the age of twenty-one or married sooner. From that an intention can be inferred that the condition is limited to the period prior to payment. If not the trustees could not part with the money in safety. In the present case it is impossible to show such an inference. The capital never becomes payable to Mrs. Higgins and the trustees can safely comply with the terms of the Will and pay her the annual income until there is a breach of the condition. (He cited: Theobald on Wills, 9th Ed., pp. 471, 473, 474 and 553; Halsbury’s Laws of England, 1st Ed., Vol. 28, p. 596; 2nd Ed., Vol. 34, p. 115; Desbody v. Boyville, 2 P. Wms. 547; In re Williams: Williams v. Williams [1907] 1 Ch. 180.)
R. J. O’Neill: The testator referred to his daughter’s marriage under the age of twentyone. The forfeiture clause should be read as relating back to such a marriage. Even although the legacy vested on the death of the testator, she did not become entitled to receive the full income until she had attained age or married. Such marriage must not be to a Roman Catholic.
Gavan Duffy, P., giving judgment, said that the test for a valid condition subsequent had been tersely and simply formulated by Lord Parker in In re Sandbrook: Noel v. Sandbrook ([1912] 2 Ch. 471, at p. 477):— “… conditions subsequent, in order to defeat vested estates or cause a forfeiture, must be such that from the moment of their creation the Court can say with reasonable certainty in what events the forfeiture will occur”; the fatal event or events had to be described in clear language.
His Lordship stated that he was confronted by a familiar expression, used by a Protestant *12 farmer in his Will; he knew what the testator meant and nearly every citizen in every walk of life, whether Catholic or Protestant, knew the meaning conveyed by the words “marry a Roman Catholic.” The plain words used by a plain man had to be construed. It would be difficult to find an expression that conveyed more clearly what it meant throughout Ireland.
The argument for uncertainty relied on dicta in the House of Lords in Clayton v. Ramsden (supra), where on the language of a condition, a subsidiary question whether a person “was not of the Jewish faith” appeared to Lord Romer and other Law Lords on the evidence to depend on the degree of his adherence. Lord Romer stated that he did not know the meaning of the words and, until he knew that, he did not know to what the evidence as to a man’s creed was to be directed. Uthwatt, J., in In re Donn: Donn v. Moses ([1944] Ch. 8, at p. 13) said that there was in the words no means of ascertaining what particular tenet a person had to hold in order not to be of the Jewish faith. The issue was complicated by evidence of the existence of three distinct varieties of Judaism. In the present case there was no such problem. There was no difficulty about knowing the meaning of the words “Roman Catholic” on the lips of the ordinary citizen and no attempt had been made in Court to support the argument for uncertainty by evidence of the existence of any such difficulty. Walker, C., in Greene v. Kirkwood ([1895] 1 I. R. 130 at p. 144) said: “This is just as clear a condition as that a person should marry a Protestant or a Scotchman.” That dictum did not require any comment.
In Clayton v. Ramsden (supra) the decision of the Court of Appeal was reversed. The judgment delivered by Lord Greene, M.R., with the agreement of Clauson, L.J., and du Parcq, L.J., however, on the general question for decision in the present case, remained as a permanent contribution to the law. (See In re Samuel; Jacobs v. Ramsden [1942] Ch. 1 at p. 13.) The general principles enunciated by Lord Greene remained unaffected in spite of the difference of opinion, on appeal, on the clarity of particular words. The condition in the Will in Clayton v. Ramsden, created a forfeiture if the daughter of the testator should at any time after his death contract a marriage with a person not of Jewish parentage and of the Jewish faith. The Master of the Rolls stated:—
1. The words of a condition subsequent must describe the intention with sufficient distinctness to enable practical action to be based on them;
2. The mere difficulty of proving facts is not, of itself, sufficient to render a clause of the kind before the Court in the present case too vague;
3. In practice these questions must be approached with a certain amount of common sense;
4. That an expression such as “of the Jewish faith” was not, in the context, to be construed by reference to theological arguments or to degrees of zeal in the performance of religious duties;
5. Prima facie the most cogent evidence of a man’s faith is his own answer in the witness box;
6. Such a proviso as the Court had to consider was meant by a testator to be a practical working affair.
The Master of the Rolls went on to say that uncertainty invalidating religious conditions of the kind that had arisen was not discovered by the Bench or Bar until 1940; in an English case, heard in 1931, the idea that a proviso in a Will against a legatee being a Roman Catholic did not express a conception clear and precise enough to enable the Court to enforce it, apparently never occurred to anyone.
His Lordship, therefore, held against Mrs. Higgins on the question of uncertainty. It might be that different considerations would apply in the case of her children but that matter was left open.
That decision dealt with the main argument advanced on behalf of Mrs. Higgins. The case however had another and more interesting aspect. A girl’s father who strove by his Will and other means to protect her during minority against contracting a marriage with any man of a religion which he hated, was doing his duty by the girl and acted within his rights; that was his legitimate exercise of patria potestas over a young girl whose moral welfare was in his keeping; so much being admitted, however, he should recognise the new status acquired by her on her attaining her majority. The modern trend of equity was hostile to troublesome divesting conditions but there was nothing unusual in the settled policy of restricting within reasonable bounds, in mercy to child beneficiaries, marriage conditions both precedent and subsequent. Such cases as King v. Withers (Gilb. Ch. 26), Desbody v. Boyville (supra) and Pullen v. Ready (2 Atk. 587) were more than two hundred years old and there was no adequate *13 reason for confining that policy to conditions stipulating for marriage with consent. (See Osborn v. Brown, 5 Ves. 527, and Brydges v. Wotton, 1 V. & B. 134 at 138). It was significant to observe that Sir W. Grant, M.R., in Brydges v. Wotton, construing a condition divesting a life interest and a gift of capital to the donee’s children, expressly recognised that when a legacy was to vest or to be paid at a particular age and there was a forfeiture clause on marriage without consent, the Court would read the clause as relating to a marriage under that particular age. Lloyd v. Branton (supra). That was the rule appropriate to the Will in the present case.
In Ireland, when a similar question arose on a settlement, Sir Anthony Hart, L.C., in 1830, laid down the general principle that “… if a rational exposititon can be given, consistent with a fair interpretation of the language used, the Court would then relinquish its most valuable powers if it did not abandon a construction, which, though more consonant with the literal interpretation of the words written, leads to a capricious and irrational result.”Laird v. Tobin, 1 Moll. 543. The same view was decisive in the case of Duggan v. Kelly (supra) a hundred years ago which exhibited a court in Ireland defeating the ill-considered attempt of a bigoted testator permanently (as it appeared) to fetter his children’s religious liberty from his grave, by confining an otherwise odious restriction, with an express gift over, to the minority or earlier marriage of a girl, whose legacy vested on majority or marriage, although the tenor of the will before the court told much more heavily against that liberal construction than did the tenor of the will in the present case and the temper of the times in matters of religion was notoriously different from the generous spirit of the present day in Ireland.
The framework of Samuel Kelly’s Will was not dissimilar to that of John McKenna’s. He devised certain property to each of his sons and bequeathed small portions to each of his daughters, to be paid at the girl’s majority or on the day of her marriage with the consent of the executors. In case any son or daughter should at any time thereafter intermarry with a Papist or a person professing the Papist or Roman Catholic religion or a reputed Papist, he revoked, annulled and made void to all intents and purposes all and every his devises and bequests to such child or children, and instead thereof he left to each and every one of his children so offending against this his last and most solemn injunction one shilling and no more, and made over the forfeited gift to the other surviving children in equal shares. That will had to be construed by the Lords Commissioners, who, after hearing counsel on the eighteenth century cases, restricted the condition to the marriage of a daughter under age or the attainment of twenty-one years, that was, to the time at which, as they held, her legacy, which was charged on freehold land would vest. They held that, once a legacy had vested, the restrictive clause had no further effect, in spite of the words “at any time hereafter” which seemed to contemplate a ban on marriage with a Papist at any time after the date of the will. The court was much impressed, on the language of the particular will, with the injustice which might on a literal reading of the will, have resulted to the children of a first Protestant marriage, if their mother afterwards married a Catholic.
There was no formidable obstacle in the present case like the words “at any time hereafter” to be overcome. John McKenna gave some indication of a similar spirit to that of Samuel Kelly, when, more than four years after making his will, he was seized with the fear that his son might turn a renegade, and begun a codicil against such an eventuality as follows:—“Whereas I am anxious that my son John Robert McKenna shall not either marry or become a Roman Catholic.” That expression of his mind, however, was too remote from the provisions for his daughter or her issue to affect the judgment of the Court. It was an interesting fact that the will and the four codicils made no attempt to prevent the daughter from becoming a Catholic, although her father might have died while she was still a minor. John McKenna in express words contemplated his daughter’s marriage before her majority as a decisive investitive fact.
When the testator made his will on 5th June, 1936, his daughter was under sixteen years of age. She attained her majority on 29th June, 1941, at which time she was unmarried. Therefore he made his will when she still had five impressionable years of infancy before her, for which he was entitled to take every precaution on her behalf. In his will after gifts for Protestant charitable purposes he created a trust fund of £4,000 and directed his trustees to use the income of the investments obtained with the money for the maintenance, advancement and education of his daughter (or as much thereof as was necessary) “until she attains the age of twenty-one years or sooner marrys.”
They were then to hold the fund and its accretions called “my daughter’s trust funds” to pay the income thereof to her for life, for her separate use, subject to a restraint on anticipation and from and after *14 her death on trust for her issue as she should appoint and, in default of appointment, for her children (per capita) and remoter issue (per stirpes) in equal shares. There was then provision for alternative gifts over in case there was no issue of the daughter living at her death. Then came the clause which caused the present case:—“Provided always that if my said daughter shall marry a Roman Catholic then from and after that event she shall forfeit all benefit under this my will and my trustees shall hold my daughter’s trust funds upon such trusts of this my will as would have applied had my said daughter died on the date of her marriage with a Roman Catholic.” The testator then provided for his widow and for his son who took the residue of his estate.
There were two alternative crucial dates, the date of a marriage by a daughter under age and the date on which she attained her majority. On the crucial date, which, in fact, was the attainment of her majority, the investments became “my daughter’s trust funds” to be enjoyed as her own for life and to pass at her death to her children, who took vested interests at birth, or their issue.
The general language of the proviso against the daughter’s marriage with a Catholic could readily be read and ought on the authorities, to be read, as a restriction referable to the only marriage actually mentioned in the will before that proviso, that was a marriage by the girl during her minority. Mrs. Higgins, however, had passed twenty-four years when she married a Catholic. His Lordship therefore held that her father’s trusts for herself and her issue remained completely unaffected by her husband’s creed, as he was of opinion that he was bound on principle and precedent to restrict the divesting provision to the girl’s marriage under age. Her marriage to a Catholic, therefore, celebrated after the trust funds had become her own for life at her majority, could not, on the true construction of the will have the effect of divesting either her own life interest in the funds or those of her innocent issue.
Leopold Schlegel v The Attorney-General and Others
High Court.
28 June 1934
[1934] 68 I.L.T.R 139
Johnston J.
CONSTRUCTION SUMMONS.
The plaintiff as executor sought the determination of the Court on (inter alia) the following questions and matters arising on the construction of the last will of Mary Simmons.
(1a) Whether the bequest in the said will of “any money I possess” to the Superior-General of the Order of the Sisters of Charity and Christian Instructions of Nevers includes a sum of £4,000 lent by the Testatrix to the Convent of Lourdes, Withdean, Brighton, England.
(1b) If the answer to question 1a be in the negative does the said Will contain an implied gift of the said sum of £4,000 to the said Convent of Lourdes, Withdean, Brighton, England, subject to the provisions in the said Will as to payment of interest.
(1c) If the answer to question 1a be in the negative is there an Intestacy as to the said sum of £4,000.
(2) Whether the bequest in the said last Will of money “for the education of Priests for the Foreign Missions” is void for uncertainty.
The testatrix, who died on 19th September, 1926, at Our Lady’s Convent, Tonbridge, Kent, made her last will dated 30th August, 1926, as follows:—“This is the last will and testament of me, Mary Simmons, formerly of 7 Emorville Avenue, Dublin, at present residing at Our Lady’s Convent, Tonbridge, Kent, England, I hereby revoke all former wills and testaments made by me and declare this is my last will and testament, I appoint my daughter Mary Josephine Simmons, in religion Sister Emerentia, and the Reverend Father Matthew MacMahon, of Holy Cross College, Clonliffe, Dublin, and Leopold Schlegel, of 39 South Circular Road, Dublin, Executrix, Executors and Trustees of this my Will. I give and bequeath at my death any money I possess to the Superior-General of the Order of the Sisters of Charity and Christian Instructions of Nevers to be used by her for the founding of a Convent of the said Order in Ireland, and if this Convent has not been founded in five years after my death the money is to go for the education of Priests for the Foreign Missions. The proceeds of the sale of my house in No. 2 Dargle Road, Drumcondra, Dublin, to be handed over to my daughter, Sister Emerentia Simmons, to be used by her for whatever charitable work she desires. All the expenses incurred by my illness and death to be defrayed out of the interest due to me on the sum of Four Thousand Pounds lent by me to the Superior of Lourdes Convent, Withdean, Brighton, England. The Superior of the above-named Convent at Brighton must continue paying the sum of One Hundred and Fifty Pounds interest on the said sum of Four Thousand Pounds for two years after my death, one year’s interest to be paid to the Superior of Our Lady’s Convent, Tonbridge, Kent, the second year’s interest to be paid to the Superior of the Sisters of Nevers and Lungo Tevere, Cenci, Rome, and as long as the Sisters of Nevers hold the said Lourdes Convent I wish them to have a Mass celebrated once a month in their Chapel for the repose of my soul and the souls of my relations and friends.—Mary Simmons. Witnessed by Gerald L. Bunting, Warders, Tonbridge. Mary Creamer.”
An affidavit of due execution was filed.
The affidavit of Mary Josephine Simmons (in religion Sister Emerentia) contained, inter alia, the following averments:—I am the only child and the sole next-of-kin of the deceased, Mary Simmons, formerly of Dublin and of Our Lady’s Convent, Tonbridge, Kent, England. The said Mary Simmons, who was a widow, died on the 19th day of September, 1926, at the Convent, Tonbridge, Kent, England.
In or about the year 1920 my mother, who was of a deeply religious disposition, volunteered to lend and lent to the Convent of Lourdes, Withdean, Brighton, England (a Convent of the above Order in which I was professed and in which she was interested) a sum of £4,000 which was required by that Convent for the purpose of certain improvements. My mother arranged verbally with the Superior of the said Convent for the payment to her each year of £150 for interest on said loan. The said transaction was not evidenced in any way in writing and the said sum of £4,000 was not charged or secured in any way, but the interest thereon was paid punctually and the circumstances of the said loan were never disputed.
My mother at Our Lady’s Convent, Tonbridge, executed without legal advice her last will and testament on the 30th day of August, 1926. She had hoped to but was unable to go to consult Mr. John P. Collins. Solicitor. I prepared the draft of her said *140 last will, which was based on and taken in part from a copy of one of two documents. So far as I remember it was a copy of the document dated the 8th September, 1922 (a previous will which made a gift of the £4,000 to the Convent in question). The draft was typed and the typewritten document was duly executed by my mother as her last will I did not retain the rough draft of the said will.
Johnston, J., decided that there was a strong context which excluded the £4,000 from the testatrix’s gift of “any money I possess” and that there was an implied gift of the £4,000 to the Convent of Lourdes, Withdean, Brighton (subject, however, to the direction as to payment of interest), thus there was no intestacy His Lordship held that the bequest “for the education of Priests for the Foreign Missions” was void for uncertainty but declared that the will disclosed a general charitable intention and directed a scheme to be settled in Chambers accordingly. He allowed the parties their costs.
Kilroy v. Parker.
[1966] IR 314
Budd J.
BUDD J.:
10 June
In these proceedings the executors of Patrick J. Parker, deceased, seek the determination by the Court of certain questions arising on the construction of the deceased’s will, dated the 31st January, 1959, and one codicil thereto, dated the 10th August, 1960. The testator died on the 13th July, 1963, and probate of his said will and codicil was granted to his executors on the 13th October, 1963.
By his said will, after making certain other provisions and bequests not material, the testator made certain provisions for his nephews and nieces and their children in the following terms:
“Notwithstanding any direction heretofore contained in this my Will I Will Devise and Bequeath to my executors in trust my holding of Land Bonds and all the rest residue and remainder of my property and I Direct them to retain said Land Bonds or to reinvest same and any other residue from time to time in such trustee securities as my executors may be advised and out of the income therefrom after paying all legal and necessary expenses to pay to my niece Miss Marie Parker the sum of £3 per week clear for ten years after my death and to divide the balance of such income amongst such of my necessitous nieces and nephews (alive at the date of my death) and such of their children as my executors in their discretion may think fit. I Direct my executors on a date ten years from my death to realise the residue of my property including my Land Bonds and convert same into cash and to divide same in equal shares amongst all my nephews and nieces then living.”
The said codicil to the testator’s will contained a clause revoking the bequest to Marie Parker and is as follows:
“Whereas by my said Will I directed my executors to pay to my niece Miss Marie Parker a sum of £3 per week clear for ten years after my death Now I Hereby Revoke the said direction and bequest in favour of my said niece Miss Marie Parker and in substitution therefor I will devise and bequeath the sum of fifty pounds to my said niece Marie Parker.”
After providing for another bequest and dealing with a matter of identification, the testator confirmed his said will in all other respects.
The questions that have been raised in the Special Summons herein are as follows:
“1 (a). Is the devise and bequest and direction contained in the said will in the following terms: ‘I will devise and bequeath to my executors in trust my holding of Land Bonds and all the rest residue and remainder of my property and I direct them . . . to pay to my niece Miss Marie Parker the sum of £3 per week clear for ten years after my death and to divide the balance of such income amongst such of my necessitous nieces and nephews (alive at the date of my death) and such of their children as my executors in their discretion may think fit’ as altered by the revocations by the codicil of the direction to pay to the testator’s said niece the sum of £3 a week clear for ten years after the testator’s death and the substitution therefor of a legacy of £50 void for uncertainty or for any other reason and if so to what extent?
1 (b). If the answer to the above is in the negative:
(i) By what method or by what standards are the executors to decide which of the nieces or nephews of the testator and such of their children come within the class, ‘necessitous’? or
(ii) Are the executors entitled both as to person and as to amount to select from amongst the necessitous nephews and nieces of the testator and their children the persons to share in a division?
(iii) Are the executors entitled to distribute the entire of the income from the Land Bonds and other residue amongst such of the necessitous nephews and nieces and such of their children as they at their discretion may select and if so for what period?
2 (a). If the answer to 1 (a) above is in the affirmative or if there are no necessitous nieces or nephews of the testator is the direction and bequest contained in the will in the following terms: ‘I direct my executors on a date ten years from my death to realise the residue of my property including my Land Bonds and convert same into cash and to divide the same in equal shares amongst all my nephews and nieces then living’ void for uncertainty or for any other reason? or
(b) Are the executors entitled to divide the proceeds of the conversion of the said Land Bonds and residue amongst the nephews and nieces of the testator living (i) at the date of death of the testator; (ii) who shall be alive at a date ten years from the date of the testator’s death; (iii) or is there an intestacy as to the testator’s Land Bonds and residuary estate?”
The testator’s residuary estate has now been ascertained and the nephews and nieces of the testator are known to the executors. A number of their children are likewise known and since the names and addresses of the parents are known there should be no difficulty in ascertaining the others. The testator’s brothers and one sister all pre-deceased him with the exception of one brother, the defendant, Joseph E. Parker.
The main matter at issue is as to whether or not the gifts in trust of income and capital contained in the will are void for uncertainty. The contention made on behalf of the defendant, Joseph E. Parker, is that the gift of income is void for uncertainty and that since the whole residuary clause should be read as one the whole gift of residue is void and falls to be dealt with as on intestacy. Alternatively, it is contended that the gift of income is void for uncertainty and that there is an intestacy in respect thereof. The basis of the contention is that the gift by way of trust to the necessitous nieces and nephews of the testator takes the form of an imperative trust and that being so the result, as a matter of law, is that the gift will be void for uncertainty unless the whole class of potential beneficiaries can be ascertained. This, it is submitted, is something which cannot be done because the class of potential beneficiaries is not stated with sufficient certainty to enable it to be determined who are the members of the class. It is not possible, it is said, in the first place to give a sufficiently precise meaning to the word “necessitous” so as to enable the trustees to know who are included in the Glass amongst whom the income is to be distributed. It cannot be said, for example, whether it means those who are poor in the abstract sense of the word or those who are necessitous because of their particular circumstances in life. Further, that on the wording of the will it is uncertain as to whether the class is confined to nieces and nephews who are alive and “necessitous” at the date of the testator’s death or to those who are alive at the date of the testator’s death or become necessitous at any time during the period of ten years thereafter. Moreover, it is said, it is not clear as to whether or not the intention of the testator was to benefit the children of “necessitous”nephews and nieces whether they themselves were necessitous or not.
The bequest in the testator’s will in so far as income is concerned takes the form of a devise and bequest to the executors in trust of his residuary estate with a direction, after dealing with matters of retention of investments and re-investment, out of the income therefrom, after paying all legal and necessary expenses, to pay a sum of £3 per week to a niece, Miss Marie Parker, for a period of ten years after his death and to divide the balance of such income amongst such of his necessitous nieces and nephews alive at the date of his death and such of their children as his executors in their discretion may see fit. Before dealing with the legal nature of a bequest in this form there is a preliminary matter to be considered. The gift in trust to Miss Parker was revoked by the codicil but the will was thereby in all other respects confirmed. It was submitted that, since the testator must manifestly know that the elimination (by the codicil) of the weekly payment to be paid out of the income would involve the result that the balance of the income would then be such balance as remained after the payment of all legal and necessary expenses, the confirmation of the will in all other respects indicated that his true intention was that this larger balance was to be divided in the fashion indicated. I agree with this view as to the proper construction of the clause as affected by the codicil and consequently proceed to deal with the nature of the bequest in trust on that basis.
The clause I am dealing with contains a direction to the executors to divide the balance of the income of the residuary estatein effect, the whole income, having regard to the result of the operation of the codicilamongst the class but according to their discretion. By reason of contentions made during the hearing, a question arises as to whether the testator has by virtue of the words he has used created a discretionary power or a power in the nature of a trust. The importance of the distinction as bearing on the question of uncertainty is as stated by Mr. Justice Cross in his judgment in Re Saxone Shoe Co., Ltd’s Trust Deed(1), at p. 910, is that “a mere power given to trustees to apply income or capital for the benefit of members of a class, all the members of which cannot be ascertained, with a trust in default of the exercise of the power, is valid, whereas an imperative trust for the division of income or capital between such members of a class as the trustees may select is invalid if the whole class of potential beneficiaries cannot be ascertained.” He amplified this, at p. 911, by a reference to the views of Mr. Justice Harman expressed in In re Gestetner Settlement, Barnett v.Blumka (2) as to the nature of the distinction. “He” (that is, Harman J.) “pointed out that, though trustees could not release any such power given to them and were under a duty to consider from time to time whether they would exercise it, they were under no duty to exercise it, and that even if all the objects of the power were ascertainable and joined together in calling on the trustees to exercise it, they could not compel them to do so. This being the position Harman J. saw no reason why trustees before exercising a power should have to be able to survey the whole field of objects. On the other hand, he considered that if trustees had a duty to distribute the capital or income in question it was essential that they should know before they performed their duty who were the potential beneficiaries among whom they had a right of selection. This, he thought, was implicit in the judgment of Lord Tomlin in Re Ogden, Brydon v. Samuel (1).This view of the position was accepted by the Court of Appeal in the Broadway Cottages Case (2). Jenkins L. J. pointed out in that case (2) that if the Court had itself to execute a trust of this character because of the failure of the trustees to do so, it could only execute it by way of implying a trust in default of selection among all the beneficiaries equally, and that such a trust must necessarily fail unless all the beneficiaries could be ascertained.” Mr. Justice Cross himself proceeded on the basis of accepting this statement of the distinctions stated and the results flowing therefrom as correct.
From a perusal of this case and those referred to therein, I am satisfied they establish in cases of the type under review, on the one hand, that in cases where the trustees have a duty to distribute the income in question it is essential that they should know, before they perform their duty, who are the potential beneficiaries among whom they have the right of selection, and, on the other hand, in the case of a power with a gift over that there is no reason why trustees, before exercising the power, should have to be able to survey the whole field of objects. The practical result is that a mere power to apply income for the benefit of the members of a class, all of whom cannot be ascertained, with a gift over in default, is valid, and an appointment can validly be made to a person who can properly be said to be a member of the class. But an imperative trust for the division of income between such members of the class as the trustees may select is invalid unless the whole class of potential beneficiaries can be ascertained. It was not suggested, nor do I think it could be, that there is any distinction in principle between English and Irish law on these matters.
Proceeding, then, on an acceptance of this view of the law, the first question that arises is into which of the two categories stated do the provisions of the clause in question fall discretionary power, or power in the nature of a trust.
The distinction between trusts, mere powers and powers in the nature of a trust and the function of the Court on a failure of execution in each case is dealt with by Lord Eldon in Brown v. Higgs (1), at p. 570, as follows:
“It is perfectly clear, that, where there is a mere power of disposing, and that power is not executed, this Court cannot execute it. It is equally clear, that, wherever a trust is created, and the execution of that trust fails by the death of the trustee, or by accident, this Court will execute the trust . . . But there are not only a mere trust and a mere power, but there is also known to this Court a power, which the party, to whom it is given, is intrusted and required to execute; and with regard to that species of power the Court consider it as partaking so much of the nature and qualities of a trust, that if the person, who has that duty imposed upon him, does not discharge it, the Court will, to a certain extent, discharge the duty in his room and place.”
The question then at issue, as I see it, is whether the testator gave to his executors a mere power of a purely discretionary nature to appoint the income of the fund, or is there here that mixture of trust and power of a nature that the trust is imperative while the method or mode of execution is of a discretionary nature. First of all, it is to be noted that the residuary bequest is made expressly in trust. Next, the provision with regard to the disposal of the income is directory in form. The executors are directed to divide the income amongst such of the class as they in their discretion may think fit. It is not a case of the executors being given a discretion to decide whether or not the income is to be divided at all and if so amongst which members of the class, but rather is it a case of a direction as part of the trust to divide amongst such of the class as the executors may think fit.
Viewing the clause as a whole, I take the view that the power given to the executors is in the nature of a trust which they are required to perform, that is to say, that it is of an imperative nature. That being so, the bequest will be invalid unless the whole class of potential beneficiaries can be ascertained. The next question, then, is whether the class as an entity can be found and, if so, can its members be fully ascertained?
The first question is, what is the class? The relevant portion of the clause is “to divide the balance of such income amongst such of my necessitous nieces and nephews (alive at the date of my death) and such of their children as my executors in their discretion may think fit.” The matter to be decided is whether or not the words “amongst such of my necessitous nieces and nephews (alive at the date of my death) and such of their children as my executors in their discretion may think fit” indicate with sufficient clarity the class of potential beneficiaries, or is the description of the class so vague that it is not possible to determine who are the persons of whom the class is composed, so that the bequest is void for uncertainty?
It is contended in the first place that the word”necessitous” is itself vague and uncertain in meaning. Does it mean, for example, a person in dire need or one who is in straitened circumstances only; or is a person to be regarded as necessitous if, because of his station in life, he faces financial stress as distinct from one who is by any standards necessitous? In the event of the failure of the trustees to execute the trust, could the Court, it is asked, find the persons who fell into the category of necessitous nephews and nieces?
It is said, moreover, that in the context there are other elements of uncertainty. For example, are the potential beneficiaries nephews and nieces who are necessitous at the date of the testator’s death and their children, or does the class fluctuate during the ten-year period according to whether the nephews and nieces become necessitous or affluent during the ten-year period? Again, is the class confined to necessitous nephews and nieces and such of their children as are necessitous or does it extend to all the children of necessitous nephews and nieces, whether or not some or all of such children are themselves necessitous?
There are obviously difficult problems of construction to be determined, but before considering them it is desirable to consider the principles upon which a Court approaches the problem of deciding whether or not a gift is to be held void for uncertainty. The difficulties in interpreting a disposition which is ambiguously expressed are not enough to render the disposition void for uncertainty. To be void for this reason it must be utterly impossible to put a meaning on it. I quote from Simonds’ edition of Halsbury’s Laws of England, vol. 39, para. 1514, which concludes with these words:”The Court is, furthermore, reluctant to hold a gift void for uncertainty, and adopts the benevolent rule that if there is ever so little reason in favour of one construction of an ambiguous gift more than another, the adoption of construction so favoured is at least nearer the intention of the testator than that the whole disposition should be void and the persons entitled on an intestacy let in.” The words of Lord Brougham, spoken in Winter v.Perratt (1), cited with approval by Mr. Justice Murnaghan in Brown v. Gregg (2), would seem applicable to a bequest of this kind. They are (at p. 230):”Another principle is equally clear: we ought not, without absolute necessity, to let ourselves embrace the alternative of holding a devise void for uncertainty. Where it is possible to give a meaning, we should give it, that the will of the testator may be operative; and where two or more meanings are presented for consideration, we must be well assured that there is no sort of argument in favour of one view rather than another, before we reject the whole.”
In the chapter dealing with the doctrine of uncertainty in Jarman on Wills it is pointed out that “in the construction of wills the most unbounded indulgence has been shown to the ignorance, unhelpfulness and negligence of testators”and that “no degree of technical informality or of grammatical or orthographical error, nor the most perplexing confusion in the collocation of words or sentences, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author.” It is only if he is unable after every endeavour to penetrate the obscurity in which the testator has involved his intention that failure of the disposition is the consequence. It is also pointed out that in modern times, owing to the more matured state of the doctrines relating to the construction of wills and the more practised skill in applying them, instances of testamentary gifts being rendered void for uncertainty are now of less frequent occurrence than formerly. The author of the 8th edition (1951), in footnote (d) to page 472 of volume 1, says that it may be doubted whether the rule in favour of the heir and next-of-kin (against their being ousted unless by express words or necessary implication) has much, if any, real force at the present day. “The presumption,” the note continues,”is rather the other way, namely, that when a man makes his will he does not intend to die intestate as to any part of his property.”
On the issue as to the undertainty of the bequest it was pointed out that in accordance with the principles of construction stated it would have to be found that the ascertainment of the question as to who were “necessitous” nieces and nephews was one incapable of resolution. A number of cases were cited to me as indicating that Courts had from time to time found classes of persons designated in bequests by somewhat similar or analogous terms sufficiently ascertainable as to enable these Courts to form the view that the class of potential beneficiaries could be found with the ensuing result that the bequests were valid, and it will be useful to refer to some of these cases as helpful guides.
As far back as 1765 in a case of Brunsden v. Woolredge (1),a bequest to the testator’s mother’s poor relations was considered. The Master of the Rolls, Sir Thomas Sewell, took the view that the word “relation” was a vague term but that the meaning of it had been confined to those who would take under the Statute of Distributions. As to the addition of the word “poor” his opinion was that the true construction of the words was “such of my mother’s relations as are poor, and proper objects.” He apparently did not regard the addition of the word “poor” as making the gift uncertain. In a foot note (1), appearing at p. 242 of Jarman (8th ed., 1951), it is pointed out that charity was not the basis of the decision.
The case of Gower v. Mainwaring (2) is one where a provision in a deed of trust was considered by which the trustees were to give the residue of the settlor’s real and personal estate among his friends and relations, where they should see most necessity, and as they should think most equitable and just. Two of the trustees died and the third refused to act. The Lord Chancellor, Lord Hardwicke, considered how far the Court could exercise the discretion of the trustees. In the first instance he took the view that the word “friends”was synonymous to “relations” on the basis that otherwise”it was absurd.” The report is not easy to follow and there appears from the rest of the judgment to be an error in the report where in the eighth last line the word “cannot”appears where “can” is meant. In any event, it seems that the Lord Chancellor’s final view of the matter, to quote what appears on p. 109, was that the remainder should be divided between two persons “according to their necessities and circumstances which the Master should inquire into, and consider, how it might be most equitably and justly divided.”It emerges from the case that it was the view of the Lord Chancellor, that though it was difficult for the Court to do so, it could judge of the necessities of the beneficiaries by a reference to the Master, from which I deduce that he did not consider that a trust whereby trustees were to give a residue amongst relations, where they should see most necessity,
was too vague or uncertain to be carried out by the Court. If degrees of necessity amongst a class can be found, is there any reason why those in necessity, or “necessitous,” cannot likewise be found?
In the more modern case of Magee v. Magee (1) it would appear implicit in the decision of the Privy Council that a trust to pay the income of residuary real estate “to such of my children from time to time as to my executors shall appear to be most in need, the payments to be at the absolute discretion of my executors,” was not void for uncertainty. Lord Russell of Killowen said that, read according to their literal and natural meaning, the words used by the testator seemed free from ambiguity. The observations which I have made with reference to the case of Gower v.Mainwaring (2) seem equally applicable to this case.
The case of Mahon v. Savage (3) is a case which has some bearing on the matters at issue in this case. The testator bequeathed to his executor one thousand pounds “to be distributed amongst his poor relations, or such other objects of charity as should be mentioned in his private instructions to his executor.” No such instructions were in fact left. Admittedly, the bequest was stated by the Lord Chancellor to be meant as a charitable bequest. Further, the executor had a discretionary power of distribution. The Master was however directed to inquire and report who were the poor relations of the testator and did so, so that the Court must have been of opinion that the class of poor relations was susceptible of determination. Moreover, it was found that a person poor at the time of the testator’s death who became affluent afterwards should not be entitled to a payment made to him unless found at the time of payment to have been a poor relation within the meaning of the will, which wouldprima facie at any rate seem to indicate that a class of poor relations may be of a fluctuating variety without that of itself creating invalidity because of uncertainty.
The Scottish case of Mitchell’s Trustees v. Fraser (4) is one having some features not dissimilar from the present case.
The clause in the testator’s trust disposition and settlement which came before the Court for consideration was that whereby he directed his trustees “from time to time, as they think proper, to make such special payments out of the free residue and remainder of my estate to such of my children or children’s children as they may think most deserving, with special instructions to relieve any of them who may appear to be in want, provided always that they have not brought themselves into such circumstances by their own misconduct. My great desire is to assist merit and thrift, and not to acknowledge indolence or folly.” One of the questions which had to be decided was whether or not the direction was void for uncertainty.
The Court of Session held that “deserving”meant deserving of pecuniary assistance and accordingly the clause committed an intelligible and workable discretion to the trustees and was not void for uncertainty. It will be observed, however, that the directions as to payments to be made out of the residue were of a two-fold nature, that is,”to such of my children or children’s children as they may think most deserving, with special instructions,” however,”to relieve any of them who may appear to be in want.”
Dealing with what had been suggested to be “clashing criteria” in regard to the elements of merit and poverty in the selection of the beneficiaries, Lord Guthrie, having stated that he was unable to see the inconsistency, said that he read the clause thus:”The payments to the children or children’s children are to be special payments, that is to say, they are not to be made en bloc, but are to receive separate consideration. The general criterion is to be that the recipients must be ‘deserving,’ that is, deserving, as Lord Salvesen put it, of pecuniary assistance, and those are to be preferred who are ‘most deserving of assistance,’ subject, however, to the proviso that, among those who are most deserving of assistance, relief is to be given to those who are in actual want. The testator evidently contemplated payment to beneficiaries who, without being in actual poverty, might be unable to secure the education, or other advantages, proper to their station in life, such payments in short as, had he survived, he himself would naturally have made, in the shape of gifts, to his children or grandchildren. At the same time, wishing his trustees to act as he himself would have done had he survived, he ordered them specially to relieve those in want, by which language I think he had in view that they should give a preference to any who might be in actual want.” From this it is clear that the trustees in order to carry out the testator’s directions would have to find out the class of children or children’s children in want. Since Lord Guthrie found that the clause was not void for uncertainty, it follows that he cannot have regarded a class or sub-class, described as “who may appear to be in want,” as being too uncertain to be ascertained. From what he said later it is clear that he was at that stage of his judgment dealing with the trust as being non-charitable.
The analogy is obvious. If those “in want” can be discovered so, I would think, can those in the very similar position of being “necessitous.” I have not failed to notice that the provision as to the payments to be made were to such “of my children or children’s children as they may think most deserving,” thus giving a discretion to the trustees to decide that matter, but it would appear that those in want would have to be found in an abstract fashion.
Lord Salvesen in the course of his judgment said that”The word ‘deserving’ is, of course, open to interpretation, but I think in the collocation in which it occurs the word must be construed as meaning deserving of pecuniary assistance.” Later he points out that “at any time the circumstances of the children or grandchildren might have been or may yet become such as to call for an exercise by the trustees of their discretionary powers.” Further on, he says that “their duty is from year to year to consider whether there is any beneficiary in whose favour they ought to exercise the power bestowed on them.” I have drawn attention to these portions of the judgment because I consider that they indicate a certain analogy to the present case. The trust was discretionary but nevertheless it would appear that before the discretion was to be exercised, a class had to be found, namely, those deserving of pecuniary assistance: after that the discretion is to be exercised. If a class of children or grandchildren can be found deserving of pecuniary assistance, is there any reason why a class of “necessitous”nephews and nieces cannot be found? Is the one any more uncertain than the other? Moreover, while there is the distinction that in the case under review the direction was to make the payments from time to time, there is no suggestion that the difficulty involved in carrying out a periodical inquiry is anything more than a difficulty to be overcome. It is not a difficulty of such an insuperable nature as to render the gift void as being of an uncertain nature.
Some other cases were referred to as indicating the very wide descriptions of classes of beneficiaries that have been found not so uncertain in meaning as to render the gift void. Cross J. in the Saxone Shoe Co., Ltd’s Trust Deed Case (1)took the view that the word “dependant” as defined in the deed that he was construing in that case was not too vague to serve as the description of a beneficiary under a trust or of an object of a power. He was dealing with a deed of trust executed by a company with the object of establishing a fund for the benefit of its employees. The fund or the income thereof was in the discretion of the directors to be applicable to certain specified purposes, including the provision of benefits for employees or dependants. The word”dependant” was defined to mean any person “who is or was wholly dependent or in part dependent or in the opinion of the directors wholly or in part dependent upon the earnings of an employee or a former employee.” He said, at p. 911:”Even if the definition had been simply ‘any person who is or was wholly or in part dependent on the earnings of an employee or former employee,’ I should have thought that the picture which it conjured up was sufficiently distinct to enable the trustee or the Court to say whether one man was or was not ‘dependent’ on another.” I respectfully agree. The fact is, however, that a determination of who is a dependant is often fraught with great difficulty, but that is immaterial in considering whether the description is sufficiently certain. In the case of Brown v.Gregg (1) the validity of a power given to the testator’s sister to dispose of his estate in remainder amongst such of his Irish relatives as she should see fit was in question. Mr. Justice Overend had found the gift void for uncertainty on the ground that it was impossible to determine what the testator meant by the expression “Irish relatives.” The Supreme Court took the view that it was not necessary for the exercise of a power of appointment that the donee of the power should be able to range in his mind every person capable of taking under the power. It was sufficient if the persons chosen came properly within the description of the class amongst which an appointment might be made. It was a case of a power of selection as distinct from an imperative trust; but it is implicit in the decision, I think, that it was at least possible to discover whether or not a particular person fell within the description which would necessitate being able to give some meaning to a word of a very indefinite nature.
It was also submitted that to be valid a trust of this nature must be one which the Court can control and execute and that by reason of the uncertainty as to its objects the Court could not execute this trust, with the result that it is invalid. The attitude of the Court towards the execution by the Court of trusts of this nature must therefore be considered. The principle is stated concisely by Jenkins L.J. in Inland Revenue Commissioners v. Broadway Cottages Trust (2),at pp. 29-30, that in order to be valid a trust must be one which the Court can control and execute. Before stating the principle in concise form he referred to Lord Eldon’s statement of the principle in Morice v. Bishop of Durham (3), at pp. 539, 540:”As it is a maxim, that the execution of a trust shall be under the control of the Court, it must be of such a nature, that it can be under that control; so that the administration of it can be reviewed by the Court; or, if the trustee dies, the Court itself can execute the trust; a trust therefore, which, in case of maladministration could be reformed; and a due administration directed; and then, unless the subject and the objects can be ascertained, upon principles, familiar in other cases, it must be decided, that the Court can neither reform maladministration, nor direct a due administration.” The important point, so far as this case is concerned, is that unless the objects can be ascertained upon principles familiar in other cases it must be decided that the Court can neither reform maladministration nor direct a due administration.
In Brown v. Higgs (1) Lord Eldon dealt with the cases of fiduciary or imperative powers. “If,” he said, “the power is a power which it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee for the exercise of the power, and not as having a discretion whether he will exercise it, or not; and the Court adopts the principle as to trusts; and will not permit his negligence, accident, or other circumstances, to disappoint the interests of those, for whose benefit he is called upon to execute it.” Further, Lloyd Kenyon M.R., in Pierson v. Garnet (2), at p. 46, stated that if the trust can by any possibility be executed by the Court the non-execution by the trustee shall not prejudice the cestui que trust. The Court will even execute the trust retrospectively: per Turner L.J., in Edwardsv. Graves (3). It is stated in Lewin on Trusts (15th ed., 1950), at p. 696:”Where the discretion of the trustee is to be governed by some rule, or to be measured by a state of facts, which the Court can inquire into as effectually as a private person, then it can look with the eyes of trustees, and will substitute its own judgment for that of the individual.” Reference is made to the case of Gower v.Mainwaring (4), already referred to, and the words of Lord Hardwicke are cited as in point:”What differs it from the cases mentioned, is this, that here is a rule laid down for the trust. Wherever there is a trust or powerfor this is a mixture of bothI do not know the Court can put itself in the place of those trustees to exercise that discretion. Where trustees have power to distribute generally according to their discretion without any object pointed out, or rule laid down, the Court interposes not, unless in case of a charity, which is different, the Court exercising a discretion as having the general government and regulation of charity. But here is a rule laid down. The trustees are to judge on the necessity and occasions of the family; the Court can judge of such necessity of the family. This is a judgment to be made on facts existing; so that the Court can make the judgment as well as the trustees; and, when informed by evidence of the necessity, can judge what is equitable and just on this necessity.”
It would thus appear that in a case where it is incumbent on the trustees to judge the necessity and occasions of the family, the Court can likewise judge the necessity of the family, the judgment to be made on facts existing when informed by evidence. If the circumstances are such that the trustees can execute the trust, the Court will execute it on their failure to do so. The question to be determined therefore remains the same, namely, whether the circumstances are such that the trustees can execute the trust?
From this I turn to construction, applying two principles: that the gift should not be found void unless it is impossible to put a meaning on it, and that every endeavour should be made to elicit from the contents of the instrument the intentions of the testator, who, having made a will, has demonstrated that he does not intend to die intestate.
Having accepted the contention that the clause constitutes an imperative trust, I have first to decide whether or not the class of potential beneficiaries can be determined. Assuming for the moment that the purported class is that of”necessitous” nieces and nephews, without any other complications, it is said that the descriptive word”necessitous” is itself so vague in meaning that a class of”necessitous” nieces and nephews is incapable of ascertainment.
It is said in the first instance that is is impossible to say whether the testator by the use of the word “necessitous”in the context meant that the class intended to be benefited were those who were necessitous by any standard or were those who were necessitous because of their particular circumstances in life during the ten-year period.
In my view there are sufficient indications as to which of these categories of persons the testator intended to benefit. The bequest in trust is mandatory in form and there is no gift over. The testator, therefore, must be taken to have contemplated that the income of the trust fund would be distributed during the period. There is a clear intention to benefit some class, which would be frustrated if there was no distribution of the income. It follows that the testator envisaged that there would be amongst his nieces and nephews and their children during the ten-year period a class who would be eligible as the objects of his bounty. The chances of some of these persons being absolutely poverty-stricken during the ten-year period is obviously a much more remote contingency than that some of these persons would be, or become, necessitous because of their particular circumstances of life during the same period. So much more remote is it that it would seem to me that the more rational construction to give to the word “necessitous” is necessitous according to the particular circumstances in life of the individual whose eligibility comes under consideration. Only thus, I think, can proper force be given to the clearly expressed intention that the income was to be distributed during the period.
While the view that I have just expressed narrows the field of selection to a class of persons who are necessitous because of their particular circumstances of life there is next to be considered whether the word “necessitous”construed in that fashion is yet so vague as to void the gift because of the difficulties of ascertaining the whole class to be benefited.
In considering whether the description of the class as”necessitous,” construed as above, is so vague as to import that type of uncertainty which will void a bequest, one has to bear in mind that, as stated in Jarman on Wills (8th ed., 1951), at p. 898:”A trust in favour of a class will not fail merely because it is difficult to ascertain the members of the class.” This statement finds considerable support in the case of Re Ogden, Brydon v. Samuel (1). A testator bequeathed part of his residuary estate to Sir Herbert Samuel “to be by him distributed amongst such political federations or associations or bodies in the United Kingdom having as their objects or one of their objects the promotion of liberal principles in politics as he shall in his absolute discretion select and in such shares and proportions as he shall in the like discretion think fit.”
Sir Herbert Samuel stated in an affidavit that he was able to ascertain all the bodies in the United Kingdom that fell within the bequest. Lord Tomlin stated, at p. 682, that, leaving out another question, all he had to consider was”whether there is such uncertainty in the field of selection that it is impossible for the selector to determine from which institutions he is to select.” He continued:”The question is one of degree in each case, whether having regard to the language of the will, and the circumstances of the case, there is such uncertainty as to justify the Court in coming to the conclusion that the gift is bad.” He referred to the evidence of Sir Herbert Samuel, who had stated that he could in fact ascertain by inquiring all the bodies that could come within the description, and said that he took the view that there was certainty in the field of selection. Having found that there was a class capable of ascertainment, he added the words, “and in my view the bequest is not void on the ground that the field was too vague.” It is evident that the ascertainment of bodies having as their objects or one of their objects the promotion of liberal principles in politics was something most persons would regard as an exceedingly difficult task. While not overlooking the fact that Lord Tomlin had Sir Herbert Samuel’s affidavit before him when stating that this could be done, it is, I think, implicit in the decision that the mere fact that difficulty in ascertaining the members of the class arises is not a ground for holding that a bequest to such members as may be selected by the person designated to do so is void for uncertainty. It must be impossible for the selector to determine from whom he is to select. It is also to be observed that in that case no question of a charitable bequest arose.
Is it then impossible for the executors of the testator to ascertain the members of the class amongst whom their selection is to be made? In the first place I must point out that this is a family settlement. The wider class of nieces and nephews, be they those who were alive at the time of the testator’s death or those who may be in existence during the ten-year period, are persons ascertained or ascertainable at any point of time and they constitute a comparatively small class in numbers. There is no reason to suppose that their circumstances in life cannot be discovered so that the executors, in whom the testator evidently reposes confidence, cannot exercise their good sense in deciding which amongst them are “necessitous” in the sense I have indicated. In saying this I am not oblivious of the fact that the bequest in trust in the will does not in form give a power of selection amongst such of the nephews and nieces as shall in the opinion of the executors be necessitous. That is, however, I think the practical result with the limitation that the executors as trustees must act on an opinion honestly formed. On this point the views of Jenkins L.J. in In re Scarisbrick, Cockshottv. Public Trustee (1) are very relevant. Before quoting his observations I should say that he was dealing with the question whether or not a trust in favour of such relations as “in the opinion of the survivor of” the testatrix’s “son and daughters shall be in needy circumstances and . . . for such interests and in such proportions . . . as the survivor . . . shall by deed or will appoint” was a trust for the relief of poverty. His observations with regard to the qualifying words “in the opinion of the survivor . . .” were directed to a consideration as to whether their effect on the character of the trust might not be such that an appointment could be made to a person not a proper object of charity. His remarks however seem to me to be equally applicable in principle to a non-charitable bequest. He says, at p. 650:”‘Poverty’ is necessarily to some extent a relative matter, a matter of opinion, and it is not to be assumed that the person made the judge of ‘needy circumstances’ in the present case would have acted otherwise than in accordance with an opinion fairly and honestly formed as to the circumstances, needy or otherwise, of anyone coming into consideration as a potential object of the power. Under a similar trust which did not expressly make the appointor’s opinion the test of eligibility, the appointor would in practice have to make the selection according to the best of his or her opinion or judgment. The express reference to the appointor’s opinion merely serves to reduce the possibility of dispute as to the eligibility or otherwise of any particular individual on the score of needy circumstances. Accordingly, I dismiss the words ‘in the opinion of the survivor’ as having no material bearing on the character of this trust.” With this view I respectfully concur.
It must frequently arise in cases where a trust is created in favour of persons to be selected by the donee of a power out of a class that the person exercising the power of selection must first satisfy himself as to who are the persons constituting the class. He must decide who are the persons eligible to be members of the class. That is a matter on which he must form an opinion, whether or not his opinion is expressly made to be the test of eligibility under the terms of the trust instrument. It has thus no material bearing on the character of the trust, as Jenkins L.J. points out, whether the test of eligibility is expressly made dependent on the opinion of the appointor or not, because the same result must follow in practice in the case of a similar trust where the appointor’s opinion is not expressly made the test of eligibility. It follows that cases decided on questions as to uncertainty on the construction of clauses in wills or trust instruments similar to the clauses in the testator’s will in this case, but where the opinion of the appointor was made the test of eligibility, are in point. In this light it would appear that the cases of Gower v. Mainwaring (1), Magee v. Magee (1) and Mitchell’s Trustees v. Fraser (2) apply with considerable force to the present case, in that in practice the executors in this case are called upon to form an opinion as to what persons form the class from whom their selection is to be made. It then becomes a question whether the difficulties in determining the class are so different in this case to the difficulties in those cases that they fail to support the contention that the bequest in trust is valid.
The trust in the case of Magee v. Magee (1) was to pay “to such of my children from time to time as to my executors shall appear to be most in need.” In Mitchell’s Trustees v.Fraser (2) the direction to the trustees was “from time to time, as they think proper, to make such special payments out of the free residue and remainder of my estate to such of my children or children’s children as they may think most deserving, with special instructions to relieve any of them who may appear to be in want.” In Gower v. Mainwaring (3)the trust was to give the residue of the settlor’s real and personal estate among his friends and relations where they should see most necessity and as they should think most equitable and just.
In all these cases the trustees would have had to obtain all the necessary information as to the financial circumstances of the potential class of beneficiaries in order to enable them to exercise their discretion of selection in each case. Admittedly, it may be more difficult to find what members of a class are necessitous according to their circumstances in life than to say which, as between several persons, are in more necessity than others. However, it would seem to have been accepted in these cases that sufficient data can be collected and adjudicated upon in order to determine whether one of a class is more necessitous than another. Given that such data can and ought to be secured, it would seem to me that very similar material could be found which would enable a proper finding to be made as to which of a comparatively small number of designated persons in a family trust should properly be regarded as being necessitous according to their particular circumstances.
It may be said that the case of Mitchell’s Trustees v.Fraser (2) indeed goes beyond the present case in one particular respect in that in that case a class of children or children’s children who might appear in want would have to be found to enable the trust to be executed. If those in want amongst a limited class can be found, then, surely, those who are necessitous in their circumstances in life amongst a likewise limited class can also be found. The case of Brunsdenv. Woolredge (1) is also very much in point in that the distribution of the residue was to be amongst the poor relations of the testator’s mother which involved finding a class of poor relations. So far, therefore, I do not consider that a trust to divide amongst a class of the testator’s necessitous nephews and nieces according to the discretion of his executors is so uncertain as to be void on the ground that such a class is incapable of ascertainment.
Other problems of construction however arise. Leaving aside for the moment questions on the position of children of nephews and nieces, is the nature of the trust one to divide the income of the residue amongst such nephews and nieces as are alive at the date of the testator’s death and are at any time during the stipulated ten-year period “necessitous,” or is the gift confined to such nephews and nieces as are both alive and “necessitous” at the time of the testator’s death? It is said that here there is an ambiguity in that it is not possible to say which of two possible classes are to take and uncertainty results. This will be so unless the testator has given sufficient indication of the class which he intended to benefit. In my view two things are reasonably clear: the first is that the testator intended, in so far as nephews and nieces were concerned, to benefit only such of them as were”necessitous” and, secondly, that he intended to benefit such as were necessitous over a tell-year period. That persons’ financial fortunes vary from time to time is, I think, the type of elementary knowledge that should be imported to an apparently rational and literate testator. Where two constructions of a clause in a will are open that construction should be given to the clause which will produce a rational result consistent with so much of the testator’s intentions as are clear rather than to adopt such a construction as would impute an irrational and inconsistent intention to him. To confine the testator’s bounty as a matter of construction to nephews and nieces not only alive, but also necessitous, at the point of time of his death, would seem entirely inconsistent with an intention to aid only those in necessity during the ten-year period, in that those necessitous at the date of death might well cease to be so later on during the period, and others, not necessitous at the date of death, might well become so later. In my view the testator, by indicating an intention to benefit those of the class of nephews and nieces that were necessitous over the ten-year period has thereby given a clear indication that he did not intend to confine the gift to such nephews and nieces, who, as well as being alive at the date of his death, were also at the same point of time necessitous. I therefore take the view that no uncertainty arises on this score.
It is next alleged that a further matter of uncertainty is introduced by the extension of the class of beneficiaries to the children (simpliciter) of the necessitous nephews and nieces. Does that, it is asked, mean all children of necessitous nephews and nieces, even though they themselves be affluent, or must they, in order to qualify as members of the class of potential beneficiaries, be necessitous also? The answer is, I think, that the words used by the testator are clear and unambiguous in their ordinary meaning. There is no qualification of being necessitous applied to the children. All children of necessitous nephews and nieces qualify as members of the class amongst whom the executors must exercise their discretion of dividing the income of the residue. There is, I think, no strange anomaly necessarily involved in this in that it seems not unreasonable to suppose that the testator in all probability assumed that the children of necessitous nephews and nieces might themselves very well be in need of aid by reason of their parents’ circumstances. No doubt he reposed confidence in his executors to act in a reasonable fashion in the exercise of their discretion so that an inconsistency of attitude has not to be imputed to him.
The result of the determinations I have so far made is that the potential classes of beneficiaries is, on the true construction of the clause, a fluctuating body, varying from time to time during the period of ten years from the testator’s death, according as to whether any of the testator’s nephews and nieces became necessitous during that period. That, it is said, again introduces an element of fatal uncertainty. How can the executors, it is asked, find who are the class of beneficiaries when it is a fluctuating one?
The fact that the class in the present case may fluctuate does undoubtedly increase the difficulty of ascertaining the class, but difficulties and impracticabilities should not be allowed to stand in the way if by any possibility the trust can be executed. Are there here to be expected so much greater difficulties than were to be encountered in the case of Mitchell’s Trustees v. Fraser (1), where a class of children or children’s children in want had to be found from time to time, or than in Magee v. Magee (2), where the class of children from time to time appearing to be most in need had to be found, as to render the finding of the class quite impracticable? I do not think so. The information to be collected is not so vast as to make it virtually impossible to procure it. Since a pecuniary benefit may result from supplying it, it is reasonably probable that it will be forthcoming from any member of the class who may consider that he or she or his or her child has a just claim. While the testator has not expressly stated that the distribution of income is to be made from time to time, that is something necessarily involved as distinct from any process of continuous division, because the executors must select and that can only mean that they must from time to time select who is to benefit. It is a matter of finding the necessary data from time to time instead of at one particular time. No doubt it adds to the difficulties with which the executors are faced, but the difficulty is one of a practical nature, and by no means insuperable in this case any more than it was found to be in the case of Mitchell’s Trustees v. Fraser (1) where there arose a similar problem of a fluctuating class. Lord Salvesen thought that the duty of the trustees was to consider the position from year to year to see whether or not there was occasion for the exercise of their duties under the trust. That would seem a good working plan. There would, however, seem to be no reason why the executors should not operate the trust at any other convenient time according to the exigencies of the situation. That a gift is not necessarily to be held uncertain merely because the class of beneficiaries may fluctuate from time to time seems implicit in the decisions of Mahon v. Savage (2), Magee v. Magee (3) and Mitchell’s Trustees v. Fraser (1). Several of the other cases I have referred to satisfy me that mere practical difficulty in the ascertainment of the class of potential beneficiaries does not of itself make a gift void for uncertainty unless it be that the difficulties are really insurmountable. There is no reason to suppose that this is so in the present case where the nieces and nephews are known and their financial circumstances can be ascertained. There is, furthermore, no reason to suppose that the executors, in whom the testator has reposed his confidence, will not exercise an honest and reasonable approach to the exercise of their discretion. They have, to borrow a phrase from Mitchell’s Trustees v. Fraser (1),an intelligible and workable plan to operate.
The executors’ proper method of procedure would seem to be to find out from time to time the financial position of such nieces and nephews as were alive at the date of the testator’s death and then decide which in their respective circumstances of life fall within the category of being necessitous nieces and nephews during the ten-year period. The rest of the class, namely, their respective children, follow automatically. They have then to exercise their discretion as to which of them, and in what proportions, will share the annual income. If it is unarguable that their discretion does not extend to selecting the persons to be benefited within the class and considering the manifest intention of the testator to aid those in necessity it would be absurd to suggest that their discretion did not also extend to deciding the amount to be allotted to each of those selected to benefit.
There remain to be considered the matters arising on the questions asked in 2(a) and 2(b) of the special summons. I take them in reverse order for convenience. It would appear to me that the testator has, as to the residue of his property, indicated quite clearly the class of persons amongst whom it was to be divided. The division is to be made on a date ten years from his death and to be made amongst all his nephews and nieces “then living.” The first part of the entire clause under construction concerned the division of income only and I see no reason for qualifying the description of the class amongst whom the division of the ultimate residue is to be made by way of reference back to the class amongst whom the income of the residue was to be divided. The class amongst whom the ultimate residue should be divided is therefore such of the testator’s nephews and nieces as shall be alive on the date which is ten years from the date of the testator’s death.
The first supposition on which question 2(a) is posed does not arise. The question is secondly posed in the alternative on the basis, “or if there are no necessitous nephews or nieces” of the testator. I do not consider that the existence or non-existence of a class of necessitous nephews and nieces during the ten-year period can in any way affect the validity of the clearly expressed bequest in trust of the capital of the residue. The class may come into existence at any time during the ten-year period so that, incidentally, no question of acceleration arises, as was suggested was possible. It follows that there is no intestacy as to the capital of the residue and that the executors are entitled to divide that capital residue amongst the nephews and nieces of the testator alive at a date ten years from the date of the testator’s death. I should add that if in fact it should turn out that there are no nephews or nieces who can be regarded as being necessitous during that period a question will arise as to who is entitled to the undistributed income, but that is a hypothetical question which should be determined if and when the necessity to determine it arises.
It was also, I should add, urged on me in this case that, if not otherwise supportable in law, this gift by way of trust could be sustained as a charitable bequest. The difficulty in so construing the bequest is, on the face of it, that it has not the necessary quality of being for the benefit of the public. There is, however, to be found in In re Scarisbrick, Cockshottv. Public Trustee (1) support for the proposition that trusts for the relief of poverty, even though limited to an aggregate of individuals identified by some personal tie of relationship, may be charitable although not trusts for the benefit of the public or a section thereof. Sect. 49 of the Charities Act, 1961, would also appear to have a bearing on the matter in so far as it may be suggested that the gift in trust has in part non-charitable objects. In the view that I take of the case it is, however, unnecessary to consider this alternative argument.
The questions in the special summons will be answered in accordance with my findings.
In re McGuire’s Estate
Gyles v Glynn
High Court of Justice
20 December 1926
[1927] 61 I.L.T.R 84
Johnston J.
Johnston, J.
William Walter McGuire died on Sept. 21, 1921, leaving certain landed property in Co. Waterford, and his will, which was made on Oct. 10, 1905, and which now comes before me for construction, is certainly a most extraordinary document. In length it runs to nearly 4,000 words, and scarcely one-fourth of it is really testamentary in character. In the course of the will the testator colloquially discusses dozens of everyday topics, from the evils of what he calls sectarianism to the sea-bathing near his house at Clonea. If I am to follow the ordinary principle of construction and endeavour to give effect to every word used by the testator, the task before me is stupendous indeed. Not the least extraordinary part of the matter is the fact that sixteen years calm reflection failed to raise the slightest glimmer of doubt in the testator’s mind as to the entire wisdom of this document. On the contrary, during the years from 1905 to 1921 he supplemented it by the execution of three codicils.
The general scheme of the will may be stated thus:—Having left all his real and personal property (with certain exceptions which are not now material) to his cousins, Walter Gyles and Charlotte Stuart, for their lives in equal moieties, he then made provision that on the death of either of them the share of that one should be dealt with by the trustees in a particular way. Subject to those life interests he willed and bequeathed Clonea House, with the farm of 180 acres on which it stands and certain lands held by judicial tenants, to the Irish Branch of the St. Vincent de Paul Society “(except in the eventuality hereinafter mentioned) as a sanatorium for persons exclusively of Irish birth but wholly irrespective of creed.” This clause appears to be an absolute devise of the property to the St. Vincent de Paul Society, subject or not, as may be determined afterwards, to a particular trust. It is followed by a very sweep *84 ing prohibition of the sale, mortgaging, leasing, or exchanging of the lands in the hands of the Society.
The clause, the purport and effect of which arises on the present application is as follows:—“Then if with the consent of a majority of the Irish people, as shown by the votes of their duly elected representatives in Parliament or statutory legislative assembly whether sitting in London, Dublin or elsewhere, a compulsory Land Purchase Act become later on applicable to Ireland, whereby the tenants are intended to become possessed of the property of their landlords with or without State assistance—in my opinion a shamelessly immoral measure, and one, moreover, which like most socialistic steps must eventually defeat its own object, as it has in fact already commenced to do seeing that great blocks of Crown tenancies are already being carved out which must eventually mature into large freeholds—then and in such a case I hereby will and devise that all monies arising from such compulsory sales, even if they should involve the whole estate, shall become the absolute property of the Sisters of the Sacred Heart at Berne, Switzerland, for the sole benefit of the sick poor of that country and no other.”
It has been ascertained in the present proceedings that the Convent to which the testator alluded in that clause is not that of the Sisters of the Sacred Heart but that of the Sisters of the Holy Cross of the Order of St. Francis of Berne. In the event of the Convent renouncing the gift, there is a further gift over of this land in Co. Waterford to the Federal Government of Switzerland for the benefit of the sick poor there, “for” (as the testator says) “I have always loved that land of forests, mountains, lakes and rivers and ever liked its honest, kindly and industrious people.”
It is contended on behalf of the St. Vincent de Paul Society and of the parties contingently interested in the residue that the conditional gift over to the Convent at Berne is invalid as being ( a ) uncertain and ambiguous, ( b ) repugnant to the absolute interest devised to the St. Vincent de Paul Society, ( c ) contrary to public policy, and ( d ) an infringement of the rule against perpetuities. It is contended also that even if the condition is to be regarded as valid, the “eventuality” that it contemplates has not yet taken place. I have studied the clause in question, including the ethical, moral and political considerations that the testator introduces, with the most anxious care, and I have the greatest difficulty in discovering the precise legal state of affairs that the testator had in his mind and that he has expressed in such loose language. The phrase “compulsory land purchase” is one well known in newspaper and popular controversy; but I am not aware that it is a phrase that is known to the law. Certainly, none of the Acts of Parliament which enable land to be acquired for purposes relating to the welfare of the community from the Lands Clauses Act, 1845, to the Northern Ireland Land Act, 1925, purport to be compulsory purchase measures, although the principle of compulsion is to be found implicit in all of them side by side with that of voluntary sale. The same is true of the Irish Land Purchase Code. The phrase “redemption of superior interests” is simply a euphemism for the compulsory purchase of estates and interests other than those of the immediate landlord, and it is now a matter of history that the compelling powers of the Land Commission and the Congested Districts Board became more and more extensive with each Act that reached the Statute Book.
If, however, I am to take it that what the testator was contemplating was an amendment of the Land Purchase Code as existing on Sept. 21, 1921, when the will became operative by the passing of a measure for the expropriation of those immediate landlords of the occupying tenants of all the agricultural land in Ireland who had not already parted with their estates, whether compulsorily or voluntarily, to their tenants, then I must scrutinise the condition very closely to see if it has been fulfilled. It is, I think, a rule of law that such a condition, which will have the effect of divesting an absolute estate in one person and passing it on to another person, must be construed with the utmost strictness. That was the basis of the judgment of Byrne, J., in In re Beard’s Trusts, [1904] 1 Ch. 270, where he held that a gift over in the event of a school “becoming subject to the control of a school board” did not take place as a result of the school coming under the authority of the county council, although the county council was the actual education authority and had vested in it a great many of the duties which formerly had been carried out by the school board. In the present case the event that the testator contemplates is the passing of “a compulsory Land Purc” in an assembly “whether sitting in London, Dublin or elsewhere.” No such Act has been passed, and in my opinion the passing of the Land Act in Dublin on Aug. 9, 1923, and of the Northern Ireland Land Act in London on May 28, 1925, is not the “eventuality” that the testator contemplated. This view, which *85 has been advanced on behalf of the St. Vincent de Paul Society, is not a mere technicality ingeniously contrived for the purpose of evading the condition, but one that goes to the very root of the condition. What the testator contemplated was a legislative Act of “the Irish People” as a whole, passed by one legislative assembly, wherever it sat, an Act “applicable to Ireland” as a whole and operating upon the interests of the landlords and the tenants of a united country. That represents, in my opinion, both in letter and in spirit, the scope of the condition, and as that has not happened the estate of the St. Vincent de Paul Society has not become divested. But I am prepared to go further and hold that the conditional gift is absolutely void. I am satisfied that the terms of the will amount to an absolute devise of this property to the Society in remainder. The testator then, with a Napoleonic gesture, proceeds to place a bar upon any dealing whatever by the Society with the land whether by way of sale, mortgage, leasing, barter, exchange, or any other form of alienation, and in the event of anything of the kind being attempted there is a gift over of the property to the Sisters of the Holy Cross at Berne. They, in their turn, should the gift take effect, are to be subject to the same restrictions, and they will be expected to carry on the work of attending to the sick poor in Switzerland by means of landed property in Ireland of which they cannot dispose in any way. However, this general clause forbidding alienation is not before me in the present application, and I express no opinion as to its validity. The clause upon which I am called to adjudicate on the present occasion comes immediately after the general clause prohibiting voluntary alienation. The testator was determined to do what he could to frustrate any involuntary alienation through the action of the Legislature, or, at any rate, to penalise the owner in the event of the Legislature determining that such alienation was necessary for the public good. I agree with Mr. Geoghegan that in order to appreciate the whole scheme of perpetual suspension into which the testator proposes to place this property the two clauses must be read together. I am entitled to assume that the testator knew that no clause could be devised that would stop the operation of an Act of Parliament as to the compulsory taking of land. That was in effect decided in the case of In re Cuckfield Burial Board, 24 L. J. Ch. 585, where it was held that a public Act of Parliament which authorised the compulsory taking of lands, could not be rendered nugatory even by the provisions of an earlier private Act which had inalienably settled the lands in question upon a particular family; and in Ayr Harbour Trustees v. Oswald, 8 App. Cas. 623, it was decided by the House of Lords that an owner of property could not contract himself out of the benefit of compulsory powers that had been conferred upon him by the Legislature.
Without knowing anything about those cases, the testator devised an expedient—ingenious enough—that does not appear on a superficial view, at any rate, to conflict with either of them. He attempts to provide that upon a sale of the lands under a compulsory purchase scheme the proceeds of the sale are to become the absolute property of the Convent at Berne. I am quite satisfied that that clause is invalid and of no effect, being repugnant to the absolute estate given to the St. Vincent de Paul Society.
At the time when such a sale as the testator contemplates takes place, the Society would be the owner; from them title would be derived and to them the purchase-money would be paid. It is impossible to think that the testator could at that stage by means of any possible condition, no matter how ingeniously framed, proceed to divest the owners, not of the land that had been devised to them, “but of the proceeds of the sale of that land” that had been legitimately carried through by or rather on behalf of them. The case is not unlike that of In re Elliot ; Kelly v. Elliot, [1896] 2 Ch. 353. A testator gave a certain estate to the plaintiff absolutely, subject to the payment of the testator’s debts, and he provided that “on any sale” of the estate by the plaintiff, the latter should out of the proceeds pay the testator’s sister £1,000. It was held that that direction was repugnant and void, and that the property belonged to the plaintiff absolutely. Chitty, J., said:—“It appears to me that the testator has attempted to create a new kind of estate unknown to the law. The owner of property has as an incident of his ownership the right to sell and to receive the whole of the proceeds for his own benefit. But this testator says that if the owner sells a part only the proceeds shall belong to her, and the residue shall go to other persons. The direction is, I think, repugnant and void.”
This case is an a fortiori one because the testator says that when a sale of the lands in the hands of the owner takes place the whole of the proceeds shall go from him to another. The fact that the particular kind of sale contemplated by the vendor is a compulsory one in pursuance of a statutory *86 enactment is a further circumstance in favour of the Society’s point of view. As regards the argument that the condition is void as being contrary to public policy I need say very little. It seems to me that much can be said in favour of the view that the clause represents a tendency on the part of the testator to frustrate parliamentary action in regard to the disposition of the land of the country for the general good of the community. At the time when the will came into operation in 1921, a number of Acts containing compulsory powers were in force, and the testator appears to anticipate that there would be an extension of the principle. The clause goes far beyond a mere expression of the testator’s motive, though that is expressed emphatically enough. It is a clear statement, if it is to prevail, that the owner of the land, when it is sold under or by virtue of a compulsory land purchase scheme, shall be deprived of the proceeds because the testator disapproves of legislation of such a kind. Some light on this question is to be derived from the decisions in Baily v de Crespigny, L. R. 4 Q. B. 180, and Eastern Railway Co. and Wiffin’s Contract, [1907] 2 Ch. 366; but as I have already decided that the condition is void on the ground of repugnancy, it is unnecessary for me to express any concluded opinion upon the further question. For the same reason it is unnecessary to say anything as to the contention that the condition is invalid as coming within the rule against perpetuities.
Representation
In the Estate of Hutchinson LLoyd Vaughan Dec
[1926] IR 67
In the ESTATE of WILLIAM PEISLEY HUTCHINSON LLOYD VAUGHAN, Deceased; ELIZABETH HENRIETTA LLOYD VAUGHAN v. ROBERT SANDEMAN PEISLEY MacIVOR and Others
(1925. No. 10073.)
4,11 Nov. 1925
Meredith J. 68
MEREDITH J. :This was a construction summons to determine questions as to the validity of certain conditions in the first and second codicils to the will of Mr. W. P. H. Lloyd Vaughan. The case was very fully and ably argued by counsel, and Mr. Macrory’s arguments showed considerable research. [His Lordship read the material portions of the will and codicils, set out above.] As to the conditions in the second, I am quite satisfied that In re Wolstenholme (5) applies, and that it should be followed. No doubt an estate, which is really only a life estate, may be made determinable on alienation, where it is possible to construe the estate as only given until the happening of the condition. But that construction has nothing to support it where, as here, the life estate is followed by a general power of appointment, the effect of which is to give an absolute interest. I further hold that the case of suffering a judgment is on the same footing as a condition against bankruptcy or encumbering.
As to the first codicil, Mr. Macrory relied on three grounds to show the invalidity of the condition. The first, which was that the condition was a condition precedent, was not pressed, though the words, “I declare the bequest to him or her absolutely void,” look rather like a condition precedent. Further, I should point out that there were bequests in the will of sums of money, as to which it is difficult to see how the condition could have been intended to apply otherwise than as a condition precedent. But, on the whole, the wording of the second codicil seems in favour of a condition subsequent. The second ground relied on
by Mr. Macrory was dependent on the statement that there was no gift over expressed to take effect on the happening of the condition. Owing to the view which I take of the argument on the third ground, I have not thought it necessary to look into the authorities on this point, which are numerous. But it does seem to me that there is an essential distinction between the case of a mere general residuary bequest and a case where there is a person entitled in remainder under the specific disposition of this very property itself, and whose estate, under the limitations of this property, would be accelerated in the event of the first limitation becoming void.
Accordingly I prefer to rest my decision on the third ground. The clause in the first codicil must be read strictly, and I cannot construe the words, “I declare the bequest . . . to be absolutely void,” as effectual to revoke the power of appointment which in the case of the conditions in the second codicil was expressly revokedand defeat the estate, which has vested under a valid exercise of that power of appointment. Accordingly I must decide that in the events which have happened Mrs. Lloyd Vaughan is absolutely entitled to the property, the subject of the appointment.
In re Callaghan
; Callaghan v. Callaghan
[1937] IR 89
Gavan Duffy J. 89
GAVAN DUFFY J. :
The testator, Thomas Callaghan, made his will on the 30th day of May, 1935. He died on the 23rd day of November, 1935. The will was proved by James Callaghan on the 20th day of December, 1935. The principal provision in the will, which gives rise to questions for determination by the Court reads as follows:”I give devise and bequeath my farms of lands situate in the townlands of Bellewstown and Newtown near Duleek County Meath together with all live stock thereon and also all crops machinery and farm implements thereon and all other out-door and indoor effects and household furniture in or on the premises at the time of my death unto my nephew Andrew Callaghan at present residing in New York in the United States of America provided he arranges within a period of three months of my death to take over possession and permanently reside on said farms or on either of said farms and communicates his decision so to do to my said executor within the said period of three months and provided he actually takes up his residence on either of said farms within a period of six months from the date of my death. And in the event of my said nephew Andrew Callaghan not arranging to so reside and take over possession of said farms within the said period and not
actually taking up his residence thereon within the said period of six months then I give devise and bequeath the said farms unto James Monks of Nevitt Lusk in the County of Dublin son of James Monks senior of same place together with all stock, crops, implements and all other outdoor and indoor effects thereon and household furniture in the house thereon at the time of my death for his own use and benefit absolutely. I give and bequeath unto whichever of the said Andrew Callaghan or the said James Monks shall ultimately become legally entitled to my said farms the sum of £200 for the purpose of enabling such person to work the said farms, said sum to be paid to the person entitled thereto after the expiration of a period of six months after the date of my death.”
It seems to me a very natural thing that the testator in leaving these farms to his nephew, who was resident in the United States, should have sought to ensure that the beneficiary would not simply take the benefit of the gift and dispose of it from New York, but that he would take some steps to show evidence of his intention to enjoy the property in specie as the testator intended. Accordingly provisions are made that Andrew Callaghan shall arrange to take over possession and permanently reside and communicate his decision to the executor and that he shall actually take up residence on one or other of the farms. These are very reasonable provisions.
It is to be noted that the first condition is in two parts and that it appears to have been complied with by Andrew Callaghan both as to making arrangements and communicating his decision, though much might be said about the looseness of requiring the legatee to “arrange,”if anything turned on it; but the difficulty arises in regard to the second condition “and provided he actually takes up his residence on either of said farms within a period of six months from the date of my death.”
The cases decided on different wording in different wills are not of much help, except to show that a condition of this kind must be clear enough to be enforceable. It seems to me that the important word is the word “actually””Provided he actually takes up his residence.” The word”actually” is thus used in the first part of the clause and repeated in the divesting words regarding the taking up of residence. I think the word “actually” helps materially to distinguish this from the earlier condition which speaks of permanent residence. In my opinion the requirement as to taking up residence “actually” is quite definite and is a good condition precedent, to be tested by asking whether the beneficiary did as a matter of fact take up residence, not by asking whether he permanently resided on either farm, a very different question. Actually taking up residence seems to me to stand in striking contrast to such words as “permanently reside” or “come to live,”which have been held too indefinite, and this condition is not difficult to enforce. Andrew Callaghan has not actually taken up residence on either farm within the six months. Accordingly I am of opinion that James Monks, in the events that have happened, is entitled to the two farms and the chattels bequeathed therewith and to the legacy of £200.
I do not think that it is necessary to answer so much of the first question as deals with what I have called the first condition, but I answer in the negative the rest of the question as to whether the condition that Andrew Callaghan actually take up residence on either of the farms within six months of testator’s death is void for uncertainty.
It is unnecessary therefore to answer the second question.
As to the third question, which is”Whether the said lands and chattels and the said legacy are now vested in the said James Monks, or, if not, in whom the same are now vested?” the answer will be that James Monks is entitled, subject to the assent of the executor, the condition as to actually taking up residence within six months not having been complied with by Andrew Callaghan.
The will gives rise to a further question. The testator gives and bequeaths unto his god-daughter Julia Wall, daughter of James Wall, the sum of £50 absolutely and he gives a share of the residue “unto the said . . . Julia Wall.”It turns out that Julia Wall is not the god-daughter of the testator, but that her sister, Agnes Wall, is his god-daughter. The fourth and fifth questions ask which of the two girls is entitled to the legacy and to the share of the residue. It is to be observed that the testator was a religious man or was, when making his will, in a religious frame of mind. He begins by giving a charitable or religious legacy unto the parish priest for the time being at the time of his death of the Parish of Duleek the sum of twenty pounds for Masses. This is followed by a legacy of £5 to the Catholic Curate of the Parish for the like purpose. There are then a bequest to the Parish Priest of Duleek at the time of his death of £20 for pious purposes and a substantial legacy of £700 for repairs to the Catholic Chapel in Duleek. All of these are religious legacies. Then, after providing for his nephew, Andrew Callaghan, the testator gives three legacies to god-children: there is a legacy to his god-son Patrick Callaghan and another to his god-daughter Jeannie Reilly; then comes the legacy “unto my god-daughter Julia Wall,” followed by a number of legacies to cousins. In my opinion we have sufficient indications that the testator’s intention was to give something to his god-daughter who was daughter of James Wall, and it is less likely that he made a mistake in regard to that relation-ship than in regard to the girl’s Christian name.
I am, therefore, prepared to follow the two decisions cited, In re Blayney (1) and In re Blake’s Trusts (2), and hold that the person intended is not Julia Wall, but Agnes Wall, who is testator’s god-daughter. And I answer questions 4 and 5 accordingly; it is obvious that the person who takes Julia Wall’s pecuniary legacy also takes her share of the residue.
Re Talbot
[1932] IR 27
In the MATTER of JOHN TALBOT, a Minor
8; April 1932
27; May 1932
5. July 1932
KENNEDY C.J. :
5. July.
The determination of the question which I have to consider in this opinion, though it should have been the subject of a deliberate ruling at the initiation of the proceedings in the Minor matter, must now be made on the discharge of the Minor from wardship, and his application for the payment out to him of such of the moneys in Court as he claims to be entitled to receive absolutely for his own benefit. The question arises under the will of the late Mr. William John Talbot, formerly of Mount Talbot, in the County of Roscommon, who died on the 7th of June, 1923. By his will, which was made on the 21st of April, 1922, the testator, having appointed trustees and executors thereof, made the following disposition:
“I give, devise and bequeath my mansion house and demesne of Mount Talbot and all my other real estate situate in the Counties of Roscommon and Galway unto John Talbot Crosbie, son of Maurice Talbot Crosbie (provided he assumes the name of Talbot as his last and principal surname within six months after my decease), for his life, and after his decease to his first and other sons severally and successively in tail male on their attaining the age of twenty-one years.”
The testator then gave, devised and bequeathed all the residue and remainder of his property, both real and personal, unto his executors and trustees upon trust, firstly, to pay thereout his just debts, funeral and testamentary expenses, and the legacies thereafter bequeathed, and, secondly, to set aside such sum as would provide sufficient income to pay the annuities thereafter bequeathed, and, thirdly, as to the residue, to hold the same upon such trusts as should correspond as nearly as the rules of law and equity would permit with the uses declared by the settlement made in his said will of the mansion house and demesne of Mount Talbot. The testator then gave a number of pecuniary legacies and annuities, but did not make any other residuary devise or bequest than as aforesaid.
The will, with one codicil containing certain pecuniary bequests not here material, was duly proved in the Principal Probate Registry of Saorstát Éireann on the 7th of November, 1923, by the executors therein named.
John Talbot Crosbie named in the will, whose full name was Darnley John Coke Talbot Crosbie, was born on the 5th of December, 1910, and was, therefore, of the age of twelve and a half years at the date of the death of the testator. He was the son of Maurice Bertie Talbot Crosbie, otherwise Maurice Crosbie, and Mrs. Olga Agneta Talbot Crosbie, but his parents had been divorced in England some few years before, when custody of the children was given to the mother. The father had some time previously assumed the surname of Talbot, and was believed to be resident in the United States. On the 14th of January, 1924, John Talbot Crosbie was, by the name of John Talbot, on the petition of his mother as his next friend, taken into wardship of the Court by the then Lord Chief Justice, whereupon (amongst other things) it was ordered that the mother of the Minor be appointed guardian of his person.
Prior to presenting the petition in the Minor matter, on the 11th of December, 1923, the Minor had, so far as in him lay to do so, begun to use, and his mother in whose custody he was, but who did not change her own name, had begun to use for him, the surname of Talbot, as his last and principal surname, and the petition and order in the Minor matter are entitled:”In the Matter of John Talbot, a Minor.”
In her affidavit, filed on the 11th of December, 1923, in support of the petition, Mrs. Talbot Crosbie stated as follows:
“In accordance with the terms of the will of William John Talbot, dated the 21st of April, 1922, and hereinafter referred to, the said Minor has adopted the name of Talbot as his last and principal surname and is now known as John Talbot.”
In the same affidavit she states, referring to the divorce proceedings:
“I am informed that during the said proceedings the said Maurice Bertie Talbot Crosbie by Deed Poll assumed the name of Maurice Talbot.”
At the time of the testator’s death and of the presentation of the said petition, the Minor and his mother were residing in England, and so continued up to the present time, the Minor having been entirely educated in that country.
Throughout these proceedings and for all purposes connected therewith and in every application and order in the course thereof, the Minor has been referred to exclusively by the name of John Talbot. The trustees of the estates, of which he is tenant for life under the will of Mr. William John Talbot, have recognised him as entitled henceforth to receive the income of the estates from them, and the only question with which I am concerned is the destination of a considerable sum of money which has accumulated in Court out of surplus income of the property of Mr. William John Talbot lodged in Court in the matter after provision was made for the maintenance and education of the Minor. It becomes necessary for me before paying out this sum of money to the late Minor to be satisfied that he is absolutely entitled and that he made good his claim by complying with the requirements of the testator, to the extent to which they are or may be binding on him.
John Talbot attained his majority on the 5th of December, 1931, and on the 7th of April, 1932, he executed a Deed Poll wherein he recited that he had since the month of August, 1923, on behalf of himself and his heirs and issue lawfully begotten, absolutely renounced and abandoned the use of his former surname of Talbot Crosbie and in lieu thereof assumed and adopted the surname of Talbot, and for the purpose of evidencing such change of name he thereby declared that he should at all times and for all purposes and in all matters use and subscribe the name of Talbot as his surname in lieu of the surname of Talbot Crosbie so abandoned as aforesaid, and he called upon all persons whomsoever so to designate and describe him, his heirs and issue, by his adopted surname of Talbot only. The Deed Poll was, on the 13th of April, 1932, enrolled in the Central Office of the High Court of Justice in Saorstát Éireann .
For the purposes of the present application the late Minor also made an affidavit referring to the will, and stated that in the month of August, 1923, he had assumed and adopted the name of Talbot as his last and principal surname, and that ever since that date he had completely abandoned the name of Talbot Crosbie and had used the surname of Talbot as his last and principal surname in all documents and writings and in all his correspondence and upon all occasions and in all dealings and transactions, and had never used any other surname than that of Talbot.
An affidavit was also made by his mother who stated that the late Minor had, in or about the month of August, 1923, adopted and assumed the name of Talbot as his last and principal surname and had, ever since, in all documents and upon all occasions and in all dealings and transactions used and subscribed the name of Talbot as his surname in lieu of his former surname of Talbot Crosbie, and that he had been called and known by the surname of Talbot by all his relations and friends, and that she, as his mother and natural guardian, in the absence of his father, and having the sole control and management of him, her said son, from the said date assumed for him and caused him to use upon all occasions and for all purposes the surname of Talbot.
As far as I have been able to ascertain, there was not at any stage in this matter any discussion of, or decision upon, the legal effect of the proviso as to assumption by the late Minor of the testator’s surname. No doubt the trustees of the settled property took the opinion of eminent counsel on the question, and were advised that there had been a sufficient compliance with the terms of the will. They were satisfied and let the question rest there. It seems to me, however, that now, when I am asked to pay out to the late Minor for his own use the substantial funds in Court representing income accumulated during the minority out of the property to which the proviso applied, I am entitled, and indeed bound, in the absence of any previous judicial determination of the question, to have put before me the grounds upon which I should find him absolutely entitled to these funds having regard to the terms of the will, his minority at the testator’s death, and the facts which happened since. I have been disappointed by the response to my request for assistance on the question, or rather several questions, which the proviso suggests, though I adjourned the hearing in order that I might be referred to the authorities, particularly the more recent cases which I mentioned but which counsel rather waived aside. On the further hearing, a very short contention was stated on behalf of the late Minor, namely, that the proviso was a clear condition subsequent and that the law was contained in the well-known case of Bevan v. Mahon-Hagan (1), the only case actually opened to me. The solicitor for the trustees of the will attended and, on their behalf, assented to that contention, stating that they were satisfied by the opinion they had obtained that such was their proper course. He also stated that he had been in communication with the person who would be entitled if the devise to the Minor failed, and that she, an elderly lady distantly related to the testator, was satisfied that she had no claim, and did not desire to come in and be heard on the matter Having regard to the authorities to which I am about to refer, this was a most unsatisfactory position in which to leave the matter to me upon an application involving, necessarily, the determination of the legal question of the applicant’s title to the funds.
Generally speaking, any person may assume and use any surname he pleases provided of course the name is not assumed or used for a fraudulent purpose or so as to inflict pecuniary loss on another. No formality is prescribed by law for the change of one’s surname or the assumption of another surname. The old practice of applying for a licence by Act of Parliament or a licence under the royal sign-manual to assume a new surname, and the present practice of executing a deed poll and publishing advertisements (though any of them may be stipulated in a testamentary condition), are all equally unnecessary in law for the assumption of a new surname. They are only modes of doing the thing ceremonially and solemnly and achieving notoriety for the act: Davies v. Lowndes (1)(see per Tindal C.J. at p. 618); Earl Cowley v. Countess Cowley (2), per Lord Lindley at p. 460; Davidson’s”Conveyancing” (2nd edition, 1861), Volume III., pp. 273et seq. (Mr. Waley’s note, especially, at p. 283). Moreover, a surname may be acquired, as it is said, “by repute”: Finch’s Case (3); Doe d. Luscombe v. Yates (4), an important case which was mentioned, but not opened to me. In that case the taking and using of a surname by a Minor from the age of fifteen or sixteen years onwards, by his voluntary act only and without obtaining an Act of Parliament, was held sufficient to dispense him, on succeeding to devised property at the age of twenty-one years, from compliance with a clause in the will which required that a person taking under the limitations therein and not bearing the name of Luscombe should within three years after being let into possession procure his own name to be altered by Act of Parliament into the testator’s name of Luscombe, because it was held that he then in fact borethe name of Luscombe.
Now, that case is an authority for the proposition that an infant may, by being so named over a period of years, acquire a particular surname by repute. That result does not necessarily flow from an act of his, depending upon his volition. He may have been simply so called during that time, as for instance if his father had adopted the surname in question. The question, however, which I suggested, was whether an infant can assume a surname, that is to say, do something requiring an act of will and discretion (which may be required within such a limit of time as would be incompatible with acquiring a name by repute)? Can an infant living with his father, and under his care and governance, change his surname against his father’s will? At what age does he become competent of such independent volition? The late Minor in the present case was only twelve and a half years of age when he was given a period of six months within which to assume a new surname. Upon this question two of the recent cases in England not opened to me appear to be directly relevant. They are no doubt decisions of Courts of first instance, but I do not know that either of them has been questioned up to the present.
In re Edwards, Lloyd v. Boyes (1), was a case of a proviso in a will determining the limitations of property in favour of any person who should refuse or neglect within six months after becoming entitled in possession to assume the surname and arms of the testator. Warrington J. held that a young man, who became entitled in possession under the limitations of the will at the age of nineteen years, being an infant, was incapable of refusal or neglect within the meaning of the clause, having no power legally to exercise his will in the matter, and that the clause could not be held to point at an infant whether of tender years or maturer age. In arriving at this conclusion the learned Judge followed the decision of North J. in Partridge v.Partridge (2), where the condition (a condition subsequent) was of residence in a mansion house. North J. held that as an infant had no power to choose his own place of residence, he could not be said to refuse or neglect to comply with the condition as to residence. Warrington J. distinguished Bevan v. Mahon-Hagan (3) as a plain case of condition precedent and not applicable to a case of condition subsequent.
In my opinion there is, in the case of an infant, a very important difference between the acquiring of a surname by repute and the bearing of a surname on the one hand, and the taking or assuming of a surname on the other. The acquisition of a surname by repute or the “bearing”of it may be the result of facts and circumstances without any act or volition or exercise of discretion on his part, but he cannot take or assume a surname and substitute it for his own surname without an act involving the exercise of will and discretion of which he is not competent in law. It is, therefore, impossible for an infant to accomplish the act of taking or assuming a surname by any voluntary action on his part. In the case of Doe d. Luscombe v.Yates (4), the youth, on attaining the age of twenty-one years, already bore the name of Luscombe de facto, having acquired it as a surname by repute by having been in fact so called and known during the preceding five or six years. This distinction and the importance of observing the precise requirement of any particular clause under consideration is apparent when we consider the distinction between conditions precedent and conditions subsequent, especially in the case of infants.
The general rule is that a devise of land (I am dealing here with a devise of land) upon a condition which is void or incapable of performance, where the condition is precedent, is a void devise, but if the condition be subsequent, the devise is absolute.
Now, an infant takes property devised to him cum onereand he is bound by all the conditions attached to the property whether precedent or subsequent and which would bind an adult, except any condition subsequent which is inapplicable to an infant or cannot be performed by an infant: Bacon’s “Abridgment” (7th edition, 1832), Volume IV., title “Infancy and Age,” p. 350; Co. Litt. 246 (b), 380 (b); Jarman on Wills (6th edition, 1910), Volume II., p. 1469; Cary v. Bertie (1); Halsbury, “Laws of England,” title “Infants,” paragraph 203. Typical cases of condition subsequent impossible of performance are In re Croxon, Croxon v. Ferrers (2) (name and arms required to belawfully assumed within twelve months); Partridge v. Partridge (3), North J. (residence by an infant in a mansion house); In re Edwards, Lloyd v. Boyes (4), Warrington J. (infant required to assume surname and arms). For a strong case of condition precedent, imposing a name and arms clause on an infant, I need only refer to Bevan v. Mahon-Hagan (5),which was the only case opened to me and is not really very helpful in deciding the present case. It was there held by the Vice-Chancellor, and afterwards affirmed by the Court of Appeal, that, upon the construction of specific provisions in a will, a condition requiring the assumption of the testator’s name and arms by a beneficiary beforeattaining the age of twenty-one years with a gift over on refusal or neglect to do so, was a condition precedent in the particular case and was not complied with by assuming the name only while under the age of twenty-one years and applying for a grant of arms after attaining that age and that the gift over took effect. Its value as a citation in the present case was that the Court appeared to recognise the acquisition by a Minor (he was about 20 years of age) of a surname by repute by user as effective, at least for the purpose of complying with such a clause. The decision of the Court, however, was that the provision as to assuming the testator’s arms was a condition precedent and the Minor who did not perform, perhaps could not perform, such condition lost the property.
I may here refer to In re Greenwood, Goodheart v.Woodhead (1), a decision of the English Court of Appeal, reversing Joyce J. (2), where it was held that if a condition attached to a devise is capable of being construed either as a condition precedent or a condition subsequent, the Court will prefer the latter construction. The decision actually turned upon prevention of performance by the act of God. The report of the case before Joyce J. may be referred to usefully at pages 202 and 206.
I have no doubt that the clause in Mr. Talbot’s will, if it be a condition at all, is a condition subsequent, because the devisee took the property immediately upon the testator’s death and was given a period of six months after that time within which to carry out the condition. I am of opinion that, if it be a condition subsequent, it is a condition incapable of performance by an infant, and therefore a bad condition subsequent, the consequence of which would be that the infant would be entitled to the property free from the condition.
I should perhaps add that the parents of the Minor and those responsible for him at the time of the testator’s death did, as shown by the affidavits, everything possible at the time and in the circumstances to fix him with the testator’s surname as his last and principal surname, and I am satisfied that he has now acquired the surname of Talbot as his surname by repute.
I have so far approached the case from the point of view from which it was pressented. It seems to me, however, that there was another, and in my opinion, more important, aspect of the case which was not put forward. This aspect of it appears on a consideration of the construction of the will when closely examined. As in all will cases, so in this, it is a great mistake to let the eye wander from the document itself.
Now, two points on this will are so striking that one may attribute it to their very obviousness that attention was not directed to them in argument. The first is that there is no provision for defeasance or failure of the estate devised to John Talbot Crosbie for life in the event of his failure, whether by reason of refusal or neglect, to assume the surname of Talbot as his last and principal surname within six months after the testator’s death. The second is that no attempt is made to require any other person succeeding to the estate to assume the surname of Talbot. It is also remarkable that there is no gift over to any person on failure of any of the estates under the settlement made by the will. The will has no ultimate residuary gift which would capture property undisposed of in the event of failure of the settlements made of the mansion house and demesne or of the residuary estate. Have these circumstances any bearing on the construction and effect of the name clause? Let me refer to some reported cases which appear to be directly in point.
In Gulliver v. Ashby (1), there was a devise limiting successive estates tail with a proviso to the effect that the devise was made expressly on the condition that the person to whom the estates would descend, should change his surname and take the surname of Wykes only and not otherwise, but there was no gift over in the event of failure to comply with the condition. The Court held that the proviso was not a good condition subsequent because it would be nugatory and that it was not a conditional limitation.
In re Catt’s Trusts (2) was a case in which it was held by Page-Wood V.-C. that, inasmuch as the defeasance provision did not fit the terms of the condition subsequent of the name and arms clause and was ineffectual, the gift took effect as an absolute gift.
In re Evans’ Contract (3) was a case raised on Vendor and Purchaser Summons, on a sale by a person claiming to sell as tenant for life under a will which contained a name and arms clause introduced by the words “provided always” and declaring that every tenant for life or tenant in tail in possession should within twelve months after becoming entitled in possession assume the testator’s name and arms. There was no defeasance provision or gift over on failure to perform the condition. Neither the vendor nor her immediate predecessors in title under the limitations in the will had performed the condition. Peterson J. held that the clause might be the expression of a desire but that it was not a conditional limitation and that the vendor could make a good title.
The position created by not adding to a name and arms clause a defeasance provision or gift over on failure to perform it, was very fully considered in Ireland by the late Master of the Rolls in a judgment affirmed on appeal, to which I will now refer.
In Vandeleur v. Sloane (4), one, Matthew Nesbitt, gave his real estate to his only son for life and then to the heirs male of the son, and in case of failure of his male issue then to the testator’s daughter, Elizabeth, and her issue male, she and they and her husband taking the name and bearing the arms of Nesbitt, and in case she should die without issue male, the property to be divided between the testator’s other children, altered by a codicil to a devise to certain other named persons. The male issue of the son Francis Nesbitt failed, whereupon the estate in tail male limited to Elizabeth Nesbitt took effect. She had married one, Beresford, and had male issue. The condition as to name and arms was not performed. O’Connor M.R., held that the clause as to taking the name and bearing the arms of Nesbitt did not impose a condition precedent but only a condition subsequent to the vesting in possession of the estate devised by the will and that, inasmuch as the remainder was not limited to take effect upon a defeasance of the particular estate by failure to perform the condition, but to take effect upon the determination of the particular estate without reference to the condition, therefore the condition imposed by the name and arms clause was void. The judgment of the Master of the Rolls was affirmed by the Court of Appeal, which rejected an argument that the name and arms clause was part of the limitation of the estate creating a special estate tail, and held that the clause imported at most a condition subsequent.
Now, in the will under consideration, we have a proviso that the first devisee to whom a life estate only is given, shall, within six months after he becomes entitled to the property in possession, assume the testator’s surname, that is to say, a proviso which is in terms a condition subsequent. But there is no provision defeating the life estate, or accelerating the remainders, or substituting another donee during the life of the first beneficiary, in case of refusal or neglect to comply with the proviso. The next limitation in remainder takes effect in possession only on the determination of the life of the first devisee. The consequence is that the proviso is rendered nugatory as a condition subsequent, which it otherwise appears to be in form, and that it has not been framed or supplemented with the necessary sanctions, so as to make compliance with the condition a matter of legal obligation on the devisee of the estate. The clause is there and we must construe it and give effect so far as is possible to the intentions of the testator expressed in his will. In my opinion, upon the construction of the will, the clause is, notwithstanding the use of the word “provided,” not a clause imposing a condition either precedent or subsequent, but a mere request or expression of a desire without any coercive legal effect. In my opinion, therefore, the application for payment out of the funds in Court may be granted without regard to the proviso requiring assumption of the testator’s name.
In the matter of John J. Fitzgibbon, deceased;
[1993] IR 520
Maureen Mackessy Plaintiff v. Mark Fitzgibbon, Cora Mullane and William Fitzgibbon Defendants
[1991 No. 445 Sp.]
High Court 31st July 1992
Carroll J.
30th July 1992
The testator John J. Fitzgibbon by his will dated the 19th February, 1990, appointed the plaintiff as his executrix and made the following devise and bequest:
“I leave devise and bequeath my farm of land at Clouncourivane together with dwelling house and out-office, cattle and stock, goods and chattels therein and thereon to my grand-nephew Mark Fitzgibbon son of my nephew Joe Fitzgibbon of Carlow provided he lives and works on the land but if he does not then I leave my land together with dwelling house and out-office and all goods and chattels, cattle and stock to my niece Mrs. Cora Mullane absolutely.”
He then made a number of pecuniary legacies. There was no residuary clause. He died on the 31st March, 1990, and probate was granted to the plaintiff on the 10th December, 1990. She has brought a construction summons to construe the will. The beneficiary Mark Fitzgibbon was a minor at the date of the testator’s death, having been born on the 29th August, 1973. He is now of full age. The testator left a net estate of about £196,000.
In construing this will there are certain principles of law to be applied. Firstly there is a presumption in favour of early vesting; if there is a doubt about whether a condition is precedent or subsequent, the court prima facie treats it as subsequent. Secondly, where a vested estate is to be defeated by a condition on a contingency that is to happen subsequently, the condition must be such that the court can see from the beginning precisely and distinctly upon the happening of what event it was that the preceding vested estate was to determinesee Sifton v. Sifton [1938] A.C. 656.
Here there are two elements to the condition “provided he lives and works on the land” and there are two questions to be answered:
1. Is the condition a condition precedent or subsequent; and
2. Is the condition void for uncertainty?
I am satisfied the condition is a condition subsequent. It provides for two requirements which if they are not fulfilled would lead to a forfeiture. Accordingly the condition is a condition subsequent.
As to whether the composite condition, “living and working”, is void for uncertainty, an examination of some decided cases is of help.
In In re Hennessy deceased (1963) 98 I.L.T.R. 39 there was a devise of land to a son:
“if he wishes to farm it and carry on same as he thinks best, if not to my daughter Yvonne. If either my son or my daughter do not survive or wish to carry on the farm I wish it to go to my brother J.H. for one of his sons.”
The condition as to farming was held by Budd J. to be a condition subsequent void for uncertainty. He said at p. 45 that he found it impossible to say with any degree of certainty what was the meaning of the words “to farm it and carry on same as he thinks best”.
“Is it meant that the beneficiary must farm himself as it were with his own hands personally or is it sufficient if he or she farms through an agent or indeed lets the lands in grazing or conacre. It is sufficient in the circumstances to say it is not clear precisely what is meant and it is therefore not possible to say upon the happening of what event the estate given would determine. In my view therefore the condition as to farming is void for uncertainty.”
In Sifton v. Sifton [1938] A.C. 656 a provision in a will that payments be made “only so long as she shall continue to reside in Canada” was held to be void for uncertainty. In a decision of the House of Lords, Lord Romer said at page 675:
“Their Lordships’ attention was called during the arguments to numerous authorities in which the court has been called upon to consider the meaning of the words “reside” and “residence”, and the like. But these authorities give their Lordships no assistance in construing the present will. The meaning of such words obviously depends upon the context in which the words are used. A condition, for instance, attached to the devise of a house that the devisee should reside in the house for at least six weeks in a year can present no difficulty. In some contexts the word “reside” may clearly denote what is sometimes called “being in residence” at a particular house. In other contexts it may mean merely maintaining a house in a fit state for residence. It is plain, however, that in the present case the word “reside” means something different from either being in residence or merely maintaining a residence. No one can suppose that the testator intended either that his daughter should never leave Canada, or that so long as she maintained a residence in Canada she might spend the whole of her time abroad. He must have intended that, though Canada was to be her home in general, yet she was to be at liberty to leave Canada for some purposes and for some periods of time. Unfortunately, he omitted to define either the purposes or the periods. The result is that the majority of the Court of Appeal have found themselves unable to give any more precise direction than that the appellant may leave Canada for a limited period and for a purely temporary purpose, without being able to define either the word “limited” or the word “temporary”.It necessarily followed that they, in common with Middleton J.A., were of opinion that the questions propounded in the trustees’ notice of motion do not at present admit of categorical answers. Their Lordships are of the same opinion. But if the appellant’s interest under the will is to be forfeited upon her “ceasing to reside in Canada,” she has a right to have those questions categorically answered; and inasmuch as they cannot be so answered, the words, if constituting a condition subsequent, are void for uncertainty.”
In Moffatt v. McCleary [1923] 1 I.R. 16 a bequest “to my brother provided he or any of his sons come to live at Magherahan within one year of my death” was held to be void for uncertainty. Lord Justice Moore said at page 20:
“The provision about living at Magherahan being indefinite as to whether living for an unascertained period, or for the whole existence of Alexander, and whether for actual or merely constructive residence, is too vague to be enforced and is void for uncertainty.”
Motherway v. Coghlan (1956) 98 I.L.T.R. 134 concerned a condition in a will, “provided my said nephew shall marry (if he be not married at my death) and come to reside there within one year from the date of my death”. The residence requirement was held to be void for uncertainty.
While a will cannot be construed by looking at another will and each will must be construed as a whole in its own context, these decided cases are helpful. I find that the condition “provided he lives and works on the land” is void for uncertainty on the same line of reasoning as in the cases cited. A beneficiary is entitled to know on what conditions his vested estate is liable to be divested. In this case the testator has been too vague and accordingly the condition is void for uncertainty both as to living and working on the lands. Since the devise and bequest is subject to a condition subsequent which is void for uncertainty it follows that the first defendant is entitled absolutely. The questions in the construction summons and the answers are as follows:
1. Is the bequest by the testator to the first defendant of the testator’s farm at Clouncourivane together with the dwelling house and out-office, cattle and stock, goods and chattels therein and thereon void for uncertainty?
Answer: No.
2. Is the condition whereby the first defendant is required to live and work on the said land contained in the said bequest void for uncertainty?
Answer: Yes.
Here I find it necessary for the sake of clarity to add in an additional question.
2. (a) If the answer to question 2 is in the affirmative, is the first defendant entitled absolutely to the said bequest?
Answer: Yes.
3. Is the effect of the said bequest that the said lands shall remain vested in the first defendant for only so long as he shall live and work on them?
Answer: No.
Questions 4, 5 and 6 do not arise.
7. (a) Does the expression “goods and chattels” as used by the testator in the said bequest include all the personal estate of the testator?
Answer: No.
(b) Alternatively the plaintiff seeks the construction by the Honourable Court of the said expression.
Answer: It includes goods and chattels in and on the farm of land. A construction of the same words in the gift over to the second defendant does not arise.
8. Given that there is no residuary clause in the said will of the said John J. Fitzgibbon ought the undisposed residue be distributed in accordance with the provisions of the Succession Act, 1965?
Answer: Yes.
9. Is the undisposed residue of the estate of the deceased John J. Fitzgibbon covered by the expression “goods and chattels”mentioned in paragraph 7 (a) herein?
Answer: Not insofar as it concerned the bequest to the first defendant.
Solicitor for the plaintiff: Patrick G. McMahon.
Cases Beneficiaries
In the Matter of John Stamp, Deceased
Patrick Stamp v Noel Redmond William Stamp and John Stamp
1991 No. 676 Sp
High Court
30 July 1992
[1993] I.L.R.M. 383
(Lardner J)
LARDNER J
delivered his judgment on 30 July 1992 saying: By his last will and testament dated 22 March 1954 John Stamp, having appointed his sons Philip, William and Patrick to be his executors and trustees, directed that his debts be paid and that his funeral and testamentary expenses be borne equally by his three sons, Philip, William and Patrick. He provided that his wife was to have a right of residence in his house for her life and to be supported, clothed and maintained therein in the manner to which she was accustomed. He then directed that his sons Philip, William and Patrick were to pay a contribution in equal shares for the support, clothing and maintenance of his son Thomas.
There follows a devise and bequest which substantially completes the will. It devises and bequeaths all the testator’s property of whatever kind real and personal to the executors and trustees upon trust for his son Patrick Stamp ‘provided always that if he shall die without leaving issue then upon trust for my grandson John Stamp’, the son of Philip Stamp.
The testator died on 14 May 1954 aged 84 years. His will was duly proved. Patrick Stamp, the plaintiff, who was unmarried at the dates of the will and of his father’s death, married two years afterwards. There have been no children of the marriage of Patrick and Kathleen Stamp but in 1965 they adopted a daughter, Mary Stamp, and in 1967 they adopted a second daughter, Elaine Stamp.
The issue raised in the special summons is whether the words ‘die without leaving issue’ in the devise and bequest in the trust for Patrick Stamp means dying without children related by blood to Patrick Stamp, or descendants of Patrick Stamp, or whether it has a wider meaning which comprehends Patrick Stamp’s two adopted daughters.
Patrick Stamp brings the special summons on his own behalf and on behalf of his adopted daughters and all persons who will take if the clause is given a wider meaning. The defendant John Stamp is the grandson mentioned in the *385 clause to which I have already referred. It is agreed by all the parties that, although the event to which this disputed clause refers is still contingent, I should determine the issue raised, and in this case I think it is appropriate to do so.
For the plaintiff it was submitted that the Adoption Act 1952, which became law on 13 December 1952 and made the first statutory provision for adoption in Irish law, effectually changed the scope and meaning of ‘family’ so as to include adopted as well as legitimate children; that in the reference to it of the Adoption (No. 2) Bill 1987 in [1989] ILRM 266, the Supreme Court recognised that the effect of an adoption order is that a child is taken out of the family it is born into and is incorporated into the adopting family, and that the policy of the law add the Constitution is to regard adopted children as equivalent to natural children and to confer the same status on them.
In the present case the testator made his will and died several years before Patrick Stamp married and before he adopted his two daughters. The will was made about 15 months after the enactment of the Adoption Act 1952. It was urged that the will disclosed an intention to keep the residue in the testator’s family; that if there was no evidence that the testator had adverted to or considered the possibility of Patrick Stamp adopting a child or children, the court should, in the absence of words showing an intention to exclude adopted children, lean in favour of a construction which favours the inclusion of adopted children and that this would be consistent with the policy of the Adoption Acts. It was further submitted that the use of the word ‘issue’ did not manifest an intention to exclude adopted children and that the court, in the absence of such words showing an intention to exclude should lean in favour of the construction of the word ‘issue’ as including adopted children. It was said that such a construction would not infringe the freedom of testamentary disposition which the testator in this case was entitled to exercise.
Before considering these submissions it is relevant to note that s. 26(2) of the Adoption Act 1952 is in these terms:
In any disposition of real or personal property made, whether by instrument inter vivos or by will (including codicil), after the date of an adoption order —any reference (whether express or implied) to the child or children of the adopter shall, unless the contrary intention appears, be construed as, or as including, a reference to the adopted person;
(b) any reference (whether express or implied) to the child or children of the adopted person’s natural parents or either of them shall, unless the contrary intention appears, be construed as not being, or as not including, a reference to the adopted persons.
Subs. (4), which is not directly relevant, provides:
Notwithstanding any rule of law, a disposition made by will or codicil executed *386 before the date of an adoption order shall not be treated for the purposes of this section as made after that date by reason only that the will or codicil is confirmed by a codicil executed after that date.
S. 26 is clearly concerned with the property rights of an adopted person when a testamentary disposition is made after the making of an adoption order. In this case the will preceded the two adoption orders by several years.
The plaintiff Patrick Stamp had not married and had no children, natural or adopted, when the will was made. The primary duty of the court in the construction of a will is to consider the words used and to ascertain from them the testator’s intention. The question is, what is the meaning of the words used? If the language used in the will can be read in its ordinary natural sense so as to make sense with respect to the surrounding circumstances, no rule of construction is applicable to ascertain the testator’s intention. Consideration of the present will shows an intention to make the provisions specified for the testator’s wife and then to leave substantially the residue upon trust for Patrick Stamp and it is in these terms:
I leave devise and bequeath all my property of whatever kind and wherever situate real and personal to my said executors and trustees upon trust for my son Patrick Stamp provided always that if he shall die without leaving issue then upon trust for my grandson John Stamp ….
There is here a clearly expressed intention to benefit the testator’s son Patrick Stamp, that in the event of his dying without leaving issue the property should be held in trust for John, the grandson of the testator. What meaning was intended by the testator when he used the words ‘die without leaving issue’ in relation to Patrick Stamp? I have already referred to the ingenious submission made by Mr Clarke SC on behalf of Patrick Stamp and his two adopted daughters, but I have to say that I am unable to accept this argument. In my judgment the word ‘issue’ is not so esoteric or so much a word used in some specialist field as to have no ordinary meaning in common usage. On the contrary, its ordinary meaning is issue of a marriage or descendants and it would be so understood by persons of ordinary education. Furthermore, in 1954 when the will was made it had been well settled for many years that a bequest to ‘issue’prima facie connoted descendants of every degree when not restrained by the context (see: Berry v Fisher [1903] 1 IR 484). This was also recognised in the Supreme Court judgment by Walsh J in O’B. v S. [1984] IR 316, 330.
This will appears from the attestation clause to have been made in a solicitor’s office which, in my view, makes it likely that ‘issue’ was used in its well settled sense. From a consideration of all its terms and of the context, in my judgment that was the sense in which the testator in this case used the words and his intention is to be found expressed in those words. I do not find that the terms of *387 s. 26 of the Adoption Act 1952, to which I have already referred, require me to reach a different conclusion. Counsel have referred me to the Status of Children Act 1987 and have agreed that it does not affect this case.
I think it is perfectly clear, even now, that adopted children are not regarded as children of a marriage and therefore the answer to question (a)(i) is that the words in the devise and bequest referred to mean children of the marriage of Patrick Stamp. Questions (ii), (iii) and (iv) do not therefore arise. The parties are entitled to their costs out of the estate.
In re Gargan, Deceased
[1962] IR 264
Budd J. 264
In this matter I have to decide questions arising on the will of Alicia Gargan, who made her will on the 18th June, 1958, and who died on the 11th May, 1959. She was survived by her husband, who died on the 19th February, 1960.
Amongst the legacies the testatrix gave was that in para. VI (3)(iv) of her will in the following words:””VI (3) I direct my trustees after the date of the death of my husband to pay the following pecuniary legacies . . . (iv) £500 to each of the children of Patrick T. Merlehan (son of the above-named Mrs. Josie Merlehan) who shall survive both my husband and myself.” Now, a question arises in relation to Patrick Robert Merlehan, a son of the Patrick T. Merlehan mentioned by the testatrix, who was born on the 16th May, 1960, so that he survived the husband, in the sense that he was en ventre sa mère at the time of the husband’s death and therefore no question arises relating to his surviving Captain Gargan, the husband; but the question does arise as to whether he must have been alive at the date of the death of the testatrix also in order to benefit under the clause.
I must take the words of the will as I find them and give them their ordinary meaning unless there is a clear indication to the contrary effect in the will. It is a fact that this child was not alive during the life of the testatrix. The clause reads: “. . . who shall survive both my husband and myself.”The ordinary dictionary meaning of the word, “survive”” and the ordinary meaning adopted in the cases”is “living at and after the event.” When one speaks of a person surviving another one means that that person lives on after the death of the other and this pre-supposes that the former was alive with the latter. I am supported in this view by the words of Lord Russell of Killowen in Elliot v. Joicey (Lord) (1):””There is not, so it happens, any authority precisely covering the event postulated by Mrs. Elliot”namely, the death of a parent ‘leaving any issue him or her surviving’. The word ‘surviving,’ however, which, in my view, according to its ordinary meaning requires that the person who is to survive shall be living both at and after a particular point of time, ought, as it seems to me, to be governed by the same considerations as those which have been applied to the word ‘living,’ where the event postulated has been that there should be a child living at the particular point of time, e.g., at its father’s death.” He takes, if I may say so with the greatest respect, the same view as I do on the meaning of”survive” or “surviving.”
So, on the grammatical and ordinary meaning of the word, the beneficiary must be alive during both the life of the testatrix and that of her husband. Otherwise he could not survive both. He must be living with both to survive both and so qualify for the legacy. It is true, as Mr. Matheson has pointed out, that the trustees are directed to pay these legacies after the death of the husband and that a life interest is interposed, but I cannot regard that as sufficient of itself to change my view as to the ordinary meaning of the words used.
So far I have taken the case as it stands; but the difficulty of the case is that I am confronted with a decision of a very distinguished English judge, Jenkins J., as he then was, in the case of In re Castle, Deceased (1). The facts of that case are set out in the headnote as follows:””A testator, who died in October, 1891, bequeathed certain shares in his residuary estate to his trustees on the trusts contained in his will for his nephew and directed that if that nephew ‘shall pre-decease me or shall be dead upon the happening of the event aforesaid [the “event aforesaid” being the date (November 22, 1947) of the death of the survivor of two daughters of the testator] leaving issue of his own surviving me and the happening of the aforesaid event then such issue shall take and if more than one equally between them as tenants in common the share which the [nephew] would have taken had he been then living.'” It appears from the statement of facts in the case that the nephew died on 28th December, 1937. It was held that the gift operated in favour of all issue of the nephew who were living on the 22nd November, 1947, including those not born until after the death of the testator.
Mr. Matheson naturally relies on that case and points out that in the report of the case in (1949) 118 L.J.Ch. 610”and also in Mr. Justice Jenkins’ judgment, at p. 49 of the official report”that there was a prior trust in favour of the daughters. On page 48 Jenkins J. says:””But it is to be observed that here the requirement is that issue should survive not a single but a double event, i.e., both the death of the testator and the failure of the prior trust. It seems to me that this makes a material difference to the meaning of the word ‘survive.’ I think that, while fully accepting the meaning of living at the happening of the specific event, when the requirement is that two events should be survived, it can properly be satisfied by living at the happening of the last of the two events specified; when, therefore, the requirement is to survive both the death of the testator and that of another named person, that requirement is met when a person is living at the date of the last of the events which has happened.” Then, at the top of p. 49, he applies that principle to the facts of the case which he was considering. That seems to me to be a statement of principle applicable in such cases, but unfortunately the reasons for stating this as a general proposition are not given and for my part I am not able to see how the result stated is arrived at.
Of course, the case is not binding on me in any event, and, since I am unable to find good reasons for accepting the proposition as stated, I do not think I should follow it.
It seems to me that in the present case there is nothing to make me suppose that the testatrix intended that “survive”should have any other than its ordinary meaning, and hence that children who survived the husband only, and not both the testatrix and her husband, should take. The use of the word,”both,” in relation to the conditions as to survival, seems to me to mean that any child, in order to benefit, must have survived “both,” and, therefore, been alive in the lifetime of both the testatrix and her husband, and I will answer the question accordingly.
Re Colahan. Molloy v. Hara.
[1967] IR 30
Teevan J.
By his will of the 12th October, 1964, John Colahan after certain bequests disposed of the residue of his estate in the following terms:”The rest residue and remainder of my estate of whatever nature or kind I may die possessed of or entitled I devise and bequeath to my first and second cousins living in the Republic of Ireland at the date of my death in equal shares.”
When he died on the 8th July, 1965, the testator was survived by several of his first cousins, including the defendant, Joseph Hara, who has been nominated to represent all the testator’s first cousins in this matter. The testator was also survived by several first cousins once removed, now represented by the defendant Brendan Hara; by several first cousins twice removed, represented by the defendant Thomas Shrewbridge; and by second cousins who are represented by the defendant Peter Hara. No nearer relation survived him. The question arising on the construction of the foregoing residuary bequest is whether the testator’s first cousins, once and twice removed, share in the gift.
The contending submissions may be summarised as follows. The testator names first cousins and second cousins only. These are well-known relationships and the bequest should be confined to first cousins and second cousins strictly so called. Mr. O’Connor, for the first and second cousins, urges this on the Court as the true construction of the bequest; to include the first cousins once and twice removed would be to extend the testamentary language, and he relies on Re Parker; Bentham, v. Wilson , (1) where, as he contends, the court declined to extend the testamentary description of first and second cousins to include first cousins once removed and first cousins twice removed. He also relied on Stoddart v.Nelson (2) where the court confined to first cousins a bequest to “cousins” and excluded the claims of first cousins once removed and second cousins of the testator. The alternative proposition is that the words of the will indicate the intention to benefit all the testator’s cousins within the degrees of first and second cousins inclusively. Mr. Kearns, for the first cousins once removed, and Mr. Butler, for the first cousins twice removed, contend for this construction and in my opinion it should prevail.
Out of deference to the very able arguments of counsel on all sides, I intended to embark on a closer examination of the cases cited than hereafter appears. When I came to do so, however, their curious history deterred me from the attempt. Taking them in reverse order of presentation in Court, Mr. Kearns and Mr. Butler relied on Mayott v. Mayott (1); Silcox v. Bell (2) and Charge v. Goodyer (3). Mr. O’Connor relied strongly on Stoddart v. Nelson (4) and Re Parker; Bentham v. Wilson (5). Mr. Finlay, for the executor, referred the Court to In, re Tully; Toolan and Others v. Costello (6)and Re Parker (5) for what assistance might be derived therefrom, while calling attention to the features of those cases which distinguish them from the present. Apart from the unsatisfactory nature of the report, Mayott v. Mayott (1)seems open to the criticism made by the Master of the Rolls, at first instance, in Re Parker (5), and it may be said that Mr. Kearns and Mr. Butler relied more on Silcox v. Bell (2) and Charge v. Goodyer (3). I do not mean to say that they abandoned Mayott v. Mayott (1) and indeed Mr. Butler, relying on the last sentence of the judgment of James L.J. in the Court of Appeal in Re Parker (5), submitted that its authority still prevailed. That sentence states:”We do not intend to shake the old cases, but we do not consider them applicable to the present case.” One of the old cases cited in Re Parker (5)was Mayott v. Mayott (1).
The curious thing is that while the judgments in Mayott v.Mayott (1), Silcox v. Bell (2) and Charge v. Goodyer (3)have never been overruled or dissented from, save by Jessel M. R. in Re Parker (5), they have not received enthusiastic assent in later cases and in some instances they have been explained away, or the extent of their authority doubted, as it seems to have been by Brett and Cotton L.JJ. in Re Parker (5). Notwithstanding his concluding phrase, James L.J. agrees with the observations of Jessel M.R. on Mayott v.Mayott (1). The tendency has been to confine them closely to the terms of the particular instruments and circumstances involved or, more precisely, to the particular issues raised before the courts in which they were pronounced. Cotton L.J. goes so far as saying that they do not “lay down any general rule.” Although Mayott v. Mayott (1) and Charge v. Goodyer (3),which itself carries a reference to Silcox v. Bell (2), were referred to in Tully’s Case (6), Gavan Duffy J. passes them over in silence. Therefore, resort to these cases has to be cautious.
What can be said is that the cases on gifts to “cousins,” or to “first cousins” or to “second cousins” provide no specific guide. The basic principle is to construe the particular gift in accordance with the testamentary intention as disclosed by the particular will in the circumstantial context in which is was made, in so far as the same is revealed in a way the court may take cognisance of. In cases of this kind there is either a gift to a class or gifts to a series of classes, and the question is to determine who are included in the class, or classes. The decision in Re Parker (1) ultimately turned on the finding that the bequest of one-third of the testator’s property to his first cousins and two-thirds to his second cousins constituted two separate gifts to two distinct classes.
In the present case there is a single gift to a single class, composed of the testator’s first and second cousins. With all respect to what has been said elsewhere to the contrary, I believe that only the most punctilious of persons will refer to a relation as his first cousin once removed, save perhaps when the niceties of genealogy, or law, are in question; the ordinary person will colloquially refer to such relationship either as “cousin” or “second cousin.”
The testator, as is revealed in the plaintiff’s affidavit, was a bachelor aged 85 years when he died, and he had made his will some eight months before his death. At that time his nearest surviving relation was a brother to whom he bequeathed a legacy of £500. That brother predeceased the testator and there is some evidence in the will that the testator envisaged that this might happen. The testator was not survived by any parent, brother, sister, uncle, aunt, nephew or niece. He had no nearer relations than his cousins. Thus, apart from one brother, at the time he made his will, the testator’s nearest relatives were cousins. From the general words he used and in the circumstances as we know them why should he be taken as intending to benefit second cousins strictly so called with first cousins, to the exclusion of cousins standing between, so to speak, although legally in the same degree of relationship? Concentration on the legal degree of relationship may tend to deflect us in our pursuit of the testamentary intention and lead, by a mistaken logic, to the inclusion in a gift to first and second cousins of, say, a grandniece as in Mayott v. Mayott (2). To me it seems abundantly clear that the testator wished and intended to give his property, after payment of the few pecuniary legacies mentioned in the will, to all his cousins as far removed as second cousins. It also appears clear to me that he did not intend to prefer some to the exclusion of others.
I do not agree with Mr. O’Connor’s contention that to include the first cousins once and twice removed would extend the class named in the will. On the contrary, to exclude them would be to restrict the class without evidence of any intention on the part of the testator so to do. In this respect the case differs from Tully’s Case (1), where there was intrinsic evidence of discrimination within the class. The class, in my opinion, is constituted of cousins but not beyond second cousins. Of course, Mr. O’Connor’s argument really proceeded on the basis of two distinct classes, one composed of first cousins and the other of second cousins, but the phraseology of the will precludes any such finding. Accordingly, I hold that the first cousins of the testator, once and twice removed, are included in the description of his residuary legatees; and I shall direct the enquiry sought in Clause 7 (2) (c) of the summons, if Mr. Finlay considers it to be necessary.
Orford, Deceased; Orford v Orford
Chancery Division.
19 February 1903
[1903] 37 I.L.T.R 119
Chatterton V.-Ch.
Feb. 19, 1903
Originating summons to determine a question arising on the construction of the will and codicil of William Orford. The testator made his will, dated 2nd Jan., 1901, and thereby bequeathed the sum of £200 to his three sisters, Kate, Theresa, and Anne. He then, having disposed of other personal estate, bequeathed his farm with the stock thereon in trust for his mother for life, “and after her death in trust for my said three sisters, or such of them as shall survive me, in equal shares, as tenants in common.” He then made the National Hospital for Consumptives, Newcastle, Co. Wicklow, his residuary legatees. By a codicil, dated June 26, 1901, the testator revoked “the bequest in remainder after the death of my mother given by my said will to my said sister, Theresa, of a share in my farm”; and in all other respects he confirmed his will. The testator died on the 5th Sept., 1901, leaving his mother and all his three sisters surviving. His mother took out administration with the will and codicil annexed. The present summons was to determine whether the share of Theresa passed to the Consumptive Hospital, or whether the two other sisters took the whole farm as tenants in common.
Donaldson, for the plaintiff, the administratrix.
Oulton, for the Consumptive Hospital.—The real question is, was the gift a gift to a class, in which case the remaining members of the class would take the property, or was it a gift to personœ designatœ ? In the latter case the revocation of the share of one would operate to pass the property *119 to the residuary legatee. In the present case the persons to take were all mentioned by name and number. It was therefore a gift to each of them of a share, and the revoked share of one would not pass to the others.
Kehoe, for Kate and Anne Orford.—The whole will must be looked at to see whether the testator intended a gift to a class. He gives all his pure personalty to the Consumptive Hospital with the exception of a few sums for masses. His farm is left to the members of his family that should survive him. The testator’s true intention was to make a gift to his sisters as a class, and he never intended by the revocation to do more than cut down the number of that class by one.
Cases and authorities cited:
II. Jarman on Wills 1128; Smith’s Trusts, 9 Ch. D. 117;
Stansfield v. Stansfield, 15 Ch. D. 84;
Ramsay v. Shelmerdine, L. R. 1 Eq. 129;
Cresswell v. Cheslyn, 2 Eden 123;
Boulcott v. Boulcott, 2 Dr. 25;
M’Kay v. M’Kay, [1900] 1 Ir. R. 213;
In re Moss ; Kingsbury v. Walter, [1899] 2 Ch. 314, and [1901] A. C. 187.
Chatterton, V.-Ch.
I should like to decide in favour of the contention that the two sisters, Kate and Anne Orford, take the farm between them, but I am afraid that I cannot do so. It is quite plain that the gift was to the three sisters as personœ designatœ as tenants in common, and when the testator by his codicil revoked the share of Theresa it was withdrawn from the gift and not disposed of. The Consumptive Hospital therefore takes it as residuary legatee.
curti
Cases Various Issues
In re the Estate of Myles Deceased
[1993] ILRM 34, Lardner J
This is an application by Sarah Robinson, a niece of the deceased, Margaret Ismay Myles, for liberty to apply for a grant of probate of an alleged last will dated 21 October 1970 of the deceased. The applicant is the daughter of a deceased brother of Margaret Ismay Myles. The deceased was a spinster and died on 13 March 1991 leaving only two brothers and the applicant as next-of-kin. She made what, on the evidence, appears to be her last will viz a handwritten document dated 21 October 1970.
It is written on two sides of a sheet of writing paper. It contains a revocation clause and appoints her brother, who pre-deceased her, as sole executor and trustee. It then makes a number of pecuniary bequests and leaves the residue of the estate in equal shares between the said brother and the National Association for Cerebral Palsy. There are in all six paragraphs in this will. It is dated at the foot 21 October 1970 and below there are the signatures of two witnesses Bridget McDevitt and Angela Kearns, though no proper attestation clause. It is clearly a home-made will. At its foot is the signature ‘M.I. Myles’ which I am satisfied is the testatrix’s signature.
There are a number of difficulties in this will.
Firstly five of the paragraphs are crossed out. At the top of the will in the margin is a note ‘remake cancelled’ and it appears to be signed by the testatrix but her signature is not witnessed. In the margin of paragraph two appointing an executor and trustee there is a further note ‘cancel this’. These words are initialled by the testatrix: but not signed by witnesses.
Clause 3(a), (b) and (c) bequeath certain pecuniary and specific legacies. 3(a) is:
To the trustees of the Central Presbyterian Association £500 towards the upkeep of their premises number 16 St Stephen’s Green Dublin.
This has lines of deletion drawn through it.
Clause 3(b) is:
To Mrs Byrne, widow of Cherbury Cottage, Booterstown Avenue, Dublin the sum of £500 for her sole use.
This is also crossed out by lines of deletion and in the margin is written:
Moved to new address.
*36
Clause 3(c) is:
Every content of my flat to my brother R.B.M.
This appears to be crossed out.
And clause 3(d) is:
The balance of my estate to be divided equally between my brother Major Robert Bradford Myles Carnbeg, Dundalk and the National Association for Cerebral Palsy Ltd, St. Brendan’s, Sandymount Avenue, Dublin.
This clause is crossed out with four lines of a pen. At the side is written:
Between Cerebral and Institute for the Blind.
One of the two witnesses remembers being asked by the deceased to witness her will but cannot positively say the testatrix signed in her presence. She says the testatrix kept her hand over the contents of the will while the witness signed it. The other witness believes the deceased did sign in the presence of both witnesses. She says:
I do have a recollection that the deceased did cross out part of the will before signing it but as to what part or parts thereof were so crossed out I cannot recall.
In these circumstances the first question is what parts of the will had been crossed out before execution and what parts after execution. The other question is when were the writings in the margins made. In regard to the crossed out clauses, if any of them was deleted after execution, it is clear from s. 86 of the Succession Act that such deletion would not effect a revocation of the clause unless it was executed in the manner required for the execution of a will. None of the deletions in the present will are so executed. There are the initials of the testatrix but no signature of witnesses. In these circumstances I do not conclude that any of these deletions, if made after execution of the will, effected a revocation of the will or any part thereof as originally made.
The next question as to when the writings in the margins were made is not dealt with in the evidence on affidavit. From an examination of the will I should be inclined to come to the conclusion that these marginal writings were made after the body of the will had been written out and, at least as to some of them, probably after the will had been executed. The difficult question, in the light of the evidence, is what was contained in the body of the will uncrossed out at the time of its execution or to put it another way which deletions and alterations were made before execution and which after. Insofar as they were made before execution, they were validated by the execution of the will. Insofar as they were made after execution, they are ineffective and do not constitute part of the executed will. I note that there is a rebuttable presumption that an alteration, *37 obliteration or interlineation was made after execution. See In the Goods of Adamson (1875) LR 3 PD 253. This presumption may be rebutted by reasonable evidence including evidence afforded by the will itself. See In re Hindmarch (1866) LR 1 PD 307. Hanna J in In the Goods of Benn [1938] IR 313 considered interlineations in a holograph will where there was no direct evidence forthcoming as to whether the interlineation was inserted before or after execution. He decided that the court might rely on its own judgment on the internal evidence as presented by the fabric of the will and also upon the evidence of a handwriting expert as to the appearance of the writing in the document and whether the interlineation was inserted before or after execution. In that case he was satisfied that the interlineations were inserted before the will was executed.
I have examined the present will carefully. I find it difficult to make any judgment whether the crossings out and the writings in the margins were made with the same pen and ink as the original text. There has been no evidence as to the date of sale of 16 St Stephen’s Green or of Mrs Byrne’s move from Cherbury Cottage. It may be that in these instances the crossings out relate to these events. Further there have been no submissions made by counsel for the applicant or for the residuary legatees as to what was the state of the will at the time of its execution and no expert evidence in regard to the handwriting and the lines of deletion has been offered. There remains to be considered the rebuttable presumption that the alterations were made after execution. In addition I must have regard to the evidence of the attesting witness:
that the deceased did cross out part of the will before signing it but as to what part or parts thereof were so crossed out I cannot recall.
It seems to me that I cannot disregard this evidence. If it is accepted it tends to rebut the presumption. But one is left in an altogether uncertain mind as to what part or parts were crossed out before execution and what after and so as to what was the extent of the will at the time of execution. The applicant by applying for probate takes on the burden of proving on the balance of probabilities what constituted the will at the time of execution. I do not find that burden has been discharged by the evidence which has been adduced. In the circumstances I decline to grant liberty to apply for a grant of probate. But as the applicant is clearly entitled to a grant of administration (as was submitted to me in the alternative) I will allow that application.
In re Stamp, Deceased; Stamp v Redmond
[1993] ILRM 383 Lardner J
By his last will and testament dated 22 March 1954 John Stamp, having appointed his sons Philip, William and Patrick to be his executors and trustees, directed that his debts be paid and that his funeral and testamentary expenses be borne equally by his three sons, Philip, William and Patrick. He provided that his wife was to have a right of residence in his house for her life and to be supported, clothed and maintained therein in the manner to which she was accustomed. He then directed that his sons Philip, William and Patrick were to pay a contribution in equal shares for the support, clothing and maintenance of his son Thomas.
There follows a devise and bequest which substantially completes the will. It devises and bequeaths all the testator’s property of whatever kind real and personal to the executors and trustees upon trust for his son Patrick Stamp ‘provided always that if he shall die without leaving issue then upon trust for my grandson John Stamp’, the son of Philip Stamp.
The testator died on 14 May 1954 aged 84 years. His will was duly proved. Patrick Stamp, the plaintiff, who was unmarried at the dates of the will and of his father’s death, married two years afterwards. There have been no children of the marriage of Patrick and Kathleen Stamp but in 1965 they adopted a daughter, Mary Stamp, and in 1967 they adopted a second daughter, Elaine Stamp.
The issue raised in the special summons is whether the words ‘die without leaving issue’ in the devise and bequest in the trust for Patrick Stamp means dying without children related by blood to Patrick Stamp, or descendants of Patrick Stamp, or whether it has a wider meaning which comprehends Patrick Stamp’s two adopted daughters.
Patrick Stamp brings the special summons on his own behalf and on behalf of his adopted daughters and all persons who will take if the clause is given a wider meaning. The defendant John Stamp is the grandson mentioned in the *385 clause to which I have already referred. It is agreed by all the parties that, although the event to which this disputed clause refers is still contingent, I should determine the issue raised, and in this case I think it is appropriate to do so.
For the plaintiff it was submitted that the Adoption Act 1952, which became law on 13 December 1952 and made the first statutory provision for adoption in Irish law, effectually changed the scope and meaning of ‘family’ so as to include adopted as well as legitimate children; that in the reference to it of the Adoption (No. 2) Bill 1987 in [1989] ILRM 266, the Supreme Court recognised that the effect of an adoption order is that a child is taken out of the family it is born into and is incorporated into the adopting family, and that the policy of the law add the Constitution is to regard adopted children as equivalent to natural children and to confer the same status on them.
In the present case the testator made his will and died several years before Patrick Stamp married and before he adopted his two daughters. The will was made about 15 months after the enactment of the Adoption Act 1952. It was urged that the will disclosed an intention to keep the residue in the testator’s family; that if there was no evidence that the testator had adverted to or considered the possibility of Patrick Stamp adopting a child or children, the court should, in the absence of words showing an intention to exclude adopted children, lean in favour of a construction which favours the inclusion of adopted children and that this would be consistent with the policy of the Adoption Acts. It was further submitted that the use of the word ‘issue’ did not manifest an intention to exclude adopted children and that the court, in the absence of such words showing an intention to exclude should lean in favour of the construction of the word ‘issue’ as including adopted children. It was said that such a construction would not infringe the freedom of testamentary disposition which the testator in this case was entitled to exercise.
Before considering these submissions it is relevant to note that s. 26(2) of the Adoption Act 1952 is in these terms:
In any disposition of real or personal property made, whether by instrument inter vivos or by will (including codicil), after the date of an adoption order —any reference (whether express or implied) to the child or children of the adopter shall, unless the contrary intention appears, be construed as, or as including, a reference to the adopted person;
(b) any reference (whether express or implied) to the child or children of the adopted person’s natural parents or either of them shall, unless the contrary intention appears, be construed as not being, or as not including, a reference to the adopted persons.
Subs. (4), which is not directly relevant, provides:
Notwithstanding any rule of law, a disposition made by will or codicil executed *386 before the date of an adoption order shall not be treated for the purposes of this section as made after that date by reason only that the will or codicil is confirmed by a codicil executed after that date.
S. 26 is clearly concerned with the property rights of an adopted person when a testamentary disposition is made after the making of an adoption order. In this case the will preceded the two adoption orders by several years.
The plaintiff Patrick Stamp had not married and had no children, natural or adopted, when the will was made. The primary duty of the court in the construction of a will is to consider the words used and to ascertain from them the testator’s intention. The question is, what is the meaning of the words used? If the language used in the will can be read in its ordinary natural sense so as to make sense with respect to the surrounding circumstances, no rule of construction is applicable to ascertain the testator’s intention. Consideration of the present will shows an intention to make the provisions specified for the testator’s wife and then to leave substantially the residue upon trust for Patrick Stamp and it is in these terms:
I leave devise and bequeath all my property of whatever kind and wherever situate real and personal to my said executors and trustees upon trust for my son Patrick Stamp provided always that if he shall die without leaving issue then upon trust for my grandson John Stamp ….
There is here a clearly expressed intention to benefit the testator’s son Patrick Stamp, that in the event of his dying without leaving issue the property should be held in trust for John, the grandson of the testator. What meaning was intended by the testator when he used the words ‘die without leaving issue’ in relation to Patrick Stamp? I have already referred to the ingenious submission made by Mr Clarke SC on behalf of Patrick Stamp and his two adopted daughters, but I have to say that I am unable to accept this argument. In my judgment the word ‘issue’ is not so esoteric or so much a word used in some specialist field as to have no ordinary meaning in common usage. On the contrary, its ordinary meaning is issue of a marriage or descendants and it would be so understood by persons of ordinary education. Furthermore, in 1954 when the will was made it had been well settled for many years that a bequest to ‘issue’prima facie connoted descendants of every degree when not restrained by the context (see: Berry v Fisher [1903] 1 IR 484). This was also recognised in the Supreme Court judgment by Walsh J in O’B. v S. [1984] IR 316, 330.
This will appears from the attestation clause to have been made in a solicitor’s office which, in my view, makes it likely that ‘issue’ was used in its well settled sense. From a consideration of all its terms and of the context, in my judgment that was the sense in which the testator in this case used the words and his intention is to be found expressed in those words. I do not find that the terms of *387 s. 26 of the Adoption Act 1952, to which I have already referred, require me to reach a different conclusion. Counsel have referred me to the Status of Children Act 1987 and have agreed that it does not affect this case.
I think it is perfectly clear, even now, that adopted children are not regarded as children of a marriage and therefore the answer to question (a)(i) is that the words in the devise and bequest referred to mean children of the marriage of Patrick Stamp. Questions (ii), (iii) and (iv) do not therefore arise. The parties are entitled to their costs out of the estate.
Re Collins; O’Connell v. Bank of Ireland
[1998] 2 I.R. 596; [1998] 2 I.L.R.M. 465 Keane J Supreme Court
The factual background
The factual background to these proceedings should first be summarised. The deceased named in the title, Mary Frances Collins, was a widow who lived in a house at 14 Mount View Terrace, St. Lukes, in the city of Cork. She died on 6 January 1994, having made her last will dated 15 December 1993, a grant of probate of which was issued to the defendants/respondents (the executors named therein) on 31 August 1994.
Clause 4 of the will was as follows:
I leave and bequeath all the contents (other than cash and securities) of my residence at 14 Mount View Terrace aforesaid to Joe and Alma O’Connell of 9 Inchvale Avenue, Shamrock Lawn, Douglas, Cork.
The two beneficiaries named in that bequest are the plaintiffs/appellants in these *468 proceedings.
There follow a number of pecuniary legacies, some of them to named charities, and there is then a residuary clause in the following terms:
6. I leave devise and bequeath all the rest residue and remainder of all my property of whatsoever nature and kind both real and personal of which I shall die possessed or entitled to the superioress for the time being of the Sisters of Charity, St. Patrick’s Hospital, Wellington Road, Cork for the charities under her care.
There was no specific bequest of the deceased’s house.
Mrs Bernadette Healy, a neighbour of the deceased, who was also on terms of close friendship with her, said in an affidavit that she had told the first named plaintiff on the morning of her death that the plaintiffs had been left the house and gave him a key of the house which she had in her possession. She also gave him a briefcase containing personal documents of the deceased, including a photocopy of the original will. The first named plaintiff then realised that only the contents of the house had in fact been left to him and his wife and this was confirmed when he went to see the solicitor who acted on behalf of the deceased.
Mrs Healy said that, for some period prior to her death, the deceased had spoken to her about changing her will and had said that she wanted the plaintiffs to have her house, because they had a young family and she thought this would be of some benefit to them. Mrs Healy said that she told the deceased to be sure to tell her solicitor that the contents were to be left to the plaintiffs in the will, because if the house was left on its own, the contents would not go to the plaintiffs. Mrs Healy said that her reason for emphasising this to the deceased was that she had recently been talking to a friend of hers who had been making a will and had been advised of the importance of leaving the contents along with the house when leaving the house to her son. She told the deceased that ‘there could be trouble about the contents’ if they were not included with the house. She said that before the deceased left for the hospital where she subsequently died shortly after Christmas 1993, she again said that she hoped the house would be ‘of good use’ to the plaintiffs. It was on that occasion that she gave the briefcase to Mrs. Healy. Mrs. Healy said she was very concerned to discover subsequently that the plaintiffs had not in fact been left the house, since she attributed this to the emphasis she laid in her conversation with the deceased on the importance of mentioning the contents.
The first named plaintiff said that on Christmas Day, 1993, the deceased came to his house for Christmas dinner, which she did every year. A few days prior to that, she had told him on the telephone that she had something that she wished to discuss with him and the second named plaintiff. On Christmas Day, *469 she told him that she had been to her solicitors about ten days previously, that she had made a will and that she had left her house and contents to the plaintiffs. She added that the contents were not worth much, but that there was no point in leaving them the house without the contents. She also said that she was happy with what she had done and that, when she died, the plaintiffs should get in touch with her solicitors about the house.
The deceased had made three earlier wills in 1952, 1972 and 1987. They were all made, however, when her husband was alive and they had decided to make mutual wills. While there were different provisions in each of the wills, the house was not specifically bequeathed in any of them: it passed with the residue of her property in each case to her husband. There were then other provisions for what was to happen in the event of his predeceasing her.
The solicitor who prepared the will, Mr Gerald Moloney, in an affidavit said that the deceased called to him by appointment on 13 December with a view to making changes in her will. Mr Moloney said that they discussed her previous will and she then gave her instructions to him which he noted on an attendance docket. She dealt initially with the residue and indicated that she had been very impressed by the manner in which the Mary Mount Hospice had looked after her late husband and that she wanted to leave the residue to them rather than to the several charities which had been named in her earlier will. She also indicated that she wished to change two of the pecuniary legacies in the 1987 will and Mr Moloney said that he noted those changes. She had brought with her a list of five names and addresses and said that she wished to leave £500 to each of them. He said that he photocopied the list and retained the photocopy giving her back the original list, while he noted the fact that each was to have a legacy of £500. Mr Moloney then said that he asked the deceased whether there was anything else and she then told him that she had been thinking of leaving something out of the house to the first named plaintiff, who was already mentioned in her earlier will. Mr Moloney’s recollection was that, when it became apparent to him that she was not sure what she had in mind, he suggested that she might consider leaving him the entire contents of the house. She said that she agreed with that suggestion and that she would leave the contents to both plaintiffs. He noted on the reverse side of the docket that all the personal effects and the contents of the house were to go to them. At that stage, she said that she was not absolutely sure that they were still at the address given in the 1987 will, but that she would check it and let him know. She enquired when the will would be ready and he made an appointment with her for 15 December.
Mr Moloney said that he subsequently dictated a draft will incorporating the changes which he had noted and on the following day received confirmation by telephone as to the address of the plaintiffs. He said that on 15 December, when the deceased called by appointment, he told her that the will was ready and suggested that he would go through it with her. He said that he then read over *470 the will clause by clause, but paraphrasing each clause rather than reading it out word for word. He said that in his opinion she had no difficulty in hearing what he said and appeared perfectly to understand the contents of the will. When he had finished, she confirmed that was what she wanted and the will was then executed by her in the presence of Mr Moloney and another member of his firm, each of them signing the will as witnesses.
The proceedings
The present proceedings were instituted by way of special summons and the special endorsement of claim sought answers to the following questions which were said to arise out of the terms of the will of the deceased:
(a) Whether clause 4 of the said will of the deceased carries into effect the expressed intention of the deceased in the disposal of her house at 14 Mount View Terrace, St. Lukes in the City of Cork.
(b) Whether the deceased could have intended to leave only the contents of the house to the plaintiffs, thereby leaving no specific bequest of her dwelling house, which was a major asset of her estate.
(c) If the answers to the questions above are in the negative, whether the dwellinghouse forms part of the residue of the estate of the said deceased.
The summons also sought the following relief:
2. If the answers to the questions I(a) and I(b) are in the affirmative, an order directing the words ‘my dwellinghouse and’ be inserted to clause 4 of the said will after the words ‘I leave and bequeath’ so that clause 4 of the said will reads as follows:
‘I leave and bequeath my dwellinghouse and all contents (other than cash and securities) of my residence at 14 Mount View Terrace aforesaid to Joseph and Alma O’Connell of 9 Inchvale Avenue, Shamrock Lawn, Douglas, Cork.’
3. In the alternative, a declaration that the residuary legatee and devisee in all the circumstances holds the said dwellinghouse of the deceased upon trust for the plaintiffs.
The action came on for hearing in the High Court before Barron J and all the witnesses already referred to gave oral evidence to the same effect as what they had said on affidavit. There was also evidence by a Mr William J.A. Rea who said that he was very well acquainted with the deceased and her husband and that he had on several occasions been given to understand that, when they were both dead, most of the estate would go to the first named plaintiff.
*471
The action was dismissed by the learned High Court judge. It was acknowledged on behalf of the plaintiffs that, having regard to the decision of this Court in Rowe v. Law [1978] IR 55, they could not avail of s.90 of the Succession Act 1965 (hereafter ‘the 1965 Act’) so as to rely on extrinsic evidence adduced as to the intentions of the deceased, in the absence of any ambiguity in the will itself. They relied, however, on another decision of this Court in Curtin v. O’Mahony [1991] 2 IR 562 as entitling the court to grant the relief which they sought.
In his judgment, the learned High Court judge said that he was satisfied that the case of Curtin v. O’Mahony was distinguishable from the present case. He considered that no ground had been established for construing the will other than in accordance with its terms. He added:
The present case is particularly hard for the plaintiffs since I preferred the evidence of the witnesses for the plaintiffs to that of the solicitor who prepared the will. While it may have been possible that the deceased was so concerned to ensure that the contents were left to the plaintiff as well as the house as to forget to mention the house, I cannot accept that the express instructions which she gave her solicitor did not include reference to either her house or its contents. Nor can I accept that she only dealt with the contents because she communicated an uncertainty to her solicitor who elicited from her a wish to leave the plaintiffs an item from her home. I am quite satisfied on the evidence which I have heard that the testatrix intended to leave the plaintiffs the house as well as the contents thereof. I fully appreciate Mrs. Healy’s worry that her insistence to the deceased to be sure to leave the contents as well as the house has been the cause of what occurred.
From that decision, the plaintiffs have appealed to this Court. The defendants have also served a notice to vary the order as to costs made in the High Court, one of the grounds advanced being that the learned trial judge erred in law and on the facts in preferring the evidence of the witnesses for the plaintiffs to that of the solicitor who prepared the will.
On the hearing of the appeal to this court, it was submitted on behalf of the plaintiffs by Mr Brian Spierin that the decision in Rowe v. Law was wrong in law and should be overruled. It would then follow, in the light of the findings of fact made by the trial judge, that the plaintiffs were entitled to the relief which they had sought. They would, in any event, he submitted, be entitled to that relief, having regard to the decision of this Court in Curtin v. O’Mahony.
On behalf of the defendants, Mr Frank Clarke SC submitted that the decision of this Court in Rowe v. Law was correct in point of law and should not be overruled. He further submitted that the trial judge was correct in treating the decision in Curtin v. O’Mahony as entirely distinguishable from the present case.
*472
S. 90 of the 1965 Act and Rowe v. Law
S. 90 of the 1965 Act, which appears in Part VII under the heading ‘WILLS’, provides that:
Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.
In Rowe v. Law, the testatrix had directed her executors and trustees to set aside a sum of £1,000 in the purchasing and furnishing of a ‘suitable cottage residence’ for two named persons who were residing with her and, subject thereto, as ‘to any balance then remaining’ to pay the income to the persons concerned during their joint lives and to the survivor during his or her life. As and from the death of the survivor, the sum of £1,000 or the investments representing it, was to go to a named legatee. After payment of one further legacy, the remainder of the estate was to go, both as to capital and income, to the plaintiffs.
There was a conflict of evidence on affidavit between the first named plaintiff and the first named defendant, who was the solicitor who prepared the will. The former said that he was present when the testatrix gave instructions for the will to the first named defendant and that her expressed intention was that the balance of the estate was to pass to the plaintiffs. The solicitor said that her instructions were that the balance of the total estate should go to the persons given the life interest in the cottage. In the High Court, Kenny J held that there was no ambiguity in the terms of the will and that, accordingly, extrinsic evidence was not admissible to show the intention of the testatrix. That conclusion was upheld on appeal by a majority of this Court (Henchy and Griffin JJ), O’Higgins CJ dissentiente .
All three judges in this Court upheld the finding of Kenny J at first instance that the terms of the will were clear and unambiguous and contained no contradiction. In those circumstances, the majority were of the view that s.90 could not be invoked so as to allow extrinsic evidence to be adduced as to the intention of the testatrix with the purpose of incorporating in the will different or additional provisions.
O’Higgins CJ, however, was of the view that s.90 also applied in a situation where there was a contradiction between the actual intention of the testator and what was said in the will and that this would include situations in which an error had been made by a solicitor or other person in the preparation of the will. The only such evidence which could be admitted, however, was what was said and done at the time of the making of the will.
In this case, as in Rowe v. Law, the terms of the will are clear and unambiguous. The house, not having been specifically bequeathed to the plaintiffs or to anyone else, passed with the residue and all that went to the plaintiffs was the contents. There was, however, evidence which was accepted by the trial judge *473 that the will in so providing was at variance with her expressed intention at the time. But if Rowe v. Law was correctly decided, the extrinsic evidence as to the intentions of the deceased was not admissible under s.90 and it would follow that (subject to the alternative submission founded on Curtin v. O’Mahony) the appeal would inevitably fail.
In the course of his judgment in Rowe v. Law [1978] IR 55 at p. 72, Henchy J. said:
I read s. 90 as allowing extrinsic evidence to be received if it meets the double requirement of (a) showing the intention of a testator and (b) assisting in the construction of, or explaining any contradiction in, a will. The alternative reading would treat the section as making extrinsic evidence admissible if it meets the requirement of either (a) or (b). That, however, would produce unreasonable and illogical consequences which the legislature could not have intended. If the section made extrinsic evidence admissible merely because it satisfies requirement (a), then in any case the court could go outside the will and receive and act on extrinsic evidence as to the intention of the testator. The grant of probate would no longer provide an exclusive and conclusive version of the testamentary intention as embodied in the will. However, it would be unreasonable and contradictory for the legislature, on the one hand to lay down in s. 78 the formal requirements for the disposition of one’s property by will, and on the other to allow by s.90 (without qualification or limitation as to purpose or circumstances or time) extrinsic evidence of the intention of the testator to be admitted. Such a sweeping and disruptive change, fraught with possibilities for fraud, mistake, unfairness and uncertainty, should not be read into the section if another and reasonable interpretation is open.
Griffin J, who also emphasised the fact that s.78 of the 1965 Act set out in detail the formalities necessary for a valid will, said at p. 27:
If extrinsic evidence of the dispositive intention of a testator is to be admitted without qualification, the effect of this would be that a new will could be written for the testator, this will to be collected from the statements and declarations of the deceased at the time of, before, or after the making of the will, without compliance with the provisions of s. 78. The effect of this would be to nullify those provisions and to render ineffective the safeguards provided therein.
O’Higgins CJ, in his dissenting judgment, having referred to the legislative history of the 1965 Act as it progressed through the Oireachtas, summarised his conclusions as follows at p. 67:
In fact a true construction of the will cannot be other than a true reflection of the intention of the testator. If there is a difference between them, then it is indisputably clear that the actual intention of the testator has not been reflected in the *474 construction of the will. As the law stood before 1965, it was not possible to ensure against such an event and there is ample evidence to show that in many cases construction of particular wills did not reflect the intention of the testator. The problem before the Oireachtas was to change the law to enable that position to be achieved, i.e. to get rid of the general rule which rendered inadmissible any such extrinsic evidence for the purpose of ascertaining the actual intention of the testator as well as for the purpose of explaining contradictions within the will itself.
The law prior to the 1965 Act
The law as it stood prior to the enactment of the 1965 Act should first be considered.
The general principle was and is that, in construing a will, the object of the court is to ascertain the expressed intention of the testator. The law was thus stated by Lord Simon LC in Perrin v. Morgan [1943] AC 399 at p.406:
The fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case — what are the ‘expressed intentions’ of the testator.
The general rule also was that extrinsic evidence of a testator’s declarations of intention as to the meaning to be put on the language of his will was not admissible as direct evidence of his testamentary intention.
In In re Julian [1950] IR 57 at p. 62, Kingsmill Moore J said:
The Wills Act requires that wills should be in writing, duly witnessed and signed, and to admit direct parol evidence of intention to control the meaning of the will would be to nullify the statute. In two cases only, as far as I know or have been able to ascertain, is such evidence allowed; to rebut or support certain bare legal presumptions and to determine which of several persons or things are comprised in a truly equivocal description, that is to say, a description which applies accurately to two different persons or objects.
In a later part of his judgment in that case, the learned judge refers to another category of cases in which extrinsic evidence may be admitted, not strictly speaking as evidence of the intention of the testator, but rather of circumstances existing at the date of his death which he might have had in mind and which accordingly might assist the court in the construction of the language used in the will. James LJ in Boyes v. Cooke (1880) 14 Ch D 53 said:
You may place yourself, so to speak, in [the testator’s] armchair and consider the *475 circumstances by which he was surrounded when he made his will to assist you in arriving at his intention.
Such evidence was admitted, not as direct evidence of the testator’s intention, but rather as circumstantial evidence which assisted the court in inferring what the testator’s intention was. Under this rule — sometimes referred as ‘the armchair principle’ — evidence could be adduced as to the testator’s knowledge of and relations with the different persons or institutions who claimed to be the object of a gift under his will.
The policy underlying these decisions was clear: the detailed requirements of the legislature as to the execution, attestation and publication of wills could not, in general, be circumvented by allowing parol evidence to be admitted as to the intentions of the testator, save in the limited circumstances to which I have referred. However, the strict application of those principles by the courts led on occasions to perplexing results, of which in In re Julian itself is a remarkable example.
In that case, the testatrix in her will left a sum of £1,000 ‘to the Seamen’s Institute, Sir John Rogerson’s Quay, Dublin’. Two institutions claimed the sum, the Dublin Seamen’s Institute, Eden Quay, and the Catholic Seamen’s Institute, Sir John Rogerson’s Quay. One of the objects of each institution was to provide for the religious needs of seamen, in the case of the first by purely Protestant religious teaching, in the case of the second by exclusively Roman Catholic religious teaching. The undisputed evidence was that the testatrix, who happened to be a Protestant, knew the first institute well, had visited its premises and had subscribed to its funds. There was no evidence that she had ever heard of, or been interested in, the second institute. However, Kingsmill Moore J considered he was bound by the authorities to hold that this was not a true case of equivocation, since that exception to the general rule only applied where the description in the will applied accurately to two different objects. In the instant case, it applied partly to one object and partly to another, but accurately to neither. Hence, the evidence as to the intention of the testator was not admissible and, since the only seamen’s institute on Sir John Rogerson’s Quay was the Catholic Seamen’s Institute, the learned judge felt coerced to hold that, in the absence of admissible parol evidence as to her intention, the will would have to be construed as referring to that institute. He added at pp. 65–66:
I regret having to give this decision, for the evidence which I have excluded, if I were allowed to take it into account, would convince me to a moral certainty that the testatrix intended to benefit the Dublin Seamen’s Institute ….
This is by no means the first — and, equally certainly, will not be the last — case in which a judge has been forced by the rules of law to give a decision on the *476 construction of a will which he believed to be contrary to the intentions of the testator.
Conclusions
S. 90 of the 1965 Act was, at the least, intended to alter the law by enabling extrinsic evidence to be adduced as to the intention of the testator where that would assist in the construction of, or explain contradictions in, the will. The submission on behalf of the plaintiffs, however, is that it was intended to go radically further and enable such evidence to be adduced, not merely with the view to resolving ambiguities or uncertainty in the language used, but to supplement, and even to contradict, what the testator had actually said, however clearly and unambiguously, in the will itself.
If the latter was indeed what the Oireachtas intended, then s.90 should, in logic, have read simply:
Extrinsic evidence shall be admissible to show the intention of the testator.
The remaining words of the provision are, on the interpretation put forward on behalf of the plaintiffs, superfluous since, on that reading, parol evidence of the intention of the testator is admissible in every case, and not simply where it assists in resolving ambiguities or explaining contradictions in the will.
The alternative construction, which was upheld in the High Court and by the majority of this Court in Rowe v. Law, is that extrinsic evidence was henceforth to be admissible as to the intention of the testator, not merely in the severely confined category of cases already referred to, but in every case where it assisted in the construction of, or resolved contradictions, in the will. That reading of the section is not only logical, but in grammatical terms is consistent with the use of the conjunctive ‘and’ rather than the disjunctive ‘or’. There are thus two conditions which must be met before such evidence is admissible: it must assist in the construction of the will or resolve a contradiction and it must, in either event, show what the intention, in the particular context, of the testator was.
Any other construction of s.90, as the judgments of Henchy and Griffin JJ in Rowe v. Law made clear, would have led to a radical and far reaching change in the law which it cannot have been intention of the Oireachtas to bring about by such, at best, opaque and ambiguous language. As Griffin J pointed out, where evidence of intention was admissible at common law, declarations made by the testator before, after and contemporaneously with the will were all admissible. He added at p.77:
If s.90 is to be given the interpretation contended for by the appellants, I see no reason whatever why the same rule should not apply as applied at common law *477 when extrinsic evidence was admitted, and why declarations made by a testator years before or after the making of the will should not be admissible. To hold otherwise would require reading into the section limitations that are not there.
The authorities cited by Griffin J make it clear that this was the position at common law. In Doe d. Allen v. Allen (1840) 12 Ad & E 449, which was a case of equivocation, Lord Denman CJ said:
The only remaining point is, whether the time when these declarations were made, viz. some months after the will was executed, makes any difference. Cases are referred to in the books to show that declarations contemporaneous with the will are alone to be received: but, on examination, none of them establish such a distinction. Neither has any argument been adduced which convinces us that those subsequent to the will ought to be excluded, wherever any evidence of declarations can be received. They may have more or less weight according to the time and circumstances under which they were made, but their admissibility depends entirely on other considerations.
It is true that in an earlier case of Langham v. Sanford (1816) 19 Ves 654, Lord Eldon LC said that most weight was to be given to what was said at the time the will was made, but the general principle was stated by him as follows:
it is unfortunate, but it is certainly settled, that declarations at the time of making the will, subsequent and previous to it, are all to be admitted: yet we know, that what men state as to their intentions may be conformable to the purpose at the time, but not afterwards; and declarations by a testator, after having made his will, are frequently made for the purpose, not of fairly representing, but of misrepresenting, what he had done.
It would thus follow, if the plaintiffs’ submission is well founded, that the will of a deceased person could consist of various statements, written and oral, which he or she had made during the course of his or her life and that, to the extent that they supplemented, varied or contradicted the terms of the will of the deceased as admitted to probate, they, rather than the will so proved, would constitute the effective testamentary document. That far reaching conclusion is supported neither by the language of s.90 nor the policy, in this context, of the 1965 Act and the earlier legislation which it replaced or re-enacted.
In his dissenting judgment in the same case, O’Higgins CJ drew attention to the legislative history of the 1965 Act as supporting his view that a more radical change in the law was intended to be effected by s.90. When the Bill was first introduced, the relevant provision read:
Extrinsic evidence shall be admissible to assist in the construction of a will or to explain any contradiction therein.
*478
He added at p. 67:
As passed, the section expressly provides for extrinsic evidence to show the intention of the testator where no such words had been contained in the corresponding section of the bill as introduced. It seems clear that in the section as enacted an indissoluble link has been created between the testator’s intention and the construction of the will.
I cannot, with respect, agree that this alteration in the terms of the provision during its passage through the Oireachtas supports the conclusion reached by the learned Chief Justice in that case. Had the words as to the intention of the testator been omitted, the provision might simply have stated the existing common law position, since, as I have made clear, extrinsic evidence was already admissible to assist in the construction of a will, e.g. under the armchair principle, but not in the form of direct evidence of the intention of the testator, save in very confined circumstances. Hence, without the addition of the reference to the intention of the testator, the section might well have been construed by the court as being simply declaratory of the existing law.
O’Higgins CJ also commented as follows on the decision in In re Julian at p.67:
If s.90 had existed when In re Julian was decided the result would have been otherwise, and I have no doubt that it was passed for the purpose of dealing with that kind of case. Of course, if the section were to be interpreted in the manner in which the learned trial judge interpreted it, no change would be possible in cases such as In re Julian because, as in this case, the words used in the will are unambiguous and clear and no contradiction exists.
Again, I cannot, with respect, agree. A description of the object of the testatrix’s bounty as ‘the Seamen’s Institute, Sir John Rogerson’s Quay’ when there were in fact two seamen’s institutes in Dublin, one called ‘the Dublin Seamen’s Institute’ and situated at Eden Quay, the other called ‘the Catholic Seamen’s Institute’ and situated at Sir John Rogerson’s Quay could hardly be regarded as a clear and unambiguous description of the institute intended to be benefited.
I am satisfied that the decision of the majority in Rowe v. Law was correct in point of law and should be upheld. There remains the argument advanced on behalf of the plaintiffs founded on the decision of this Court in Curtin v. O’Mahony.
The facts in that case were as follows. The testator, who was a widower with no children, left an estate valued in excess of £100,000, which included a dwellinghouse sold after his death. In the will, he left this house to a lady absolutely, or in the event of her predeceasing him, to her husband. The will then provided that, in the event of the testator selling the dwellinghouse, his estate *479 should be divided into percentage shares for a number of charitable and other bequests. The dwellinghouse had not been sold at the time of his death.
This was, to put it mildly, a mystifying provision: there seemed no reason why the disposition of his entire estate to a number of charitable and other beneficiaries in specified proportions should be dependent on the happening of an apparently irrelevant event, i.e. the sale of the dwellinghouse. Yet there was no provision for what was to happen in the event of the house having been unsold at his death, as it was. To add to the confusion, the percentages in which the estate was purportedly distributed in the event of the house being sold amounted to 100.5%.
In these circumstances, it was held by this Court, reversing the judgment of the High Court, that the overwhelming probability was that the testator must have intended a similarly proportionate distribution of the estate, in the event of the house not having been sold at his death and that the will should be construed accordingly. In the High Court, Lardner J had refused to admit extrinsic evidence of the contents of two previous wills as indicating the intention of the testator, considering himself bound so to hold by the decision in Rowe v. Law. However, although that finding was appealed, no argument in support of that ground of appeal was advanced in this Court.
I have no doubt that the decision in Curtin v. O’Mahony is entirely distinguishable from this case. First, the will in that case, literally construed, would have led to an intestacy, which could not have been the intention of the testator; there is indeed a presumption against intestacy. It may be noted, in this context, that s.99 of the 1965 Act provides that:
If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.
That provision is clearly intended to ensure that, where the wording of a will allows of more than one construction, it should be interpreted, if possible, so as to avoid an intestacy arising. It is not specifically referred to in the judgments in Curtin v. O’Mahony, but it is clear from the observations of O’Flaherty J (at p.573) that the presumption against intestacy was of paramount importance in that case. No question of intestacy, however, arises in relation to the will in the present case.
Secondly, the court reached its conclusion solely having regard to the language of the will itself. Accordingly, it did not have to consider the question which has arisen in this case, i.e. as to the extent to which extrinsic evidence showing the intention of the testator is admissible under s. 90 of the 1965 Act.
I am, accordingly, satisfied that the decision of Barron J was correct. There is, however, one other matter to which I should refer. During the course of the *480 arguments, members of the court drew attention to the fact that, in the event of the plaintiffs’ claim being successful, the interests of the residuary legatee, which is a charity, would be seriously affected and, depending on the effect of any order as to costs made in the High Court or in this Court, so also might be the interests of a number of other charitable legatees mentioned in the will. None of these parties was joined in the proceedings nor, it would appear, was the Attorney General even notified of their existence.
This Court has recently drawn attention in In re B. deceased; E.B. v. S.S. [1998] 2 ILRM 141 to the importance of notice being given by the parties to proceedings such as this, where the interests of charities may be affected by the outcome, to the Attorney General as the protector of charities. The court was informed by Mr Clarke in the present case that the superioress of St. Patrick’s Hospital had been told of the proceedings and had indicated that she was happy to leave the protection of the interests of her institution to the defendants. The court was of the view that, in these circumstances, no useful purpose would be served at this stage, and that further delay and costs might well be incurred, if the proceedings were to be adjourned so as to enable the Attorney General to consider whether he should apply to be joined as a party. That should not be taken as relieving parties of their obligation to notify the Attorney General in future of cases such as the present where the interests of charities may be affected.
I would dismiss the appeal, affirm the order of the learned High Court judge and make no order on the notice to vary.
Butler -v- Butler & Ors
[2006] IEHC 104 (24 March 2006)
JUDGEMENT DELIVERED BY MR. JUSTICE T.C. SMYTH
ON FRIDAY 24TH MARCH 2006
INTRODUCTION:
The proceedings are brought by the Plaintiff in his capacity
as the legal personal representative of Timothy Butler, Most
Senior, (hereinafter referred to as “the Deceased”) pursuant
to a grant of administration (with will annexed) de bonis non
issued to him on 29th September 2003. The Deceased lived at
Raheenduff, The Rower, Co. Kilkenny. He made his last will
and testament on 2nd November 1956, in which he appointed his
sons, Martin Butler Senior and Thomas Butler Senior, as
executors and trustees of his will. The Deceased died a
widower aged 86 years of age on 18th May 1963 (accordingly,
the provisions of the Succession Act 1965 which came into
effect on 1st January 1967 do not apply, (S.9(4) of the Act
of 1965). On 28th January 1964, a Grant of Probate to the
estate of the Deceased issued to Martin Butler Senior and
Thomas Butler Senior.
The will of the Deceased contained a Power of Appointment.
Thomas Butler Senior died intestate on 10th December 1966
without exercising the Power of Appointment contained in the
will of the Deceased. The death of Thomas Butler Senior was
untimely – he was only 53. If he was the donee of the Power,
then the default provisions would take effect and all of the
objects of the Power would take equally. The Defendants (and
the independent witness from 1977 to 1992) say that that was
the understanding of the entire family throughout all of the
period 1956 – 2002.
Martin Butler Senior made his last will and testament dated
11th April 1996 and he died aged 85 years of age (described
in his death certificate as a ‘Retired Publican’) on 24th May
2002. He purported to exercise the Power of Appointment in
the will of the Deceased, in the will, he (Martin Butler
Senior) made in favour of the Plaintiff subject to a right of
residence in favour of Maureen Butler, wife of Martin Butler
Senior, for her life.
The parties to these proceedings are the only children of
Thomas Butler Senior who was, as stated, a son of the
Deceased. The position of the Plaintiff is complicated by
the fact that while in his capacity he is required to put all
relevant matters before the Court in an impartial manner, he
in fact also advanced arguments in relation to the
construction of the will of the Deceased that were to his own
advantage. The proceedings seek the construction of the
following clause contained in the will of the late Timothy
Butler, Deceased:
“I give, devise and bequeath the lands of
Ballynunnery, purchased by me from the
representatives of the late Patrick Butler
to my son Thomas Butler for his own use
and benefit absolutely. As to all the
rest, residue and remainder of my property
of every kind and nature, whether real or
personal and wheresoever situated,
including my licensed premises at
Raheenduff and the lands of Raheenduff and
Ballynunnery, I give devise and bequeath
the same to my son Martin Butler for and
during the term of his natural life and
after his death to such of the children of
my said son Thomas Butler as he shall by
Deed or Will appoint and in default of
appointment to all of the children of my
said son Thomas Butler as tenants in
common in equal shares.”
The Special Summons poses the following questions:
i. To whom was the Power of Appointment referred to in the
will of the Deceased granted?
ii. Further or in the alternative, was the power granted to
Martin Butler Senior or to Thomas Butler?
The summons also seeks certain declaratory relief in favour
of the Plaintiff which would not seem to be altogether
appropriate given the capacity in relation to which the
Plaintiff brings the proceedings.
While the two questions posed in the summons most definitely
arise, the questions are incomplete and the replying
affidavit of the First-Named Defendant at paragraph 17 sets
out the additional questions that arise:
(iii) whether in all the circumstances it is unclear from
the terms of the will upon whom the Power of Appointment was
conferred.
(iv) If the answer to (iii) above is in the affirmative
whether the objects of the power take equally?
(v) Whether the Plaintiff is estopped by his conduct or
otherwise from denying the Power of Appointment was conferred
on Thomas Butler? [The Plaintiff contends that the question
of estoppel does not arise.]
(vi) If the Power of Appointment was conferred on Thomas
Butler or the answer to (iii) is in the affirmative, whether
in default of the exercise of the power, which is common
case, the property falls to the objects of the power equally?
(vii) Whether the purported exercise of the Power of
Appointment by Martin Butler Senior is valid?
(viii) Whether the purported exercise of the Power of
Appointment by Martin Butler Senior was ultra vires and void
and liable to be set aside?
(ix) If the power was conferred on Martin Butler Senior
whether it was validly exercised?
(x) The answer to such further or other questions as to the
Honourable Court seems just.
At the opening of the hearing, Ms. Laverty, who appeared for
the Plaintiff, indicated that she was not pursuing some of
the declaratory relief.
THE FACTS:
There are conflicts of fact on the affidavits as to the
belief of the children of Thomas Butler Senior as to upon
whom they believed the Power of Appointment was conferred.
The Defendants and an independent witness (Ms. Carmel Kelly),
a Solicitor who acted for the family, contend that all
parties believed that the power was conferred on Thomas
Butler Senior. The Plaintiff on the other hand contends now
that the Power of Appointment was conferred on Martin Butler
Senior. I am satisfied and find as a fact on the evidence
that at no time prior to the death of Martin Butler Senior
did the Plaintiff ever convey or suggest to his solicitor or
his brothers or sister that Martin Butler Senior had the
Power of Appointment even though there were two express
written family arrangements in which the issue may not have
been central, but to which such belief was relevant. The
Defendants and the solicitor say that insofar as the lack of
certainty was expressed in relation to upon whom the power
was conferred that this was expressed to satisfy the
requirements of a finance house (when the Plaintiff was
raising the finance to develop a site on part of the lands in
1979/1980) and did not compromise their belief that the Power
of Appointment was conferred on Thomas Butler Senior. As at
the date of the making of his will by the Deceased in
November 1956, the position in the family was as follows:-
1. Martin Senior was married for about eight years, but had
no family. The Plaintiff’s evidence was that he thought his
uncle was in his early 40’s at the time and that his aunt by
marriage (Martin Senior’s wife) was about 36 years old. It
seemed unlikely that there would be any children in the
family of Martin Senior.
2. Thomas Senior was a few years younger than his brother,
Martin Senior. In the family of Thomas Senior was his wife
and four children whose approximate ages at the time were
Mary (8), Tim (5) and the Plaintiff, Martin, and the
Defendant, Tom, who were twins aged about 2 years old.
In broad terms, the scheme of the will was that
Thomas Senior was given certain lands outright. Martin
Senior was given the residue, including a licensed premises
and certain lands for his life. After the death of Martin
Senior, the properties in which Martin Senior had a life
interest was, subject to a default of a deed or a will
exercising a Power of Appointment, to go to the four children
of Thomas Senior as tenants in common in equal shares.
However, there was also an in-built protection in the will
for the wife of Michael Senior, who was given a right of
residence and support and maintenance in the dwelling house
at Raheenduff, and for a weekly sum to be paid to his
daughter-in-law if she went to live elsewhere. In short, the
Deceased seemed concerned that both his sons, Martin Senior
and Thomas Senior, and their respective dependents were
provided for.
While certain events occurred after the coming into effect of
the will of the Deceased on his death, to which I will refer
to briefly, the factual context in which the will was ‘made’
is where most if not all assistance in the construction of
the will is to be obtained. In short, the will must be
looked at and construed as at the date of its making and at
the date of death.
The first replying affidavit of Thomas Butler states that the
reason the estate of the Deceased was not administered in
1964 was because of the non-cooperation of Martin Senior, who
was disappointed that he was only left a life interest in
certain properties of the will of the Deceased. The
Plaintiff in oral evidence said that he was not aware of
this, even though he was the closest of his siblings to his
uncle. Even allowing that Martin Senior ‘kept himself to
himself’, I find it difficult to accept that the Plaintiff,
in whose favour his uncle purported to exercise the Power of
Appointment and who was closest, knew nothing of what could
be understood as a possible disappointment. In the same
affidavit, the Defendant, Thomas, avers as follows:
“I believe that the Power of Appointment
was conferred on my late father and not on
my uncle, Martin Butler, because the
objects of the power were myself and my
siblings, and my father would have been
the best placed to decide who, from
amongst his children, might benefit or,
alternatively, if we should benefit
equally or in particular shares and
proportions.”
When giving evidence on affidavit or orally, the Plaintiff
did not take issue with this proposition that the person best
placed to decide concerning the parties to this action would
have been Thomas Butler Senior.
In 1979/1980, the Plaintiff was in course of getting married
and a site was identified on the lands in which his uncle,
Martin Senior, had a life interest. The Plaintiff required a
mortgage from a lending institution to achieve his objective.
I am satisfied and find as a fact on the evidence of Ms.
Carmel Kelly, Solicitor, that doubt had been expressed by the
lending institution as to the title to the plot upon which
the premises were to be built and for the avoidance of that
doubt and no other, and as a comfort to the lending
institution, the Defendants ensured the Plaintiff could
pursue the sale by consenting to the vesting of the plot of
ground in which they and the Plaintiff had a contingent
interest. If the Defendants had no interest in the property,
their consent would have been unnecessary. The averment for
the Defendants is that their action was predicated on the
firm belief of all involved, including the Plaintiff, that
the entitlement to all the property, subject of the life
interest of their uncle, Martin (which included the plot
expressly referred to in the written agreement) vested
equally in all of them.
On being questioned about this transaction, the Plaintiff
tried to convey the impression that the Defendants did not
confer any benefit on him and that he merely agreed to the
arrangement because there was a doubt as to who could
exercise the Power of Appointment. I find his evidence
unconvincing and I find as a fact that if he had a doubt of
any kind, either as to who could exercise the Power of
Appointment or not understanding or being ad idem with his
siblings on the equal entitlement, he did not convey this to
his solicitor or siblings. In short, he was prepared to take
a benefit and if they proceeded on a false assumption, that
was to be their own misfortune.
Contracts or family arrangements are amongst the few to which
the doctrine of uberrimae fidei applies, (Gordon -v- Gordon
(1816), 3 Swanst 400). In my judgment, there was either a
lack of good faith on the part of the Plaintiff at the time
or the Plaintiff is confused now in 2006 as to his belief in
1980 as opposed to a belief at first articulated in 2002
after his uncles’s death. I would in charity prefer to give
him the benefit of having acted in good faith but fault his
memory as unreliable.
I accept the evidence of the Defendants as consistent and
reliable on this transaction. Regretfully, this relevant
transaction, as to its being consistent or inconsistent with
the positions taken up in correspondence in 2002, only
emerged in the replying affidavit of the Defendants. The
land involved in the 1980 transaction was registered land and
there were delays encountered in registration. The Plaintiff
reported his solicitor to the Incorporated Law Society of
Ireland but the administrative or bureaucratic difficulties,
I am satisfied, caused the delay and not the solicitor.
However, in that context, notwithstanding that Ms. Kelly in
evidence admitted to having on occasions limited knowledge of
the family affairs, it seems to me, having been reported to
the Incorporated Law Society, she would have been most likely
to check all dealings with this family with persons in her
office.
In 1987, Martin Butler Senior sought the consent of all his
nephews and his niece to the sale of a site on lands in which
he had a life interest to one Dermot Kavanagh. The Plaintiff
agreed to the sale. However, Thomas Butler, the Defendant,
gave oral evidence that his mother said that she would disown
him if he agreed to the sale. In the events, none of the
Defendants would consent and the proposed sale did not
proceed. It is averred for the Defendants that consequent to
that refusal, relations between the Defendants and their
uncle deteriorated to a very significant extent but the
Plaintiff was not subject to the same degree of change of
deterioration in relations.
In 1992, the wife of Thomas Butler Senior and mother to the
parties of this, Mrs. Bridget Butler, was suffering from a
terminal illness. She had made a will leaving her dwelling
house to her daughter, Mary, lands to Thomas, (the Defendant)
and Tim (the Defendant) and the residue, (monies and
investments), to the Plaintiff. On 14th January 1992, a deed
of family arrangement was entered into whereby all parties
agreed that the cash monies would be applied to the hospital
maintenance of the mother and that those who had a real
prospect of inheriting the fixed assets (lands and premises)
would agree to these being sold on the mother’s death and all
four children would share in the mother’s estate as tenants
in common in equal shares. The mother died on 22nd January
1992, approximately just a week later.
Again, while this has no bearing on the construction of the
will, it is consistent with the family acting on the basis of
tenants in common in equal shares. Again, this document and
the facts surrounding it only came to light in the Defendants
referring to it in the replying affidavits. In giving
evidence on the first day of the trial, the Plaintiff
acknowledged that the arrangement was of benefit to him as he
would receive one quarter of the entire estate rather than
just the residue. On the second day of the trial on
re-examination in relation to this arrangement, he said: “I
saw no advantage in it.”
The administration of the estate of the mother, Bridget
Butler, Deceased, was carried out with commendable
promptitude, the Grant of Probate having issued on the 14th
July 1992, distribution and solicitors’ bills, etc., being
signed off for on 21st December 1992. A letter of that date
was written to both the Plaintiff and to his sister (who was
the executrix of Bridget Butler Deceased). The letter to the
executrix does refer to the unresolved matter arising from
the Deceased’s will. No action was taken at that time.
However, it is important to bear in mind that only a short
while (some five years) previously, the uncle appears to have
fallen out with his nephews and niece (i.e. the Defendant
nephews and niece) over the sale of the land to which they
had refused.
On 7th December 1995, Martin Butler Senior, accompanied by
his wife Maureen, attended on Mr. Martin G. Lawlor,
Solicitor, for the purpose of making a will. Mr. Lawlor in
his affidavit notes that his client wished to appoint the
farm and public house to his nephew, Martin Butler, the
Plaintiff, subject to a right of residence in favour of his
wife, Maureen, in such property “for her own use and benefit
absolutely.” He further averred that:
“(vii) I say that in the course of the
discussions regarding this matter that
Martin Butler explained to me that the
willwas the subject matter of a trust.
He also explained to me that the trust
had been created by his late father, Tim
Butler, who had died in May 1963.”
In fact, no trust was created in the will of the Deceased.
“(Viii) I say that there was some
discussion at the time concerning the
Power of Appointment given to Martin
Butler by his father. I did make a note
that for the purpose of advising him
fully regarding the situation, that I
would need a copy of the Grant of Probate
which was subsequently obtained and I say
that having obtained a copy of the Grant
of Probate that the will was duly
executed on 11th April 1996.”
Martin Butler Senior purported in his will to exercise the
Power of Appointment contained in the will of the Deceased.
Martin Butler Senior died on 24th May 2002 and probate of his
will issued to his executrix, Catherine Kavanagh, on 8th July
2003.
There is dispute as to what happened after the death of
Martin Butler Senior. The Plaintiff averred in paragraph 11
of his affidavit sworn on 8th July 2005 that there was a
meeting “immediately after the funeral.” In oral evidence,
he said that the meeting took place before the funeral. In
his affidavit, the Plaintiff avers that there was pressure
put on him to sign an agreement that all four siblings shared
the life estate of the uncle equally. He said he felt
bullied. The Defendant, Thomas, put the meeting as of 26th
May 2002 in paragraph 12 of the affidavit of on 8th April
2005, which accords with a letter of 11th June 2002 addressed
to the Defendant by Kelly Colfer Son & Poyntz being part of
Exhibit “F” in the Plaintiff’s affidavit of 19th November
2004. The letter inter alia states:
2005.
“We are instructed that on the 26th
May 2002, at a meeting of yourself and
your three siblings, it was agreed by all
four of you that all of the property at
Ballynunnery and the property at
Raheenduff would vest in all four of you
(Mary Howlin, Timothy Butler, Thomas
Butler and Martin Butler) as tenants in
common in equal shares.”
The reply to that letter is 17th June 2002 and while it deals
with the purported exercise of the power,
it does not challenge the assertion of the agreement of 26th
May 2002.
I can accept that there may have been an insistence by one or
all of the Defendants at the time of funeral of their uncle,
Martin, to establish agreement on where they stood on the
distribution of their grandfather’s estate now that their
uncle had died. The Defendant, Tim, lived in Cork and this
was an opportunity to agree and resolve how things would
proceed. In all the circumstances, it was an understandable
concern. It was not put to the Defendant, Thomas, in
cross-examination, that the Plaintiff was bullied or that,
subsequent to 30th May 2002, that the Plaintiff was abused or
intimidated in any way by the Defendants as alleged in
paragraph 12 of the Plaintiff’s affidavit sworn on 8th July
2005 and I am satisfied that that did not occur.
If the Defendant requested a written agreement, or any of the
Defendants requested a written agreement, of which there was
no firm evidence, as opposed to a verbal agreement, it would
be understandable in the light of events that were later to
emerge.
In the Plaintiff’s affidavit of 8th July 2005, paragraph (3),
he avers inter alia as follows:
“At all times from date of death of my
father, Thomas Butler Senior, to the date
of swearing hereof, my understanding was
that the will of the Deceased, Timothy
Butler Senior, was such as to grant a
Power of Appointment to Martin Butler
Senior. It was never my understanding
that this Power of Appointment was vested
in my father, Thomas Butler Senior.”
The Plaintiff’s oral evidence was that he had a doubt as to
who had the Power of Appointment and specifically sought to
ascribe that doubt to the doubt referred to in Clause D on
the second page of the agreement of 18th April 1980. This
inconsistency again points to the reliability of the evidence
of the Plaintiff.
When the Plaintiff was asked in cross-examination about his
knowledge of the contents of his uncle’s will as at the
meeting on 26th May 2002, the Plaintiff evaded the question
and said that the first time he saw the will was after that
date, i.e. after 26th May 2002. That answer was consistent
with his affidavit evidence but not an answer to the question
put to him. On the Plaintiff’s own oral and affidavit
evidence, he was closer to his uncle, Martin Butler Senior,
than any of his siblings and while it is possible that he did
not know that his uncle purportedly exercised the Power of
Appointment in his own favour in the period 1995 to 2002, I
found the evidence and the giving of it unconvincing. So far
as the Defendants were concerned, there was a common
understanding and agreement (as there was in 1980 and 1992)
that all shared as tenants in common in equal shares. The
correspondence in mid 2002 highlighted the difference between
the Plaintiff and the Defendants. In my judgment, the issues
now before the Court should have been brought to the
attention of the Court at that time. I am satisfied and find
as an undisputed fact that the Defendants were shocked in mid
June 2002 to find that what they had all understood as agreed
in late May was not being accepted by the Plaintiff.
In September 2002 an ad-interim transfer of the licence
attached to the public house was sought and obtained by the
Defendant in his proposed capacity as personal representative
of the Deceased. Consequent on court application, draft
accounts in respect of the licensed premises for the period
17th March 2002 to 31st May 2003 were given to the
Defendants. There were representations made at the annual
licensing session of the District Court which were
effectively withdrawn in the interests of preserving the
licence. These, it appears, related to the capacity in which
the Plaintiff sought the transfer of the licence to him,
because as of 24th September 2003, he was the legal personal
representative of the Deceased. In that capacity, he held the
estate as trustee for the persons by law entitled thereto.
All the foregoing can have no bearing on the construction of
the will of the Deceased. The events, however, are wholly
consistent with the understanding and agreements of the
parties, including the Plaintiff, up to and including 26th
May 2002. I am satisfied that seeking to operate on the
primitive shibboleth ‘possession is nine points of the law’
is not the underlying legal principle applicable to
arrangements for the settlement of family property.
While appreciating the emotional distress of the litigants
and the anxieties of giving oral evidence, I am nonetheless
satisfied that the equivocation and evasive evidence of the
Plaintiff testified to me the unreliability of his evidence
of events. I note this with regret in a case of a family
with differences and I have erred, I hope, with charity on
the impression conveyed to me.
THE LAW AND THE LEGAL SUBMISSIONS:
Section 90 of the Succession Act 1965 provides for the
admissibility of extrinsic evidence to construe a will. The
Supreme Court in Rowe -v- Law [1978] IR 55 and In re Collins
O’Connell -V- The Governor and Company of the Bank of
Ireland, [1998] 2 IR 596, it was held that the Section
requires two conditions for admissibility:
(i) There must be an ambiguity or contradiction on the face
of the will, and
(ii) It must be necessary to ascertain the intention of the
testator.
Unfortunately, the will was made 50 years ago and there is no
extrinsic evidence available. There is contextual factual
information available about the state of the families and the
members in the families.
Section 99 of the Succession Act 1965 provides that there if
there are two constructions open to a Court, one of which
renders a clause in a will operative and another which
renders a clause inoperative, the one which renders the
clause operative shall apply. While accepting that the point
taken by Ms. Laverty and also by Ms. Stack in submission is
correct, that the Succession Act was not operable as of the
date of the Deceased’s death, nonetheless, the principle
enshrined in Section 99 is merely an expression of long
settled law. Accordingly, Section 99 qua Section 99 has
specific but limited application to the proceedings. It has
no application to the identity of the donee of the power
because whichever of the two possible donees is the correct
one, the clause will be operative. If the Court is to chose
Thomas Butler Senior as the correct donee, then, as he did
not exercise the power and all of his children take in equal
shares (as contended for by the Defendants) and the clause of
the will is not rendered inoperative. If the Court were to
chose Martin Butler Senior, the clause is equally operative.
This is not a case where one or other construction of who the
donee was intended to be, would render the clause operative
or inoperative; it would be operative in both eventualities
but with different results.
In my judgment, the base level intention of the testator was
that the objects of the power were to take equally.
In this context, the Court can have regard to
Section 99, or, more particularly, the underlying settled law
in it and save the clause and give effect to the intention of
the Deceased by providing that the property passes to the
children of Thomas Butler equally (which, of course, includes
the Plaintiff).
A. The Construction of a Will.
The Supreme Court in the case of Curtin -v- O’Mahony [1991] 2
I.R. 566 stated that the task of a court in constructing a
will was to give effect to the intention of the testator or
‘to place oneself in the armchair of the testator.’ The
Court in Curtin’s case prevented a substantial partial
intestacy by rectifying a poorly drafted will. The testator
in that case had provided that if he sold his dwelling house
(which was bequeathed to a niece) during his lifetime he
would divide his estate in a certain percentage (which when
added up amounted to 100.5%). He did not sell his house. He
had a substantial residue. Because the bequest of the
residue was contingent on the sale of his house, on the face
of things there would be an intestacy in relation to the
residue and Lardner J. so held in the High Court. The
Supreme Court held that this could not have been the
intention of the meticulous testator and so rectified the
will to give effect to the residuary clause.
While such a situation does not arise here, in this case the
intention of the testator is said be to unclear as to who the
donee of the power was to be, but the object of the
testator’s bounty is clear, i.e. the children of Thomas
Butler Senior (the Plaintiff and the Defendants). If the
Court was in a position to identify the donee of the power,
whichever person it chooses, there would be no failure or
partial intestacy in respect of the estate of Timothy Butler
Senior. In my judgment, the intention of the testator is
clear and can be given effect to, even if the donee of the
power cannot be identified with certainty.
In his submissions for the Defendants Mr. Spierin referred to
the case of Howell -v- Howell [1992] 1 IR 290 in which Ms.
Justice Carroll approved the guidelines of Lowry C.J. in
Heron -v- Ulster Bank [1974] NI 44 wherein he sets out at
page 52 of the judgement guidelines to assist in the
construction of a will.
This approach was also applied by Macken J. in the Bank of
Ireland -v- Gaynor & Others (Unreported High Court 29th June
1999).
B The Guidelines adumbrated by Lowry L.C.J. were as follows:-
“1. Read the immediately relevant portion of the will as a
piece of English and decide if possible what it means.
2. Look at the other material parts of the will and see
whether they tend to confirm the apparently plain meaning of
the immediately relevant portion or whether they suggest the
need for modification in order to make harmonious sense of
the whole or, alternatively, whether an ambiguity in the
immediately relevant portion can be resolved.
3. If ambiguity persists, have regard to the scheme of the
will and consider what the testator was trying to do.
4. One may at this stage have resort to rules of
construction, where applicable, and aids such as the
presumption of early vesting and the presumption against
intestacy and in favour of equality.
5. Then see whether any rule of law prevents a particular
interpretation from being adopted.
6. Finally, and I suggest not until the disputed passage has
been exhaustively studied, one may get help from the opinions
of other Courts and Judges on similar words, various binding
precedents, since it has been well said that “no will has a
twin brother” (per Warner J. in the matter of King 200 N.Y.
189, 192 [1910]), but more often as example (sometimes of the
highest authority) of how judicial minds nurtured in the same
discipline have interpreted words in similar contexts.”
Guideline 1:-
This requires the Court to have regard to the immediately
relevant portion of the will. In the case of Howell -v-
Howell, the Court concentrated on the very specific part of
the will that had given rise to the difficulty. In the
Howell case, the clause being construed was:
“I devise and bequeath my farm of land in
the townlands of Drumpeak, Corinshigo,
together with the furniture and machinery
thereon, to my brother Joseph. I give,
devise and bequeath all my stock and any
other assets that I may have to my brother
Richard.”
The Court considered that the immediately relevant portion of
the will was the words “any other assets I may have.”
It was submitted by Mr. Spierin in the instant case,
therefore, that the immediately relevant portion of the will
of the Deceased is not the entirety of the clause quoted in
the Special Summons but is that portion which actually
confers the special power, i.e.:-
“…to such children of my said son Thomas
as he shall, by Deed Or Will, appoint and
in default of appointment to all of the
children of the said Thomas Butler as
tenants in common in equal shares.”
It was submitted that there is no ambiguity in the immediate
relevant portion. If one considers same as a piece of
English, it is clear, and it was submitted by Mr. Spierin
that the power was conferred on Thomas Butler, Senior.
On the other hand, I have had the benefit of the evidence
tendered on behalf of the Plaintiff by Prof. Nicholas Daly of
UCD, who deals with the matter on the basis of the
information given to him on the face of the affidavit as a
piece of English. I will return to this matter in due
course, suffice it to say that the factual context under
which the Deceased made his will does not appear to have been
transmitted to Prof. Daly, who actually simply was asked to
carry out an exercise and quite specifically addressed his
mind to it. Accordingly, the position about Thomas Butler
Senior and his family and Martin Butler Senior and his family
do not appear to have been any part of the consideration of
the Professor.
Accordingly, if the Court considers that the immediately
relevant portion of the will of Timothy Butler Senior is the
entirety of the clause set out in the summons that it is not
possible to ascertain the intention of the testator as to
identify the donee of the power by considering the entire
clause as a piece of English, but by their repeated use of
the pronoun “he”, the testator could have been referring to
either of his sons.
Guideline 2:-
This suggests that the Court have regard to other material
parts of the will only if there is an inability to find
meaning of the will in the immediately relevant part of the
will in order to make “harmonious sense” of the whole. It
was submitted by the Defendants that there is no disharmony
in identifying Thomas Butler Senior as the donee of the
power. This was vigorously challenged by the Plaintiff. It
was submitted that it would be most harmonious if the parent
of the objects of the power should exercise the power
because, as was referred to in another case under the
Succession Act by Kearns J. In re ABC Deceased XC & Others
-v- R.T. & Others, [2003] 2 IR 250): ‘Parents must be
presumed to know their children better than anyone else.’
Counsel for the Plaintiff took issue with reference to this
authority as being applicable in a particular legal context
only. However, it seems to me as a matter of ordinary common
sense that the person best placed to know their own children
is generally the parent of that child rather than their
uncle. Equally so, though it did not happen, immediately
after the Deceased died Thomas Butler Senior could have by
deed made an appointment. Unfortunately, his untimely death
did not bring that about and there may also have been
differences between himself and his brother and matters were
left in abeyance.
If one then has regard to Guideline 3 and to the scheme of
the will as a whole, to decide what the testator was trying
to do, it seems to me that he was ultimately trying to
benefit the children of Thomas Butler Senior. A Court in
seeking to resolve the apparent ambiguity, if such exists, in
favour of Thomas Butler, being the person with the power, it
seems to me that the parent of the objects of the power would
be the person best placed to decide how the power was to be
exercised. It fits in with what the testator in my judgement
was trying to do and the testator would not have anticipated
the untimely death of his son, Thomas Butler Senior.
The submission that the donee of the power was to be Martin
Butler Senior because, in the events that have happened, the
purported exercise by Martin Butler Senior in favour of the
Plaintiff has brought about a position where the nephew
closest to Martin Butler Senior would be the person most
likely to have been appointed by him and would look after
Martin Butler Senior’s widow. This is, however, to proceed
on the basis of the argument post hoc ergo propter hoc. The
Deceased was a farmer, not a clairvoyant, and it is a matter
of pure conjecture that matters have emerged as they have.
In my judgement, the determination that Thomas Butler was the
intended donee of the power accords with what the entire
family believe to be the case as did their solicitor over a
long period of time. I think it unnecessary to retrace here
what I have said earlier about the general factual background
of affairs between the death of the Deceased and the
intimation in June 2002 of the understanding of the
Plaintiff. In my judgement, the construction which
identifies Thomas as the donee of the power does no violence
to the intention of the testator. Further, it accords with
Guideline 4, which refers to the application of the
presumption of equality and against intestacy. I cannot with
any certainty say that the Deceased intended to confer the
power on Martin Butler Senior and there is nothing in the
immediately relevant portion of his will or in the scheme as
a whole that would tend to resolve the suggested ambiguity in
his favour. I would hold that the objects of the power have
taken equally. By severing the portion of the clause which
contains the alleged ambiguity and bracketing the expression
“(such of the children of my said son, Thomas Butler, as he
shall, by Deed Or Will appoint, and in default of appointment
to) all of my children of my said son Thomas Butler as
tenants in common in equal shares” the same result ensues the
Court is rendering the bequest operative and in accordance
with settled law (as expressed in the Succession Act 1965) in
giving effect to the intention of the testator in accordance
with Curtin -v- O’Mahony earlier referred to.
C. Uncertainty In Powers of Appointment
In my judgement, there is no uncertainty as to who had the
Power of Appointment, it was Thomas Butler Senior; but even
if there was an uncertainty, I would approach the matter in
this way. There are some passages in the textbooks and indeed
in some of the older case law which are of assistance in this
regard. I have been referred to certain passages in both
Delaney Equity and the Law of Trusts in Ireland, 3rd ed., at
pages 85 to 88, and also Farwell on Powers, 3rd ed. (1916) at
page 132 et al.
In the case of Earl of Bandon -v- Moreland [1910]
1 IR 220, the position was that a power was granted under a
settlement to ‘A. and his heirs and assigns’ to ‘select’ part
of the settled lands which were thereupon conveyed to ‘A.,
and his heirs or assigns’ forever, or as he or they shall
direct.’ It was held that, as A. was a person ascertained
within the period, he might validly exercise the power and
that, though the power was bad so far as given to his ‘heirs
or assigns’ since they were donees not necessarily
ascertainable within the period, the invalid portion was
severable. The words ‘heirs or assigns’ could not, in the
context in which they were used have effect as words of
limitation, since a power was not a hereditament. The words
“heirs and assigns” is dealt with specifically in the report
at page 288 in the judgment of Pimm J.. In my judgment, in
the will of the Deceased, after the words “I give, devise and
bequeath same to my son Martin Butler for and during the term
of his natural life”, the words “and after his death” are
superfluous and tautologous because at the end of his natural
life, death was the inevitable and it was quite unnecessary
to conjunct “and after his death to”, and accordingly in my
judgment, the immediately relevant clause is that identified
by Mr. Spierin.
D. The Power of Appointment purported to be exercised by
Martin Butler Senior
Martin Butler Senior, by his will, appears to have attempted
to exercise the Power of Appointment in favour of the
Plaintiff. If he honestly believed he had a power by deed or
will to so appoint, it is strange that the difficulties in
1980 arose at all, on the basis that he could have carried
out his wishes at that time without any question of waiting
for a will and avoided, on that version of affairs, the
apparently unnecessary joinder in the deed of 1980 of the
Defendants in this case. The position in this case is that
the Deceased, the grandfather, left to Thomas Butler Senior
to deal with matters as he saw fit as between his own
children rather than confer on the childless brother, Martin
Senior, the entitlement to distribute amongst the siblings
that have appeared before me. The purported exercise, though
questioned by Mr. Spierin, had as its answer, if it were a
valid exercise, the reply from Ms. Stack, that it accorded
with what was laid out in Williams 6th ed. 1987 at page 414
(which sets out the essentials for the exercise of a special
power by will) viz:
“To exercise a special power, there must
be either (1) a reference to the power or
(2) a reference to the property the
subject of the power or (3) an intention
otherwise expressed in the will to
exercise the power.”
Now while undoubtedly there is an error in the information
given to the solicitor, Mr. Lawlor, because the property was
not subject to a trust, that, in my view, is a serious error,
but in the circumstances of this case, it is nihil ad rem
because I am satisfied that the donee of the power was Thomas
Butler Senior.
That determination effectively should resolve the matters in
issue between the parties.
E. ESTOPPEL:
However, there remains outstanding the question of estoppel,
and I embark upon a determination of this with reluctance and
merely for completion. I accept the submissions of the
Plaintiff that essentially that it has nothing to do with the
construction of the will. However, if I were wrong in either
my approach to the application of the guidelines, then it
might fall to be determined. Accordingly it would leave a
situation in which the exercise by the power or purported
exercise by Martin Butler Senior would be ultra vires and,
accordingly, it is necessary to proceed to consider estoppel.
Mindful that it is a family dispute I do not want to say any
more than is necessary and I err on the side of charity. The
evidence of the parties is in conflict on the point as to the
entitlement of Thomas Butler Senior to appoint, the case of
the Defendants was that it was always the belief of the
Plaintiff and the Defendants that the Power of Appointment
had been conferred on their father, Thomas Butler Senior. It
was only after the death of Michael Butler Senior when the
Plaintiff had, as he perceived, I presume, the benefit of the
purported exercise in his favour that he contended that his
uncle, Martin Butler Senior, had the Power of Appointment.
This might have been viewed by the Defendants as disingenuous
or opportunistic or otherwise. I am content to merely follow
the findings of fact I have made in the judgment without
attaching such expressions (however justified) to his
position.
The Defendants, amongst themselves, throughout the entire
period until they receive the correspondence in mid 2002,
understood that the Plaintiff was ad idem with them and that
their father was the donee of the power. It is perhaps nihil
ad rem and perhaps merely looking with the benefit of
hindsight that they would have acted differently if the
Plaintiff had said to them, or to his solicitor, Ms. Kelly,
that he believed that his uncle, Martin Butler, at all times
was the donee of the power. They conferred benefit both in
the document of 1980 and 1992 to which I have referred and he
was content to accept the benefits. If he did know, he
refrained from conveying to them frankly what his
understanding and agreement was. However, notwithstanding
that Ms. Kelly did say that she did not deal with all and
every last detail of all the transactions of the family over
the period in which she was dealing with them, she did act as
the family solicitor over a long period. She had no axe to
grind. She was a professional person, independent, and her
understanding from dealing with the family and each of its
members (and she dealt with them, including the Plaintiff as
an individual client) was that at all times the parties
understood that Thomas Butler Senior was the donee of the
power. Now the fact that the finance house expressed the
doubt in 1980 (and that the Defendants signed the document)
that is the only doubt that was ever conveyed to the
Defendants or to the solicitor who was dealing with the
matter. Whatever views the building society or lending
institution had are nihil ad rem. They were laid to rest by
everyone joining in the deed. It seems to me that except
from family loyalty and filial disposition towards their
mother in 1992 that the Defendants in these proceedings, who
had specific assets conferred to them by the will of their
mother, had no reason to relinquish that certainty and throw
the entire lot into a mixed fund with the Plaintiff in the
absence of a belief that as they were sharing equally with
him, so also he would with them in their grandfather’s
estate. The property comprised in the mother’s estate has
been let and the Plaintiff has always been paid and has
accepted his share of the rent, again another indicator.
These do not, however, go to the determination of the
construction of the will but rather to the conduct of the
parties. It seems to me, accordingly, that the Defendants
acted to their detriment in the certain belief that their
brother, the Plaintiff, accepted that the property comprised
in the estate of their grandfather would pass equally to all
of them. They conferred the benefit on their brother from
the estate of their mother, to which he was not entitled and
they did so in the belief that the brother accepted, as
represented to them, that the estate of Timothy Butler,
Deceased, would pass to all of them equally. The ingredients
of an estoppel are present. I do, however, accept that the
certainty of fact does create a difficulty but if that
difficulty of certainty of fact arises, it arises from either
the Plaintiff in bad faith not disclosing what he says in one
of his affidavits he believes and believed throughout that
Martin Butler Senior was the donee or that he did not so
believe and was quite happy to go along with them, so long as
benefit was available to him, but when it appeared that the
scales had tilted in his favour by the purported exercise by
his uncle, he was prepared to stand and take advantage of
that position. It seems to me that (1) there was a belief
fostered and encouraged by the Plaintiff, which belief is
independently confirmed by Ms. Kelly.
(2) There were detrimental acts on the part of his siblings
in relation to the estate of their mother predicated on the
basis that the estate of Timothy Butler would pass equally
and, indeed, in the case of the 1980 document. Whatever
benefit in 1980 Thomas received by way of a right-of-way and
Martin receiving the site with good title, the two other
siblings had nothing whatsoever to gain by appending their
name or agreeing to the arrangement. They had no benefit in
any shape whatsoever.
Furthermore there was an acceptance also by the Plaintiff of
the benefit of the estate from his mother and this is a
continued acceptance in the form of rental income, albeit
directed through the solicitors, and I can understand that,
given the fact that matters became disputatious as between
the Plaintiff and the Defendants.
Corrigan -v- Corrigan & Anor
[2007] IEHC 367 (02 November 2007
JUDGMENT of Mr. Justice Brian McGovern delivered on 2nd day of November, 2007
1. Christopher Corrigan (“the deceased”) died on the 5th day of March 2000. He was a widower and left surviving him five children. He made his last will and testament on the 23rd September, 1997. The will was drawn up by a solicitor who is now deceased. In his will he appointed the plaintiff and the first and second named defendants as executors.
2. These proceedings were brought by the plaintiff as executor seeking a construction of a clause in the will. A grant of probate issued to the plaintiff and the second named defendant from the District Probate Registry of Mullingar on 10th January, 2002. By order of the High Court dated 23rd January, 2006 the second named defendant was given liberty to renounce his rights to act as an executor and he did so on the 30th January, 2006. The first named defendant renounced his position as executor on the 2nd November, 2001 prior to the grant of probate.
3. The first named defendant is joined in these proceedings as a person who is named as a beneficiary in the will on foot of a clause that requires construction by the court. The second named defendant is joined in the proceedings as the person entitled to the entirety of the residuary estate.
4. Difficulties have arisen in construing clause 1 of the will which states as follows:
“1. I have 21 acres of land in Folio 13658 Co. Westmeath and I have been advised that said land or part thereof is zoned for residential and/or industrial development. I direct my executors to hold the said lands upon the following trusts:
(a) To allow my son Sean to hold and enjoy the profits of the land for his own benefit until there is acquisitions of my lands for the purposes mentioned above. In such event the net proceeds of the sale of my land shall be divided equally amongst all my children and any section of the farm not so acquired shall become the absolute property of my son Sean.”
5. At the time of the execution of the will the lands referred to in the bequest were zoned for agricultural use. In April 2005 some of these lands were rezoned for use as a special district for business and enterprise development by Westmeath County Council.
6. The plaintiff as personal representative seeks the assistance of the court in administering the Estate..
7. These proceedings have been commenced by special summons in which the plaintiff seeks the answers to a number of questions which I will answer later in this judgment.
8. The bequest which I am to construe (“the bequest”) is in clause 1 in that part of the will in which the testator disposes of his property. Clause 1 is divided into two parts. The first part is a preamble in which the testator states that he has 21 statute acres of land in Folio 13658 Co. Westmeath and that he has been advised “…that the said land of part thereof is zoned for residential and/or industrial development”. The second part of the clause comprises the bequest to Sean in the following terms:
“to allow my son Sean to hold and enjoy the profits of the land for his own benefit until there is acquisition of my lands for the purposes mentioned above. In such event, the net proceeds of the sale of my land shall be divided equally amongst all my children and any section of the farm not so acquired shall become the absolute property of my son Sean.”
9. The bequest only makes sense in the light of the first part of the clause and seems to be predicated on it. This can clearly be seen from the words “… until there is acquisition of my lands for the purposes mentioned above” (my highlights). On the face of it, it appears that the intention of the testator was that first named defendant should hold and enjoy the profits of the lands until they were acquired for the development purposes which are stated to be residential and/or industrial. This would appear from the use of the words “to allow my son Sean to hold and enjoy the profits of the lands for his own benefit until…” (my highlights). In other words the testator expected the lands or part of them to be acquired for a value that would reflect the fact that they were zoned for residential and/or industrial development in that event the proceeds of sale would be divided equally among his children and first named defendant would hold any part of the lands not so acquired.
10. Interpretation of the will
It is clear from the evidence that the testator acted under a mistake of fact when he declared that “… the said land or parts thereof is zoned for residential and/or industrial development”. He may well have been advised that that was case but the advice was wrong and he was therefore acting under a mistake of fact. Even now, after the rezoning of the land they have not been zoned for residential or industrial development but rather for use as a special district for business and enterprise development.
11. In interpreting the will the court must have regard to the relevant provisions of the Succession Act, 1965.
12. Section 90 provides that “extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will”. In Rowe v. Law [1978] I.R. 55 and O’Connell v. Bank of Ireland [1998] 2 I.R. the Supreme Court held that s. 90 must be strictly interpreted. In Rowe v. Law, Henchy J. stated on p. 72:
“I read s. 90 as allowing extrinsic evidence to be received if it meets the double requirement of
(a) showing the intention of the testator, and
(b) assisting in the construction of , or explaining any contradiction in, a will.”
At p. 73 he states:
“…s. 90 allows extrinsic evidence of the testator’s intention to be used by a court of construction only where there is a legitimate dispute as to the meaning or effect of the language used in the will. In such a case… it allows the extrinsic evidence to be drawn on so as to give the unclear or contradictory words in the will a meaning which accords with the testator’s intention as thus ascertained. The section does not empower the Court to rewrite the will in whole or in part.”
13. I am satisfied that the clause 1 of the bequest contains a lack of clarity and that there is ambiguity contained therein. I am also satisfied that the admission of extrinsic evidence is permissible in this case. There is extrinsic evidence to be found in notes taken by the testator’s solicitor upon taking instructions for the drafting of the will. I will look at these notes in some detail later in this judgment.
14. Section 91 of the Succession Act provides:
“Unless a contrary intention appears from the will, any estate to comprise or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in any residuary devise or bequest as the case may be, contained in the will.”
15. Section 94 provides:
“Where real estate is devised to a person (including a trustee or executor) without any words of limitation, the devise shall be construed to pass the whole estate or interest which the testator had power to dispose of by will in the real estate, unless a contrary intention appears from a will.”
16. Section 99 provides:
“If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.”
General principles of construction
17. In considering the authorities on this subject it seems that the following principles apply:-
(i) The court will strive as far as it can to give effect to the intention of the testator insofar as this can ascertained from the will. In limited circumstances the court is permitted to rectify a will to safe it from bad drafting. See Curtin v. O’Mahony [1991] 2 I.R. 566.
(ii) The court considers the will by placing itself in the position of the testator sitting in his armchair shortly before his death to see what he was setting out to achieve.
(iii) As a general rule the court will give legal or technical words used in a will their legal or technical meaning.
(iv) The guidelines suggested by Lowry L.C.J. in Heron v. Ulster Bank Limited [1974] N.I. 44 at 52 were approved and adopted by Carroll J. in Howell v. Howell [1992] 1 I.R. 290. These are as follows:-
1. Read the immediate relevant portion of the will as a piece of English and decide, if possible, what it means.
2. Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole, or alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
3. If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
4. One may at this stage have resort to rules of construction, where applicable, and aids, such as the presumption of early vesting and the presumption against intestacy and in favour of equality.
5. Then see whether any rule of law prevents a particular interpretation from being adopted.
6. Finally, and, I suggest, not until the disputed passage has been exhaustibly studied, one may get help from the opinions of other courts and judges on similar words, rarely as binding precedents, since it has be well said that “no will has a twin brother” (per Werner J. in Matter of King [1910] 200 N.Y. 189, 192), but more often as examples, sometimes of the highest authority) of how judicial minds nurtured in the same discipline have interpreted words in similar context.”
Construing the ‘conditions’
18. The court has to decide whether the statement in clause 1 of the bequest is a declaration of the testator’s belief (which was erroneous) or whether it constitutes a condition attaching to the bequest. If it is a condition then the court has to decide if it is a condition precedent or a condition subsequent. Counsel for the plaintiff adopts a neutral position. Counsel for the first named defendant argues that it is clearly a condition subsequent and counsel for the second named defendant argues that it is a condition precedent.
19. I take the view that if it is a condition it must be a condition subsequent. There is a presumption of early vesting and it is clear that, if the words at the beginning of the bequest are a condition, that the first named defendant is to hold and enjoy the profits of the lands until such time as the condition is fulfilled, namely, the lands are acquired for the purposes of residential and/or industrial development. There are a number of cases which are authorities for the proposition that where a condition attaches to a bequest the court should approach the condition prima facie as a condition subsequent unless its construction as a condition precedent is unavoidable. (See McGowan v. Kelly [2007] IEHC 228 Mackessey v. Fitzgibbon [1993] I.R. 520 and Re Porter [1995] N.I. 157). If a condition subsequent is found to be void the beneficiary takes the bequest freed from the condition. So in this case if clause one of the bequest is a condition subsequent and is found to be void for uncertainty or incapable of taking effect, the first named defendant would take the bequest free from the condition. (See judgment of Laffoy J. in McGowan v. Kelly [2007] IEHC 228 and judgment of Gavan Duffy P. in Bourke and O’Reilly v. Bourke and Quale [1951] I.R. 216 at 223).
What is the effect of the factual error in the belief of the testator?
20 A gift made upon a mistake of fact cannot be cut down or altered to suit the supposed facts. See Theobald on Wills, 16th Ed., para. 53.36. Correction of mistakes by the court can only arise where the words used do not accurately reflect what the testator intended. A court can only supply or omit words in exceptional circumstances and with the greatest caution. If the gift to the first named defendant is made upon a mistake of fact then the entire bequest would fail and the bequest would fall into the residuary estate by virtue of s. 91 of the Succession Act
.
Extrinsic evidence
21 In clause 1 of the bequest there are a number of words which give rise to difficulty. In the first place there is the factual inaccuracy concerning the zoning of the lands. Then there is the use of the words “…until there is acquisition of my lands for the purposes mentioned of above” and a further reference to “…any section of the farm not so acquired….” Counsel for the plaintiff argues that the use of these words tends to suggest that the testator had in mind the compulsory acquisition of land rather than a sale in the ordinary course of events. Looking at the extrinsic evidence one gets some general idea of the testator wishes. The hand written notes of the testator’s solicitor (“now deceased”) show that he received instructions at 11.00 am on the 26th August, 1997. In the course of those instructions he sets out the name and status of the testator, namely, that he is a widower, and then he sets out names and status of the children. He goes on to set out the assets and the executors. When it comes to the heading “dispositions” his notes read as follows: “farm to Sean, but if any is sold for residential or commercial purposes then it’s to be divided between all children equally. Sean can keep what is not required for residential purposes, all five to share in such sale money”. Two things are interesting about the notes. In the first place they make reference to what will happen if the property is “sold”. The words “acquired” or “acquisition” are not used. Secondly, the notes refer to what will happen if any of the property is sold “for residential or commercial purposes”. In the bequest in the actual or final will the words “… zoned for residential and/or industrial development” are used.
22. In the draft will the following words appear:
“I make dispositions of my property –
1. I have about 21 acres in Folio 13658 Co. Westmeath and am aware that it is or will be zoned for residential and/or industrial development…”
In the instructions, the solicitor records the deceased assets and when referring to the farm says “farm; zoned for residential”.
23. When the will was drawn up the word ‘is’ appears in connection with the zoning although it is coupled with the words “… I have been advised that …”. So the position has moved from a situation where the assets were stated to include a farm which is “zoned for residential” to a draft will which says that the land “is or will be zoned for residential and/or industrial development…” to a final position where the testator says in his well that he has been advised that the land or part thereof is zoned for residential and/or industrial development. All in all the position concerning the land is anything but clear. What does seem to emerge from the instructions and the bequest in the will is that it was the intention of the testator to let his son Sean hold the land if it remained in agricultural use but that if the land or part thereof was rezoned and sold or acquired at a significantly greater value than agricultural land then all his children should share in that windfall and Sean would retain such part of the land (if any) as was not rezoned. That is as much as can be said from looking at the will and the extrinsic evidence to be found in the solicitor’s notes.
24. But it seems to me that a great deal of uncertainty remains. In the first place it is not clear what was the zoning of the land as understood by the testator. The notes suggest that he instructed his solicitor that the farm was zoned for residential use whereas in the will he says that he has been “advised” that the lands are zoned for residential and/or industrial development. But it is now clear that the lands were not zoned as understood by the testator or as “advised” to the testator and although part of the land has been rezoned since his death it has not been zoned for residential or industrial development. In April 2005 part of the deceased land was rezoned as a special district for business and enterprise development and part was zoned for open space. The larger portion of the land which is zoned as a special district is intended to be a business and enterprises district. Evidence to this effect was given by Ms. Geraldine Fahy, a planning consultant in an affidavit of the 30th April, 2007. She says that the aim of the special district zoning is to attract economic and commercial investment and substantial employment but that residential development is not permitted in a special district zoning. It may well be that the zoning of part of the land as a special district constitutes “commercial purposes” as referred to in the draft instructions of the testator’s solicitor and indeed it might amount to “industrial development” as stated in the bequest. But there remains the problem of the use of the word “acquisition” of the testator’s land for residential and/or industrial development. It is unclear whether this means that in the event of the lands being compulsorily acquired for those purposes then the children of the deceased will share equally the proceeds of such acquisition. Or did the testator intend that if the land (as he believed) was zoned for residential and/or industrial development that the lands should be sold and the proceeds divided among his children. The problem is that the will does not say that and appears to “allow” Sean to remain on the land and enjoy the profits of same until they are acquired. When would they be acquired? Could the other children of the deceased compel the executors to sell the land? I take the view that if clause 1 of the bequest contains a condition, that the condition is vague and uncertain. I have already indicated that, in my view, if it is a condition it is a condition subsequent. If the condition subsequent is void for uncertainty then it follows that the first named defendant would be entitled to the land without the condition.
25. The plaintiff and the first named defendant both raised the possibility that the estate intended to be created by the bequest to the first named defendant could be regarded as a conditional or determinable freehold. It is argued that where the word “until” is used in the grant of a fee simple the general rule of constructions is that it may be construed as giving rise to a determinable fee simple. (See Lyall: Land Law in Ireland, 2nd edition, p. 179.) If it is a determinable fee simple then it gives rise to a “possibility of a reverter” in the grantor or settlor, in this case, the estate of the deceased. The court has been referred to Attorney General v. Cummins [1906] I.R. 406 where it was held that the rule against perpetuity does not apply to the possibility of reverter in such a situation. If the bequest to the first named defendant is a determinable fee simple, then it follows that if the determining events are void for uncertainty or otherwise the entire limitation fails. See Lyall: Land Law in Ireland at p. 180 where the following statement appears:
“At common law, if the determining event occurs, the land reverts automatically to the grantor. The grantor has the possibility of a reverter. Indeed, this is the only interest that can exist after the determinable fee simple at common law. At common law the grantor cannot, in the same deed create a determinable fee and then provide that if the event occurs, the land is to pass to someone else. The grantor cannot create a gift over to a third party after a determinable fee.”
This seems to me to be a correct statement of the law.
26. I have been urged to look at the will as a whole and that is what the authorities suggest I must do. However, in this particular case the will as a whole does not offer much assistance in construing clause 1 of the bequest.
Findings
27. I have already stated in this judgment that if clause 1 of the bequest contains a condition then it is a condition subsequent.
28. I am satisfied, however, that the bequest to the first named defendant in clause 1 does not contain a condition. The use of the words “allow” and “until” cause me to take the view that the bequest to the first named defendant is in the nature of a determinable fee simple. I am satisfied that at common law the Testator cannot, in his will, create a determinable fee simple to the first named defendant and then provide that, in the event that a determining event occurs, the land is to pass to someone else. A testator cannot create a gift over to third parties after a determinable fee. On that ground, the entire limitation and the entire bequest fails.
29. I am satisfied that the determining event specified in clause 1 of the bequest is void for uncertainty and it follows therefore, that on this basis, the entire limitation and bequest fails.
30. I am also satisfied that the bequest to the first named defendant was made upon a mistake of fact and that, in the circumstances of this case, it is not possible for the court to rectify or correct the mistake of fact.
31. It follows in my view that the subject matter of clause 1 of the bequest falls into the residuary estate of the Testator.
I answer the questions posed in the Special Summons as follows:
1. The bequest of lands comprised in Folio 13658 in the County of Westmeath is not subject to a condition.
2. Not applicable.
3. Not applicable.
4. No. The statement or declaration is incorrect.
5. The statement is of no dispositive effect.
6. No.
7. Not applicable.
8. Not applicable.
9. Not applicable.
10. The bequest is a determinable fee simple.
11. Yes.
12. Yes.
13. Not applicable.
14. No.
15. Yes.
Mc Guinness -v- Sherry & Anor
[2008] IEHC 134 (08 May 2008)
JUDGMENT of Mr. Justice John MacMenamin delivered on the 8th day of May, 2008
1. This matter comes before the Court by way of an application seeking directions as to the precise meaning and import of the bequest contained in the last Will and Testament of Eoin McGuinness, deceased (hereinafter referred to as “the deceased”), which said bequest is identified in the special summons issued by the plaintiff herein on 6th July, 2007. The notice party has been joined to these proceedings by order made by the Court on 31st March, 2008, for the purposes of, inter alia, providing the Court with the necessary legitimus contradictor in circumstances where the stated position of the executors of the estate of the deceased is that they intend to adopt a neutral status in respect of the contention being made by the plaintiff in regard to the request, the subject matter of the application.
Background
2. The plaintiff in these proceedings is the widow of the deceased, late of Tully House, Tully, in the County of Monaghan, who died on 13th May, 2002. At the time of his death he was 88 years. His wife was considerably younger, in her late 60s. The defendants are the executors of the estate of the deceased and the notice party is the daughter of the plaintiff and the deceased. The issue is to be heard on affidavit and it is accepted that extrinsic evidence is not to be admitted in dealing with the interpretation of the Will.
The Will
3. In the application, the plaintiff seeks directions as to the type of interest conferred upon her by her late husband’s Will. The deceased, in his last Will and Testament dated 1st May, 2002, made the following devises:
“I give and devise to my wife, Ellen, my dwelling house (including front street, gardens, garage, planting, old orchard, yard, rear sheds, cattle crush and farm buildings) with right to enjoy existing services with right of access thereto and therefrom at all times on foot and with vehicles. I give and devise the remainder of my real property to my five children, namely, Charles, Sean, Geraldine, Elizabeth and Teresa, and to my wife, Ellen, jointly, subject to and charged with payment of the sum of €100,000 in favour of my wife, Ellen, payable within one year following the date of my death, and subject to the right of Ellen to have use and occupation of my said real property for the term of her life, free of charge.” (Emphasis added). The emphasized portion gives rise to the issue.
4. The first portion of the devise relating to the dwelling house is relatively straightforward. It provides clearly that the plaintiff is entitled to the whole interest in that part of the property. Steps have been taken to comply with the devise in the recent past. The fundamental issue facing the Court is as to the remainder of the real property as referred to in the second devise. The plaintiff contends that she has the benefit, not only of the joint interest, along with her five children, but in addition that she is entitled by virtue of the devise of the “use and occupation” of the property for her lifetime for a life tenancy in the said property.
5. It is acknowledged that such a claim has consequences for the nature of the joint ownership granted for the first part of that devise.
Life ‘state or right of residence’
6. Section 2 (5) of the Settled Land Act 1882 defines a tenant for life as follows:
“The person who is, for the time being under settlement, beneficially entitled to possession of settled land for his life, is for the purposes of this Act, the tenant for life of that land and the tenant for life under that settlement.”
7. On the other hand, s. 81 of the Registration of Title Act 1964 defines a right of residence as follows:
“A right of residence in or on registered lands, whether a general right of residence of the land or an exclusive right of residence in or on part of the land shall be deemed to be personal to the person beneficially entitled thereto and to be a right in the nature of a lien for money’s worth in or over the land and shall not operate to create any equitable estate in the land.”
8. The plaintiff submits that what is being conferred upon the plaintiff arising from the second devise is not simply a right of residence. The plaintiff had already been given the dwelling house and farm buildings under the Will, thereby providing for her residence. What is at issue is interpretation of the devise the plaintiff’s right to the “use and occupation” of the remaining lands. Does the said devise afford the plaintiff a right of exclusion of the other joint owners insofar as the vesting of property in six joint owners would have entitled all of them to the use and occupation of the lands in common with the other owners? In those circumstances, it is submitted by counsel for the plaintiff that the use by the deceased of the expression “use and occupation” of the land must be taken to mean an additional right enjoyed by the plaintiff to the exclusion of other parties.
9. In the process of interpretation, I propose to adopt the principles as set out in the decision of Carroll J. in the case of Howell v. Howell [1992] I.R. at p. 290, that is:
(i) Read the immediately relevant portion of the Will as a piece of English and decide, if possible, what it means.
(ii) Look at the other material parts of the Will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion, or whether they suggest the need for modification in order to make harmonious sense of the whole, or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
(iii) If ambiguity persists, having regard to the scheme of the Will, I consider what the testator was trying to do.
(iv) Then, have resort to rules of construction, where applicable, and aids, such as the presumption of early vesting and the presumptions against intestacy and in favour of equality.
(v) Then see whether any rule of law prevents a particular interpretation from being adopted.
(vi) Finally, once the dispute of passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar works rarely as binding precedents, but more often as examples of how judicial minds, nurtured in the same discipline, have interpreted words in similar contexts. In adopting this test, Carroll J. was approving the Northern Ireland decision of Herron v. Ulster Bank [1974] N.I. 44, a decision of Lowry L.C.J.
Steps taken by the executors
10. Prior to embarking on the process of interpretation, it is well to set out certain material which is sworn in the affidavit of Terry Gillanders, one of the two executors. Mr. Gillanders sets out the difficulties which were encountered by the executors arising from the difficulties in interpreting the Will. These included issues as to how the interests of the beneficiaries should be registered, be it as joint tenants or tenants in common; whether or not the charge for use and occupation free of charge amounted to a life tenancy and how such charge could be secured, and whether such matters could be resolved by agreement of the beneficiaries, or failing that, by directions of the Court.
11. A common letter was sent to the beneficiaries on 31st October, 2007, advising them of possible options. A number of the beneficiaries have responded, but not all. I do not think it is appropriate to deal with the views of any particular beneficiary as no extrinsic material is to be relied on in the process of interpretation of the Will. The question is one of simple interpretation
(i) Read the immediately relevant portion of the Will as a piece of English and decide, if possible, what it means’.
12. It is unnecessary for the moment to refer to sub-clause A. For this exercise, the main focus must be on sub-clause B. The intent of the testator was that the remainder of the real property should be devised to the testator’s children and to his wife jointly. However, this is subject to two provisos. The first was that there was to be created a charge in the sum of €100,000 in favour of Ellen McGuinness (the testator’s wife, some twenty years his junior), payable within one year by the children. The second proviso was that the devise was “subject to the right of my Ellen to have use and occupation of my said real property for the term of her life, free of charge.” Sub-clause C provides that subject to payments of debts, funeral and testamentary expenses, the remainder of the testator’s property was devised to Ellen, absolutely.
13. On behalf of the defendant, it is submitted that the difficulty is not in interpreting the expression “the right to use and occupy”, but rather than the bequest in favour of the plaintiff of an undivided one-sixth share in the remainder of the testator’s real property, carries with it an entitlement to have the use and occupation of that property free of charge and a clause in the testator’s Will which reads “and subject to the right of my Ellen to have use and occupation of my said property for the term of her life, free of charge” adds nothing to this bequest. It is said to be otiose. The defendant submits simply the plaintiff, in asserting her case, is effectively seeking to “amend” the Will so as to confer on Ellen McGuinness exclusive use and occupation of the property.
14. The real question to be decided is whether the testator intended to grant his wife something over and above the rights which are devised to his children in the lands. Analysing clause B as a piece of English in accordance with authority, there are number of pointers which are helpful. In the first instance, the devise to the children was subject to the payment of the sum €100,000 within one year. Clearly this was something over and above the right of the children, Charles, Sean, Geraldine, Elizabeth and Teresa.
15. One looks, then, to the second part of the specific devise. The question to be asked here is whether it is again the intent of the testator to grant ‘his Ellen’ something over and above the devise to the other children. I conclude that this was the testator’s intention. Just as he wished to give his wife, Ellen, something over and above the devise to the children by reason of the charge, I conclude that he also wished to give something additional over and above the other beneficiaries, that is to say the use and occupation of the real property. Looked at another way, he wanted his wife, Ellen McGuinness, to remain on in the house and lands for her lifetime with the security of the additional charge of €100,000 payable by the children. What was granted to Ellen McGuinness was not simply a right of residence. This had already been granted in the dwelling house and farm buildings under the Will. This provided for her residence. As an aid, it might (if permissible) be useful to consider what the effect of the alternative interpretation urged would be. The consequence would be that while Ellen McGuinness would be entitled to reside in the house, her right to the other real property would not be an exclusive one and would be subject to the rights of joint owners, that is to say, her children, in that real property, and to take such steps as they, as joint owners, might be entitled to avail of. That was the intent of the testator. Such an interpretation might well have consequences including as to the use of the lands surrounding the dwelling house which are the real property in question.
16. But the true test is the Will itself. I consider that the only interpretation of the clause which by use of the terms “subject to” give super-added rights to the wife. They are to give her exclusive possession for her lifetime. To interpret the Will as giving the plaintiff no more than a one-sixth interest in the subject property, would, effectively, be to render the expression “ as subject to the right of my Ellen to have use and occupation of my said property for the term of her life free of charge” inoperative.
17. While the devise may have been difficult to interpret, any question can be resolved in this way. Clearly, the intent of the testator was, in fact, to give his wife Ellen more than a one-sixth interest in the subject property and this is not only emphasized by the charge, but re-emphasized by the concluding part of the devise. It is unnecessary to go further than the second principle in Howell v. Howell.
18. To place an interpretation on the devise which might tend to undermine the integrity of the entire holding, that is to say the house and farm, would surely be to negate a proper interpretation of what was the testator’s intent.
19. Jarman on Wills (7th Edition) sets out a summary of several rules of construction. One of these is rule XVI. It provides that words, in general, are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected and that other can be ascertained; and they are, in all cases, to receive a construction which will give every expression some effect, rather than one that will render any of the expressions inoperative; and of two modes of construction, that is to be preferred which will prevent a total intestacy.
20. Rule XIX provides that words and limitations may be transposed, supplied or rejected where warranted, by the immediate context or the general scheme of the Will; but not merely on a conjectural hypothesis of the testator’s intention, however reasonable, in obvious to the plain and obvious sense of the language of the Instrument.
21. It may be that the interpretation which I conclude is a true one may have the effect of rendering some parts of the devise surplusage. But that is far from saying that it renders any of the expressions contained in the devise inoperative. That is not the effect of the interpretation. Moreover, for the reasons I have outlined, I am not persuaded the interpretation in question is predicated on a “conjectural hypothesis” in opposition to a plain and obvious interpretation. The interpretation, in fact, is reasonable. There is no plain and obvious language to the contrary effect in the devise.
(ii) ‘Look to other material parts of the Will and see whether they tend to confirm the plain meaning of the immediately relevant portion or whether they suggest a need for modification . . .’
22. The matter is further clarified (if necessary) by the second principle. The more general provisions of the Will, if anything, support the conclusion which I have reached. In the first place, the remainder of the Will, is, in general, well drafted. There are specific requests to two of the testator’s daughters, Teresa and Geraldine. These are both in the sum of €6,000. Thus, the interests of those two daughters are more specifically dealt with over and above other beneficiaries. In the concluding portion of the Will, there are two other specific requests to two nephews, Patrick and Larry Sherry. Thus, in four separate areas, where the testator wished to make specific provision, he does so. His intent to ensure that his wife’s security properly protected for her lifetime is reinforced by the final bequest, that is to say the remainder of the testator’s property, to his wife, Ellen, absolutely.
23. I consider that the devise with which we are concerned permits of the supplying of a word in circumstances outlined by Jarman at p.556, that is to say:
“Where it is clear on the fact of a Will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words he has omitted, those words may be supplied in order to affect the intention, as collected from the context.”
24. I consider that the remainder of the devise as to use and occupation for the term of Ellen’s life, free of charge, can only be effected by the construction of the devise with the insertion of the word ‘exclusive’. I do not consider that such an interpretation involves the re-writing of the Will. It is simply to remove a possible ambiguity. I will hear counsel on the form of the order.
O’Donohue v O’Donohue
[2011] IEHC 511
JUDGMENT of Mr. Justice Gilligan delivered on the 1st day of December, 2011
Introduction
1. The making of a last will and testament is one of the most important tasks most people face and unfortunately it is one often approached in haste and without due consideration for its effect. A primary purpose of a will is to make a definitive statement regarding the disposition of a person’s assets on the event of their death. A properly drawn up will, prepared with the benefit of legal advice provided by a solicitor, should ensure that the testator’s wishes for the disposition of their estate will be fully complied with.
2. Where, however, there is any doubt as to the correct interpretation or construction of a will, the Court is charged with the task of determining the deceased’s wishes insofar as it is possible so to do. This case concerns the construction of a will and the approach of the court when confronted with such situations of uncertainty.
3. I turn first to the facts as presented.
Background Facts
4. Dr. John O’Donohue (the “Testator”) was born on the 2nd day of January, 1956. He was ordained a priest on the 6th day of June, 1979, and later gained considerable acclaim as an author and broadcaster. He died testate on the 4th day of January, 2008, a bachelor without issue. He is survived by his mother, Mrs. Josephine (otherwise Josie) O’Donohue (the plaintiff herein), his brothers, Patrick, and Peter O’Donohue (the defendant herein) and his sister, Mary O’Donohue. The testator is also survived by two nieces and two nephews who are the children of his brothers.
5. The Testator’s will (the “Will” or the “2001 will”) is in the following terms:
“Last will [&] Testament of John O’Donohue
Made on night of Feb 21st before Australian Tour.
I leave all my worldly possessions to Josie O’Donohue, my mother, to be divided equally & fairly among my family with special care [&] extra help to be given to Mary O’Donohue, my sister.
Also gifts of money to be given to Olivia [&] family, & Marian O’Beirn.
Smaller gifts to Downey, Ethel, Sheila [&] Pat O’Brien, Laurie Johnson, Ellen Wingard, Deirdre O’Donohue –
Executor of will: Martin Downey [&] Johnny Casey –
Signed: John O’Donohue
Witness: Josie O’Donohue.
Witness: Pat O’Donohue”
6. The Will is holographic and was prepared without the benefit of legal advice. The named executors subsequently renounced their rights to probate of the Will in early 2009. The plaintiff, as the testator’s statutory next of kin, was thereafter appointed as the administratrix. She had previously sworn an affidavit averring to the fact that the “Australian Tour” referred to in the Will took place in 2001 and a copy of the Testator’s passport was exhibited in corroboration. The Testator had previously executed a will dated the 19th day of February, 1998 (the “1998 will”), which was prepared with the benefit of legal advice. Nevertheless the Probate Office was satisfied that letters of administration be extracted in respect of the 2001 will and it was admitted to probate on the 11th day of December, 2009. The Inland Revenue Affidavit certified the net value of the estate at a sum in excess of €2M.
Procedure
7. These proceedings were commenced by special summons, issued on the 7th day of March, 2011, in accordance with Order 3 rule 7 of the Rules of the Superior Courts by the plaintiff, Mrs. Josie O’Donohue, as personal representative of the deceased. The special indorsement of claim provides that as certain issues have arisen in the administration of the estate of the Testator, the court’s assistance is sought to determine a number of matters regarding the true construction of the Will. Pursuant to Order 54 rule 2 of the Rules of the Superior Courts the defendant, Mr. Peter O’Donohue, was named as the defendant, on the grounds that he is one of the persons whose rights or interests were sought to be affected by the proceedings.
8. The matter was listed before the Master’s Court for the 3rd day of June, 2011, where, having satisfied himself that the papers were in order, the Master then transferred the proceedings to the Judge’s List. The matter then came before this Court on the 9th day of November, 2011 following an application for an urgent hearing on the grounds that the plaintiff was terminally ill. The court issued a direction on the 10th day of November, 2011, that all of the parties referred to in the Will were to be notified of the proceedings, that any requests for information be facilitated by the plaintiff’s solicitors and that they be given the opportunity to be heard at the substantive hearing which was listed for the 22nd day of November last.
Submissions of the Parties
9. At that hearing, it was contended on the plaintiffs behalf that although the “2001 will” did not contain an express revocation clause, in accordance with the decision In the Goods of Martin [1968] I.R. 1, the 1998 will was revoked by implication.
10. As regards the structure of the Will, it was submitted on the plaintiffs behalf that three groups are created who are potentially to benefit from the estate namely: (1) “my family”; (2) gifts of money to Olivia and family and Marion O’Beirn; and (3) smaller gifts to Downey, Ethel, Sheila, Pat O’Brien, Laurie Johnson, Ellen Wingard and Deirdre O’Donohue.
11. The starting point, it was submitted, is to ascertain the intention of the testator. Where the construction of a will is doubtful, there is a presumption against intestacy, provided that on a fair construction there is no ground for a contrary conclusion. It was further submitted that to avoid a will on the grounds of uncertainty, it is not sufficient that the dispositions in it are so absurd and irrational that it is difficult to be believed that they could have been intended by the testator, but rather that the will must be incapable of any clear meaning.
12. The plaintiff accepts that there is some uncertainty regarding the delimitation of the term “family” which word is used twice in the Will. It was also accepted that there is an arguable case of uncertainty in relation to the objects and quantum of the gift to the second and third groups.
13. It was submitted that s. 90 of the Succession Act 1965 (the “1965 Act”) can be used to overcome these uncertainties as this section entitles the court to admit extrinsic evidence to ascertain the intended meaning of “family” and the identity of the other objects of the gifts. In particular the plaintiff urged the court to have regard to the affidavit evidence which avers that the Testator’s reference to “my family” was referring to his mother and siblings. It is also urged that the court have regard to the terms of the 1998 will, which was exhibited on affidavit, insofar as it aids in identifying any of the ambiguous objects under the Will.
14. The plaintiff pointed to a second difficulty on the face of the Will which was the contradiction between dividing the estate “equally and fairly” among the Testator’s family but with “special care and extra help” to be given to his sister. The submission was canvassed that in order to apply the presumption against intestacy, the court is entitled to omit words which would cause the Will to be declared void for uncertainty. The basis of this proposition was the decision in Robinson v. Waddelow 8 Sim. 134 (1836), which was said to vest in the court the jurisdiction to reject the words “with special care and extra help to be given to Mary O’Donohue, my sister”.
15. The plaintiff submitted that, with the omission of those words, the most reasonable construction of the Will would be to understand it as creating a hybrid form of trust which contains elements of a fixed trust as well as a discretionary trust, of which the plaintiff is to be the trustee. Counsel for the plaintiff was unable, however, to point the court to any authority for the proposition that a “hybrid trust” could be found as a matter of law. The plaintiff nevertheless described this trust in terms whereby the gifts to the Testator’s family are part of a fixed trust from which each is entitled to a quarter share in the residue of the estate. Given that both the plaintiff and Mr. Patrick O’Donohue witnessed the Will, s. 90 of the 1965 Act prevents both of them from benefiting under the Will and creates a situation of partial intestacy. This half share of the residual estate held as tenants in common therefore falls to the statutory next of kin, who in accordance with s. 68 of the 1965 Act, is the plaintiff. The gifts to the second and third groups form part of a discretionary trust over which the trustee has discretion as to quantum subject to the condition that the third group receive smaller sums than the second group. It was submitted that the court is not therefore required nor is it entitled to determine the amounts to be bequeathed to the second and third groups.
16. However the plaintiff does contend that were the court to find the gifts to the second and third groups void for uncertainty then the fixed trust would remain unaffected. On the other hand, were the court to find that the gift to the first group was void for uncertainty it was argued that the entire Will must fall as to find otherwise would be to hold that the Testator intended to benefit his friends only to the exclusion of his own family, which it is contended would be a perverse result.
17. The defendant represented the interests of the immediate O’Donohue family at the trial, namely the Testator’s three siblings and his nieces and nephews and Mrs. Josephine O’Donohue in her capacity as a designated beneficiary. The submissions on their behalf largely echoed those of the plaintiff in that they contended that the Will creates a trust requiring Mrs. O’Donohue, as trustee, to divide the Testator’s entire estate relatively equally among his mother and siblings but subject to such funds as might be required to give effect to the gifts provided for the other named beneficiaries. Such gifts were to be subject to the discretion of the trustee.
18. Orla O’Connell, a solicitor representing Ms. Olivia Moriarty and her children, attended court and in writing expressed the view that the Testator created a discretionary trust wherein Mrs. Moriarty and her family have an absolute right to a gift of money under the Will. It was her view that the Testator made a valid will benefiting the Testator’s family and Mrs. Moriarty and her three children.
19. Ms. Marian O’Beirn, in a number of letters before the court, expressed the view that the Testator “would have afforded his family priority in the first instance and would have wanted to ensure that each member of his family was treated fairly in connection with any distribution as indeed he references in the will”. She was happy for the court to decide the nature and extent of the benefit to each beneficiary provided copies of her letters and the previous will were before the court, as was the case.
20. Fr. Patrick O’Brien, Dr. Laurie Johnson, Ms. Ellen Wingard, Ms. Sheila O’Sullivan and Ms. Ethel Balfe were satisfied to leave the matter entirely to the discretion of the Testator’s family and did not intend to attend or make representations before the court.
21. Mr. Martin Downey and Dr. Deirdre O’Donohue made it clear that they did not wish to benefit from the Testator’s estate.
Legal Issues
Implied revocation of earlier will
22. The first question is the status to be afforded to the 1998 will in circumstances where the 2001 will did not contain an express revocation clause.
23. O’Keeffe P. In the Goods of Martin [1968] I.R. 1, was confronted with two wills, the earlier of which contained an express revocation clause, whereas the later one did not. He found that as the second will contained a bequest of “all my money”, this constituted an implied revocation of the first will. Here, the Testator used the phrase “all my worldly possessions” which would leave little doubt, in the light of the judgment of O’Keeffe P., that the Testator intended to revoke and as matter of law did so revoke the 1998 will. Accordingly, the court is satisfied that the 1998 will has been revoked and that the court therefore has the task of discerning the intention of the Testator exclusively according to the 2001 will.
The Testator’s intention
24. The issue that arises is the proper approach that is to be adopted by the court.
25. In the case of In re Curtin Deceased [1991] 2 I.R. 562, at 573, O’Flaherty J. in the Supreme Court, held that:
“The first duty of a court in construing a will is to give effect to the intention of the testator.”
The court’s consideration of the Will is therefore subject to the principal duty that it must seek to give effect to the testator’s intention.
Construction of a will
26. Guidance, on the construction of a will generally, comes from the judgment of Carroll J. in Howell v. Howell [1992] 1 I.R. 290 in which she expressly approved the statement of Lowry LCJ in the Northern Irish case of Heron v. Ulster Bank Ltd [1974] N.I. 44, at 52, regarding the procedure to be adopted in construing a will. Although Carroll. J. recited Lowry LCJ’s statement verbatim, I believe that for present purposes it can be distilled into the following steps:
27. Firstly, consider the relevant portion of the will as a piece of English in an effort to extract its meaning. Secondly, seek to compare that portion with other sections from the will in order to seek confirmation of the apparent meaning of that portion. If any ambiguity or contradiction remains then it is useful to consider the overall scheme or framework of the will for the purposes of discerning what the testator was trying to achieve by its terms. Thirdly, where any doubt remains, the court must then determine whether any modification is required to resolve that ambiguity or so as to provide harmonious sense to the meaning of the will. Fourthly, the court should examine whether the rules of construction or the provisions of the relevant legislation provide authority for the court to make the necessary modifications. Fifthly, consideration must be given to any rules of law which would prevent the particular course of action proposed to save a will. Finally, although “no will has a twin brother” the court may have regard for precedent as a guide to how judicial minds have interpreted words in similar contexts.
28. In broad terms, the above approach provides a useful template as to how the court should address the interpretation of a will. Each of the steps will now in turn be considered and the facts of the present case applied.
The plain meaning
29. I am satisfied to adopt counsel for the plaintiff’s suggestion that the Will may be regarding in three parts. On a plain reading, in the first part, the Testator gives all of his possessions to his mother with the direction that she divides them equally and fairly among his family but that something extra is to be given to his sister. The second portion directs that monetary gifts be given to Olivia and her family as well as to Marian O’Beirn. Finally, the third portion directs that smaller gifts are to be given to seven identifiable individuals.
30. As a piece of English, the Will is unclear on its face and raises a number of questions. How is the court to interpret the apparently contradictory intention that the estate is to be divided equally among the Testator’s family but that his sister is to receive extra care and help? Further, if the Testator’s entire estate is to be divided equally and fairly among his family, from where are the gifts to the second and third groups to be sourced? If the court were to accept that the gifts to the second and third group were to derive from the Testator’s estate, how are they to be quantified? These questions go to the heart of the issue and present a significant stumbling block to ascertaining the Testator’s intention.
31. The only fact that is undoubtedly clear is that the Testator did intend that a group of people are to benefit from his will. That group, it appears to the court, is readily distinguishable and were it necessary, the court would have little hesitation in identifying the individuals concerned on the basis of the extrinsic evidence put before the court. However, what is significantly less clear is the manner in which the Testator intended his estate to be divided between those people.
The scheme and material parts of the Will
32. When comparing the second and third portion of the Will, it would appear to be clear that the Testator intended the third group to benefit in the same manner as the second group, that is to say from a monetary gift, but at different levels. Taking into account the brevity of the Will, the court does not have before it other material from within the four corners of the Will from which to seek to identify the intention of the Testator through a comparison.
33. A consideration of the scheme of the Will is itself unhelpful. The approach suggested by the plaintiff was that the court should, in effect, start reading the Will from the bottom up. This would mean that the gifts to the second and third groups should be made first, leaving the remainder to be divided among the family members within the first group. Such an approach or “scheme” is not clear from the face of the Will. In fact the opposite is arguably more apparent in that it is difficult to infer any scheme from the will in which at the outset it is provided that one group benefits from the entirety of the estate. Furthermore, it is difficult to envisage a situation in which a Testator would seek to benefit his friends before his family. In the circumstances, the court is not assisted by the scheme of the Will in attempting to come to a view on the Testator’s intention.
Modification of the will
34. This leads to a consideration of whether the terms of the Will suggest the need for modification in order to resolve any uncertainty or ambiguity. For present purposes, and without deciding the point, I will assume that the plaintiff’s suggestion is the most appropriate statement of the Testator’s intention.
35. In order to give effect to the hybrid trust model proposed, it is suggested on the plaintiff’s behalf that the words “with special care and extra help to be given to Mary O’Donohue, my sister” be removed to allow for the more reasonable construction that a fixed trust was intended in respect of the first group. I would comment that the word “and” should be substituted by the word “also” at the start of the second portion and the word “with” inserted before the third portion to provide for a discretionary trust which would be executed before allowing for the fixed trust to account for the residue of the estate. The modified version would then read:
“I leave all my worldly possessions to Josie O’Donohue, my mother, to be divided equally & fairly among my family [] after gifts of money to be given to Olivia [&] family, & Marian O’Beirn with Smaller gifts to Downey, Ethel, Sheila [&] Pat O’Brien, Laurie Johnson, Ellen Wingard, Deirdre O’Donohue”
Aids to construction
36. The court’s duty in seeking to identify the Testator’s intention from his will is weighted by the presumption against intestacy. The 1965 Act, in particular, provides the court with a number of tools with which it can seek to construe the words in a will in a positive manner so as to save a devise or legacy that would otherwise be void for uncertainty.
37. Section 90 of the 1965 Act provides that:
“Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.”
38. In this case the extrinsic evidence put before the court is of assistance in identifying the intended beneficiaries under the Will. However, no evidence was put before the court which provided any clarity as to how they were to benefit save to the extent that it was commoncase that the Testator’s family should benefit first. There is a very real sense that even this small and apparently innocuous piece of evidence only serves to confuse matters further. If the Testator’s family are to benefit first then it would be difficult to see how the gifts to the second and third groups could be given any real meaning. Alternatively if the Testator’s family are to benefit the most from the Will then the difficulty remains that a comparator or superlative is only as good as the basis of comparison provided and there is none in the circumstances that prevail here.
39. Moving then to s.99 of the 1965 Act which has been described in some academic commentaries as the “golden rule” of construction, it provides that:
“If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.”
40. The Will does not immediately suggest any interpretation which would allow the various bequests to be operative. In truth, the plaintiff’s suggestion is to be preferred as it is the least worst option. That is to say, it seeks to vindicate the Testator’s apparent intention while doing the least violence to the wording of the Will itself. In a sense the Testator’s intention that his family share equally in a portion or all of his estate is as clear as his intention that his sister should be singled out and bequeathed more than the rest. However, both intentions are mutually exclusive and as such removing the latter words allows the rest of the portion to stand, while removing the former words would rule that portion out almost automatically. It is in this way that the plaintiff’s suggestion is the least worst option. Nevertheless finding the “least worst” option is not the test which the court is charged with implementing. As such, consideration must be given to whether the modifications proposed are permissible as a matter of law.
Rules which bar the particular course of action
41. O’Flaherty J. In re Curtin Deceased [1991] 2 I.R., 562 at P. 573 sounded a note of caution when approaching the task of modifying a will, stating that:
“A judge is to tread cautiously so as not to offend against the judicial inheritance which is that one is entitled to construe a will but not to make one.”
In that case O’Flaherty J. was satisfied to insert a “simple clause” as it would “supply a proper sense” to the will. Having considering the terms of the Will at length and listened to the submissions of the parties I come to the conclusion that there is no such simple insertion or removal that I can make to the terms of the Testator’s will which would supply the proper sense intended by the Testator. To accede to the proposal outlined above would be to do more than insert a simple clause and instead would see this court attempting to remake the Testator’s will, which is a function that I cannot presume to exercise.
42. Furthermore, I am uneasy with the proposition advocated by the plaintiff that the court may presume that there was an intention to create a “hybrid trust”. This suggestion was, however, unsupported by any authority. Furthermore, although the court is mindful of the presumption against intestacy, that presumption does not extend to the creation of new concepts as and when the need arises.
43. Having found myself in the circumstances unable to decipher the exact meaning of the Will, I reject the proposition submitted by the plaintiff as to the intention of the Testator.
Previous case law
44. I now turn, as a last resort, to previous case law in an effort to seek the guidance of my peers who have previously faced similar difficult situations.
45. In the case of Peck v. Halsey [1726] 2 P W.M.S. 388, a bequest of “some of my best linen” was held to be void for uncertainty. In the later case of Jubber v. Jubber 9 Sim 503 (1839), a provision in a will which directed that “a handsome gratuity to be given” was held to be void for uncertainty.
46. Neither of these cases provides assistance to the court in trying to rescue the intention of the Testator and in fact they provide persuasive authority to the contrary in respect of the second and third groups.
Conclusion
47. The Testator has unfortunately provided an illustration of exactly how a person should not make a will. While there can be little doubt but that the Testator was a man of considerable learning, the fact that he did not benefit from legal advice or assistance is evident from the will he drew up. Not only was it deficient in terms of the lack of certainty as to his intention but moreover he unwittingly made the classic error of having two of the intended beneficiaries act as witnesses to his signature, thereby depriving both as a matter of law from benefiting under the terms of the will.
48. Accordingly, it is with regret that in the circumstances as outlined I must hold that, although the will before this Court is valid as it satisfies the requirements of s. 78 of the 1965 Act, and also revokes the prior will of 1998, the terms of the Will render it void for uncertainty. The entirety of the Testator’s estate consequently falls into intestacy and the statutory rules apply thereby bringing about a situation, pursuant to s. 68 of the 1965 Act, that the deceased’s mother takes the entire estate. Accordingly, it is unnecessary for me to make any findings in respect of the other questions posed in the special summons.
Thornton v Timlin
[2012] IEHC 239
Judgment of Ms. Justice Laffoy delivered on 13th day of June, 2012.
The proceedings
1. In these proceedings, which were initiated by special summons which issued on 11th November, 2011, the plaintiff, who is a personal representative of Edward Rafter (the Testator), seeks orders from the Court determining the true construction of a provision in the will of the Testator. The Testator died on 27th June, 2006 at the age of eighty two having never married. He died without issue. He made his last will and testament (the Will) on 10th August, 1983. Probate of the Will was granted on 16th November, 2009 to the plaintiff, the surviving executor named therein. Before dealing with procedural matters, it is appropriate to outline the provisions of the Will to put in context the provision which has necessitated the initiation of these proceedings.
The provisions of the Will
2. The person appointed co-executor with the plaintiff in the Will, who did not survive the Testator, was Reverend Canon Martin MacManus of Bonniconlon, Ballina, County Mayo. Having directed his executors to pay his debts, funeral and testamentary expenses, the Testator made the following bequests:
(a) a bequest of certain shares to the trustees of Bonniconlon GAA Club “to be used for the benefit of the Club”;
(b) the sum of IR£500 to the Committee in charge of Killaser Community Centre to be used for charitable purposes;
(c) the sum of IR£500 “to Mayo County Council (Ballina area) workers”, being the bequest which has given rise to these proceedings;
(d) the sum of IR£500 to “the Association for the Blind, Hatch Street Dublin”, to which bequest there was added the rider: “I forget the precise name of the organisation”;
(e) the sum of IR£200 to the Wireless for the Blind Association;
(f) the sum of IR£500 to Divine Word Missionaries for charitable purposes;
(g) the sum of IR£500 to the Parish Priest for the time being in Knock for charitable purposes;
(h) the sum of IR£500 to the Parish Priest for the time being in charge of the Church on Croke (sic) Patrick for charitable purposes;
(i) the sum of IR£1,000 to the Bursar in St. Murdach’s (sic) College Ballina “for a trust to be used to help a pupil most in need of financial help and assistance”;
(j) the sum of IR£1,000 to the Vocational Educational Committee for County Mayo on trust to help a pupil in Ballina Vocational School who is in need of financial help and assistance; and
(k) the sum of IR£500 to “the Boy Scouts Organisation in Ballina”.
The residuary clause in the Will was in the following terms:
“All the rest residue and remainder of assets are to be realised and invested in Prize Bonds and all of the beneficiaries in my Will are to benefit equally from them.”
3. At the commencement of the Will the Testator was described as late of an address in Ballina and as “County Council Employee”.
4. According to the grant of probate, an Inland Revenue Affidavit had been delivered, which showed that the net value of the estate amounted to €368,213.21. The Court was informed that the residue for distribution will be approximately €250,000.
Procedural matters
5. In the special summons, in which the Manager of Mayo County Council was originally named as defendant, the plaintiff seeks an order determining the true construction of the bequest to “Mayo County Council (Ballina area) workers”, and, in particular, the identification of the beneficiaries of the bequest. The plaintiff also seeks such necessary ancillary orders as may appear to the Court to be just and equitable having regard to the provisions of the Succession Act 1965 (the Act of 1965) and to all of the circumstances of the case.
6. The special summons was grounded on a short affidavit of verification of the type appropriate to a probate action, which was sworn by the plaintiff. It was also grounded on affidavits sworn by –
(a) Michael Timlin, a former work colleague of the Testator as an employee of Mayo County Council; and
(b) John Brogan, an employee of Mayo County Council, whose late father had been a work colleague of the Testator, and who was a godson of the Testator.
7. In response to the special summons, Kieran Joyce, the Acting Senior Staff Officer of Mayo County Council, swore an affidavit in which he set out the following facts:
(a) that the Testator had been employed by Mayo County Council as a “Ganger” working as a member of the Council ‘s outdoor staff in Ballina, County Mayo from 19th September, 1945 until he retired on 2nd February, 1990; and
(b) that Mayo County Council does not use the term used by the Testator in his Will, that is to say, “Mayo County Council (Ballina area) workers”.
Mr. Joyce exhibited two lists of staff employed by Mayo County Council, namely:
(i) A list of staff employed in the Ballina area at the date of the death of the Testator, 27th June, 2006, distinguishing “Outdoor” employees, “Indoor” employees and “Professional/Technical” employees. In the “Outdoor” category there were in excess of seventy workers listed, including, obviously, clerical and administrative workers.
(ii) A list of staff employed in the Ballina area as at 18th January, 2012, which list included clerical/administrative staff, outdoor staff and professional/technical staff. That list also included in excess of seventy outdoor staff, including a number of female staff, whom I assume perform clerical functions.
8. By order of the Court, Mr. Timlin, being a former co-worker of the Testator, has been substituted as defendant for the Manager of Mayo County Council.
9. In his capacity as defendant, Mr. Timlin swore a supplemental affidavit on 20th April, 2012. At the hearing of the action on 23rd May, 2012, Mr. Timlin gave oral testimony. Before considering Mr. Timlin’s evidence, I propose outlining what I consider to be the relevant provisions of the Act of 1965 which govern the approach the Court must adopt to construction of the provision in the Testator’s Will which the Court has been asked to construe and the consequences of a particular construction and the relevant legal principles.
Relevant provisions of the Act of 1965 and legal principles
10. Section 89 provides as follows:
“Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.”
The words to which emphasis has been added in the above quotation were not in the corresponding section of the Wills Act 1837, s. 24. There is a marginal note in the Act of 1965 opposite s. 89 to the following effect:
“Will to speak from death of testator.
[1837] (c. 26) s. 24 extended so as to overrule Wild’s case (1599) … ]”.
While it is unnecessary to address the intricacies of Wild ‘s case here, it is important to emphasise that, unlike the application of s. 24 of the Wills Act 1837 in the United Kingdom, where it applies with regard to the subject-matter of a gift but does not in any way affect the construction of a will with regard to the object of a gift (per Theobald on Wills, 16th Ed., 2001 at para. 18 – 09), s. 89, because of the words to which emphasis has been added, does affect the construction of a will with regard to the object of the gift.
11. Section 90 provides:
“Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.”
The main focus of both counsel for the plaintiff and counsel for the defendant in their helpful written and oral submissions was on s. 90. The basis on which the Court can admit extrinsic evidence under s. 90 is succinctly summarised in the following passage from the judgment of Keane J., as he then was, with whom the other Judges of the Supreme Court concurred, in O’Connell v. Bank of Ireland [1998] 2 IR 596 (at p. 611):
“There are thus two conditions which must be met before such evidence is admissible: it must assist in the construction of the will or resolve a contradiction and it must, in either event, show what the intention, in the particular context, of the testator was.”
12. Section 91 provides as follows:
“Unless a contrary intention appears from the will, any estate comprised or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in any residuary devise or bequest, as the case may be, contained in the will.”
13. Section 99 provides:
“If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.”
14. The primary duty of the Court in construing a will is to ascertain and give effect to the intention of the testator. In recent years the High Court in this jurisdiction has adopted the guidance on the construction of wills generally given by Lowry LCJ in Heron v. Ulster Bank Ltd. [1974] N.J. 44, as appears from Howell v. Howell [1992] 1 I.R. 290 (Carroll J.), Corrigan v. Corrigan [2007] IEHC 367 (McGovern J.), and, most recently, O’Donohue v. O’Donohue [2011] IEHC 511 (Gilligan J.). Lowry LJC stated as follows:
“I consider that, having read the whole will, one may with advantage adopt the following procedure:
1. Read the immediately relevant portion of the will as a piece of English and decide, if possible, what it means.
2. Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole, or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
3. If the ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
4. One may at this stage have resort to rules of construction, where applicable, and aids, such as the presumption of early vesting and the presumption against intestacy and in favour of equality.
5. Then see whether any rule of law prevents a particular interpretation from being adopted.
6. Finally, and, I suggest, not until the disputed passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar words, rarely as binding precedents since it has been well said that ‘no will has a twin brother’ ….”
The evidence
15. Apart from the affidavit evidence of Mr. Joyce, which I have outlined above, the Court has the evidence, both oral and on affidavit, of Mr. Timlin, and the affidavit evidence of Mr. Brogan.
16. Mr. Timlin has made it clear that he never spoke to the Testator in relation to the Testator’s intentions or wishes. However, he was a co-worker of the Testator from 1969 until the Testator’s retirement in 1990. He continued to work for Mayo County Council until his own retirement in February 2012. He described the work carried out by him and his co-workers- repairing roads, water mains and building walls. They worked in groups, usually in the same area and with the same people. Mr. Timlin, in his supplemental affidavit sworn on 20th April, 2012, identified the persons, including himself, with whom the Testator had most contact over a long period of time and whom, in his opinion, would have been included in the bequest in issue. It is clear that four of the individuals were outdoor workers and two performed clerical functions. Whether the seventh person worked outdoors or performed other functions is not quite clear. Of the seven, one retired in 1983, one retired in 1992, one retired in 2000, one retired in 2002 or 2003 and two, including Mr. Timlin, retired in 2012. It is not clear when the seventh, a woman who worked as an assistant in the office, retired. However, she does not appear on Mr. Joyce’s list of staff as at 27th June, 2006 and, therefore, I infer that she had retired before the Testator’s death. In his oral evidence Mr. Timlin added another person to the list. The evidence is that he worked with Mayo County Council until 1982, so that he had left before the Testator had made his Will.
17. Mr. Brogan in his affidavit averred that many of the work colleagues of the Testator are now deceased and he confirmed that the seven persons named by Mr. Timlin were “still living former work colleagues” of the Testator. One of the seven persons named has died since the date of swearing of that affidavit.
18. What is absent in this case is any admissible extrinsic evidence of whom the Testator himself intended to benefit by the bequest to “Mayo County Council (Ballina area) workers”. There is no evidence of the circumstances in which the Testator executed the Will, save such intrinsic evidence as is afforded by the Will itself. The Will was produced in manuscript. The two witnesses are described as: “Solicitor Galway”; and “c/o Regional Hosp. Galway”. Although this is not in evidence before the Court, the Court was informed that when the Will was made, the Testator was a patient in what was then known as the Regional Hospital in Galway and that the solicitor who witnessed the Will and who, presumably, advised the Testator, is no longer practising as a solicitor.
Application of the law to the facts
19. To reiterate, the problem which the Court has to address is who did the Testator intend should benefit from the bequest “to Mayo County Council (Ballina area) workers”, or, to put it another way, who are the objects of that bequest and, what, if any, entitlement do the objects have to benefit under the residuary clause in the Will.
20. In my view, the starting point in addressing that problem is that on a plain reading of the bequest in issue, whether on its own or in the context of the Will as a whole, no intention contrary to the application of s. 89 of the Act of 1965 is discernible. Therefore, s. 89 applies. Accordingly, the Will speaks from the death of the Testator as to identifying the beneficiary or beneficiaries. Therefore, the question for the Court it is whether it is possible to identify who or what constitutes “Mayo County Council (Ballina area) workers” as at 27th June, 2006 as intended by the Testator.
21. All of the other bequests in the Will are made to organisations, associations, office holders and, indeed, in one case to a public body, and they are all given for charitable purposes, or otherwise benevolent purposes. It is clear on the evidence that the term “Mayo County Council (Ballina area) workers” is not a term which is used by Mayo County Council. There is no evidence that there was any organisation or association or other body of such workers. Therefore, it is necessary to consider whether it is possible to identify a cadre or class of, or individual, workers whom the Testator intended to benefit.
22. It is not possible to identify the workers whom the Testator intended to benefit, either from the plain meaning of the bequest on its own or in the context of the Will as a whole. The problem is one of lack of clarity rather than ambiguity. In my view, s. 90 does not assist because, as I have indicated earlier, there is no admissible extrinsic evidence as to whom the Testator intended to benefit. There is evidence as to the identity of the Mayo County Council workers who were working in the Ballina area on 27th June, 2006. However, I do not think that it would be proper to conclude that it was the intention of the Testator that the seventy plus workers employed by Mayo County Council on, or in connection with, outdoor work in the Ballina area sixteen years after his retirement should benefit under the bequest or under the residuary clause in the Will. The only other evidence before the Court is evidence as to the identity of co-workers who were particularly friendly with the Testator during his lifetime. However, in my view, that evidence is not admissible under s. 90 to inform the Court in determining who should benefit under the clause in issue, because, in my view, it does not fulfil the second condition laid down by the Supreme Court in 0’Connell v. Bank of Ireland, in that it does not show what the intention of the Testator was in the particular context. It merely reflects the opinion and belief of the witnesses. Apart from that, there is nothing in the bequest on its own, or in the context of the Will as a whole, to indicate that what the Testator intended was that work colleagues with whom he was friendly and who were kind and generous to him should benefit under the bequest. To construe the Will on that basis would, in effect, be rewriting the Will. Unfortunately, I must conclude that the bequest is void for uncertainty.
23. Accordingly, I have come to the conclusion that the pecuniary bequest of IR£500 “to Mayo County Council (Ballina area) workers” does not admit of any interpretation which would preserve it by virtue of the operation of s. 99 of the Act of 1965. Therefore, by virtue of the operation of s. 91 of the Act of 1965 that bequest i s included in the residuary clause in the Will. It follows from the conclusion that the pecuniary bequest is void for uncertainty that the beneficiaries of the residuary estate do not include “Mayo County Council (Ballina are) workers” as named in the pecuniary bequest.
24. Finally, I think it is apt to note that in 0’Connell v. Bank of Ireland (at p. 615) Keane J. drew attention to the fact that the Supreme Court had then recently drawn attention in E.B. v. S.S. [1998] 2 ILRM 141 to the importance of notice being given by parties to proceedings to the Attorney General, as protector of charities, where the interests of charities may be affected by the outcome of proceedings. In this case, most, if not all, of the beneficiaries under the residuary clause are charities. On reflection, when it made the order substituting Mr. Timlin as defendant, the Court should have directed that, before the matter was listed for hearing, notice be given to the Attorney General, because clearly if the clause in the Will in issue was found to be valid and implementable, the aggregate of the shares of the named charities of the residuary estate would be diminished by approximately €25,000. However, I think it appropriate to adopt the pragmatic position adopted by the Supreme Court in 0’Connell v. Bank of Ireland and conclude that no useful purpose would be served at this stage by adjourning the matter so that notice should be given to the Attorney General. However, the foregoing observations are intended as a reminder not only to future litigants, but also to myself!
Mullen v Mullen
[2014] IEHC 407
JUDGMENT of Mr. Justice Cregan delivered on the 31st day of July 2014
Introduction
1. This is an application about the interpretation of the terms of a will. The will was made by Mrs. Elizabeth Mullen, deceased, of Fahy, Clifden, County Galway. Mrs. Mullen died on 24th May, 2012 having executed her last will and testament on 19th July, 2004.
2. In her will Mrs Mullen left various bequests to her sons and daughters but she also bequeathed a small plot of land of not more than half an acre to her grandson, James Mullen Jnr., the plaintiff in these proceedings.
3. Mrs. Mullen died on 24th May, 2012 without having altered or revoked her last will. In her will she appointed the defendant James Mullen, her son, to be her executor. There is however a dispute between the plaintiff and the executor of the will as to the meaning of the bequest to James Mullen Jnr. James Mullen Jnr., claims that he is entitled to the bequest; the defendant on behalf of the estate claims that the bequest has lapsed and/or has failed.
The terms of the will
4. I set out below the terms of the will in full. It is dated 19th July, 2004 and it provides as follows :
This is the last will and testament of me, Elizabeth Mullen (otherwise Betsy Mullen) of Fahy, Clifden, County Galway. I revoke all former wills and testamentary dispositions heretofore made by me
I appoint my son James Mullen to be executor of this my will subject to the payment of my lawful debts funeral and testamentary expenses.
I give devise and bequeath as follows:
My house and garden at Fahy, Clifden to my three daughters,
Lily Kane of Dawros Letterfrack
Rita McNamara of Tullyvoheen, Clifden
And Margaret Pride of Letternoosh, Clifden
In equal shares.
The field opposite my house at Fahy, Clifden as to one half thereto to my son, Marty Mullen and as to the other half thereof to my son Thomas. They are each to have the half nearest to their respective houses.
To my executor and son James Mullen the land upon which his house stands at Fahy, Clifden together with the well and water supply servicing same which comes from adjoining lands and also I give devise and bequeath to him the lands running to the sea which he presently occupies.
I also give devise and bequeath to my son, James Mullen the site of the house my late husband James Mullen senior was born in which is situated at Fahy, Clifden and is half way between the Low Road and the Sky Road.
I also give, devise and bequeath to James Mullen Junior., son of my son John, a small plot or piece of land of not more than half an acre to make up the site of his proposed new house should he require same.
All the rest, residue and remainder of my property of every nature and kind wheresoever situate I give devise and bequeath to my three sons John, Marty and Thomas in equal shares.
I direct that my executor appoint the firm of Black and Co. Solicitors of 28 South Frederick Street, Dublin 2 to act in the administration of my estate and that they be paid their proper professional fees and expenses for so doing.
In witness whereof I have herewith signed this my last will and testament this 19th day of July, 2004.
Elizabeth Mullen (Betsy)
Signed by the testatrix.
5. The relevant bequest which is at issue in these proceedings is as follows:
“I also give devise and bequeath to James Mullen Junior, son of my son John, a small plot or piece of land of not more than half an acre to make up the site of his proposed new house should he require same.”
Relevant factual background.
6. The parties are agreed that there are certain factual matters which are relevant in order to put the will into some form of factual context.
7. I set out below therefore a summary of the relevant background to the making of the will.
1. The plaintiff James Mullen Jnr. had been left certain lands by his father which adjoined the testatrix’s lands.
2. He then set about applying for planning permission to build his own home on this site. He obtained planning permission. In or about June 2005 he commenced construction of his dwelling house on these lands and he substantially completed the construction and moved into the house with his wife on or about 30th July, 2006.
3. The plaintiff, in his affidavit, states that it was difficult to secure planning permission in the area but, as his brother had already constructed his house adjacent to the plaintiff’s lands, he was able to use his brother’s access road which greatly strengthened his application for planning permission.
4. It appears that the site on which the plaintiff built his house was a difficult site on a sloping road and blasting was required to clear the stone from the hillside and also to create a level space.
5. In or about March 2010 the plaintiff sought the testatrix’s permission to use a portion of her lands (which adjoined his dwelling house) as a garden. The plaintiff at this stage had a number of small children and wished to obtain a garden for them to play in.
7. The plaintiff also states in his grounding affidavit that from May 2010 until the testatrix’s death on 24th May, 2012 that he, the plaintiff, occupied this portion of the testatrix’s land for use as a garden with her knowledge, consent and indeed encouragement. He avers that he placed swings on the land for use by his children and that the testatrix on her many visits to his house also discussed with the plaintiff the use to which he could put the lands and encouraged him to plant vegetables on the lands, to keep chickens on the lands and also to allow his children to play there.
8. The defendant in these proceedings has sworn a replying affidavit. There are certain paragraphs in the affidavit which relate to details about the testatrix’s late husband and various conversations which may or may not have been had with him and what his intentions may or may not have been. These matters however are not relevant in any way to the matter which I have got to decide, namely the interpretation of the testatrix’s will. The testatrix’s husband died before her and in his will he left all his land and properties to her to bequeath as she wished.
9. The defendant, in essence, says that the plaintiff had an offer (at the time he was building his house) from his grandfather (the testatrix’s husband) “of a few feet of land to help him build his house should he need it”. However he did not avail of the offer to make up the site of his proposed new house and this is proof that he does not need it now. The defendant also states that he is of the view the plaintiff has an adequate area within his site to create a garden.
10. The plaintiff filed a replying affidavit as did his mother Kathy Mullen. A further affidavit was also sworn by Gerard Black, the testatrix’s solicitor about the circumstances in which the testator made her will.
The Legal Principles Applicable to this Application
The Relevant Statutory Provisions
11. Section 89 of the 1965 Succession Act provides as follows:-
“Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.”
21. Section 90 provides:
“Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.”
22. Section 91 provides:
“Unless a contrary intention appears from the will, any estate comprised or intended to be comprised in any devise or bequest contained in the will which fails or is void by reason of the fact that the devisee or legatee did not survive the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, shall be included in any residuary devise or bequest, as the case may be, contained in the will.
…
23. Section 99 provides:
“If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.”
Case Law
12. Laffoy J. In Re Rafter [2012] IEHC 239 considered to how the court seeks to construe a will and to give effect to the intention of the testator and referred to the principles set out by Lowry LCJ in Heron v. Ulster Bank Limited as follows at para. 14:-
“The primary duty of the Court in construing a will is to ascertain and give effect to the intention of the testator. In recent years the High Court in this jurisdiction has adopted the guidance on the construction of wills generally given by Lowry LCJ in Heron v. Ulster Bank Ltd. [1974] N.J. 44, as appears from Howell v. Howell [1992] 1 I.R. 290 (Carroll J.), Corrigan v. Corrigan [2007] IEHC 367 (McGovern J.), and, most recently, O’Donohue v. O’Donohue [2011] IEHC 511 (Gilligan J.). Lowry LJC stated as follows:-
‘I consider that, having read the whole will, one may with advantage adopt the following procedure:
1. Read the immediately relevant portion of the will as a piece of English and decide, if possible, what it means.
2. Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole, or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
3. If the ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
4. One may at this stage have resort to rules of construction, where applicable, and aids, such as the presumption of early vesting and the presumption against intestacy and in favour of equality.
5. Then see whether any rule of law prevents a particular interpretation from being adopted.
6. Finally, and, I suggest, not until the disputed passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar words, rarely as binding precedents, since it has been well said that ‘no will has a twin brother’ ….”
13. These principles were accepted by both parties as being the relevant legal principles. I turn now to consider the application of these principles in this case.
Application of Principles
The First principle: Consider the immediately relevant portion of the will
14. The disputed bequest is very simply worded. It states:-
“I also give devise and bequeath to James Mullen Jr., son of my son, John, a small plot or piece of land of not more than half an acre to make up the site of his proposed new house should he require same.” (Emphasis added)
15. In my view, the words of the testatrix are clear. The clear intention of the testatrix was that she wanted to bequeath a small piece of land to her grandson. This piece of land was not to exceed half an acre. It was to be available to him if he should require it. The purpose of the bequest was to permit him “to make up the site”.
16. It is the words which are underlined above which, according to the defendant, mean that the bequest fails. The defendant’s argument in this regard is, that at the time the testatrix made her will, she knew that the plaintiff was building his own house. She had in mind, therefore, that she would leave him up to half an acre of land to make up a site for his proposed new house should he require same. The defendant submits that because the “proposed new house” has now been built, it therefore follows that the gift lapses. It is also submitted by the defendant that as the plaintiff has built his house it is clear that he does not require the relevant half acre.
17. In this regard, the defendant submits that the phrase “should he require same” is a phrase which must be given an objective meaning because of the use of the word “require”.
18. However the words “should he require same” constitute a subordinate clause. It is a conditional subordinate clause. The subject of the subordinate clause is “he” (i.e. James Mullen Jr.); the verb is “require” and the object of the clause is “same” (i.e. a small plot or piece of land of not more than half an acre”). It follows, therefore, because “he” is the subject of the clause that it is the plaintiff – and the plaintiff alone – who is the person who decides whether he “requires” any of the land. In other words, it is the plaintiff’s subjective assessment of whether he requires the land which enables the condition to be fulfilled.
19. Thus, in my view, there is no basis for the defendant’s argument that the word “require” implies an objective test. The error in this part of the defendant’s argument is to place too much emphasis on the verb “require” and to place no emphasis whatsoever on the subject of the clause.
20. But in order to take the defendant’s submission, at its height, I turn to consider firstly whether on a subjective assessment, the plaintiff “requires” the said plot and secondly, to consider whether on an objective assessment, the plaintiff requires the said plot.
21. However this in turn necessitates a consideration of the meaning of the word “require”. There was some debate about the exact definition of the meaning of the word “require”. The Oxford English definition of the word “require” is:-
“1. Need something for a purpose.
2. Instruct or expect someone to do something.
3. Make compulsory: the minimum required by law.
Origin Latin requirere.”
22. Thus, the Oxford English definition of “require” is “to need something for a purpose”. The question then becomes does the plaintiff “need” this half acre of land “for a purpose” either subjectively or objectively.
23. I turn first to consider whether the plaintiff, subjectively, needs the said plot. At para. 8 of his affidavit he says as follows:
“I say that in or about March 2010 I sought the testatrix’s permission to use a portion of her lands which adjoined my dwelling house as a garden. I say that my site is a particularly difficult one being very steep at the front and rear of my dwelling house and it was not possible to build up the site in order to create a garden area. Therefore I required the use of the testatrix’s land in order to create a garden for my use and the use of my young family.”
24. Moreover, the plaintiff has averred on affidavit on a number of occasions that he “required” the use of the lands in question in order to create a garden for his own use and the use of his young children; when he learned he was a beneficiary under the will, he confirmed to the executor that he did require the said lands; and he says at para. 11 that he has repeatedly asserted that he requires the said lands. It is clear therefore, on a subjective assessment, the plaintiff considers that he requires this plot.
25. It is also clear, in my view, from the evidence that, viewed objectively the plaintiff does indeed need this parcel of land for a purpose. That purpose is to provide a garden in which his young children can play. The plot in question is a small garden adjoining the house. The court has seen photographs of the house from all angles. The court has also had the benefit of the plaintiff’s direct evidence, when he was cross examined, and also his affidavit evidence. It is quite clear from the affidavit and oral evidence that the site is a difficult site and that there is no area suitable on the site for a garden for his children. That is why in 2010, he asked his grandmother, the testatrix, whether he could use some part of her land to create a garden for his children. The evidence is that she willingly consented, supported and encouraged her grandson in using her land as a garden for his children.
29. Indeed the plaintiff in an affidavit states that although he moved into his house in 2006, it still looked like a building site at that time and that he did not complete all the works associated with his house until 2011. He also says that in 2011, he was constructing a boundary wall around his house and he left a gap of approximately 16ft at the boundary wall adjacent to his grandmother’s land so that his children could access the land.
30. He also states at para. 18 of his affidavit:-
“I say that I have a small decked area built into a cliff at one gable end of my house and the other gable end (where the vegetable garden was located) is now the entrance to our house. I said that there is a 40ft drop in front of our house and it would, therefore, be completely unsafe for children to play there. I say that the other areas proposed by the defendant are unsuitable as they are located some distance and/or are not visible from my house and would therefore be unsuitable for use as a play area for small children. My septic tank and puro flow treatment module are situated to the front of my house at the lower level. I say that the only area in the vicinity of my house that is suitable as a play area are the testatrix’s land which we have been using as a garden and play area for my small children. I say that is why I requested my grandmother’s permission to use her lands as a garden.”
31. The plaintiff was also cross examined by counsel for the defendant. It was specifically put to him that the reason his grandmother had framed her bequest in that way (i.e. by the use of the phrase “to make up the site”) was because she was concerned about access to the site. The plaintiff however disagreed and said that there was no problem with access to the site. As there was no contrary evidence, I find as a fact that there was in fact no difficulty with access to the site. Moreover there was no evidence whatsoever that the testatrix ever thought there was a difficulty with access to the site.
32. The Plaintiff in cross examination also stated, in response to a question, that he did not have enough space in his site to have a garden. The plaintiff also gave evidence that there was no part of his current site on which he could put a garden. I therefore also find, as a fact, that there is no part of the plaintiff’s site on which it is suitable for him to create a garden.
33. Therefore, I find, as a fact, having listened to his evidence in cross examination that the plaintiff does indeed objectively “require” the relevant parcel of land “for a purpose” namely to provide a garden for his children and that there is no other area suitable on his land which could provide an alternative space for a garden.
34. There was also a dispute between the parties as to the meaning of the phrase “to make up the site”. The plaintiff submitted that this should not be construed as an entitlement to lands – only if they were required for the construction of the plaintiff’s house. The plaintiff submitted that a site consisted of more than a footprint of the dwelling house constructed on it. It might include an access road or driveway, an area for a septic tank and also a garden. The plaintiff also submitted that the phrase “to make up the site” should be construed as including lands required to service the house, (i.e. lands specifically utilised for the provision of a safe and suitable area on which a garden could be provided for the use and enjoyment of the plaintiff’s children and for the use and enjoyment of the plaintiff and his family in the normal conduct of family life).
35. The defendant, by contrast, sought to contend that the phrase “to make up the site” of his proposed new house referred to the fact if the plaintiff’s 1.2 acre site proved unviable for planning purposes, that the testatrix was making available to him additional adjacent land for building purposes. He says that at the time the testatrix made her will, the plaintiff was in the process of obtaining planning permission and that the plaintiff intended to build a house on the said land.
36. However, in my view, the defendant’s submissions are not well founded. On the facts of this case – and each case involving a will is applicable only to the facts of a specific case – this site was clearly always a difficult site. It did not cease to be a difficult site once the house was built on it. It was a difficult site to build the house on initially but it remains a difficult site because it is built into the rock on the hillside and also because it slopes very steeply at the front. It is clear, therefore, that there is no suitable space on the site for a garden. I am of the view, therefore, the intention of the testatrix was at all times that she intended to bequeath to her grandson, “a small plot of land up to half an acre should he require same to make up his site”. Given that the plaintiff used it as a garden with her consent for the last two years of her life, she clearly knew that the plaintiff needed this parcel of land to make up his site and to provide it with a garden.
37. It follows that his existing site is deficient in some respect (i.e. it is without a garden). To that extent, therefore, the plaintiff requires the additional land “to make up the site” of his proposed new house.
38. The defendant also seeks to argue that, because of the phrase, “his proposed new house”, and because the house has been built, the gift has lapsed. However, in my view, that submission also is not sustainable. The phrase “his proposed new house” was used by the testatrix because at the time she made her will the house had not yet been completed. It was at that stage “proposed”. The plaintiff gave evidence that the house was built in 2005 and that he and his wife moved into it in 2006. The plaintiff also gave evidence however that it was a building site for a number of years and indeed it only seems to have been completed in or about 2010. It then became the plaintiff’s new house. The fact that the house has been built does not invalidate the gift. Given that the will speaks from death, the testatrix must be taken to be referring to the plaintiff’s “new house”.
39. It is at this point that the relevance of s. 89 of the Succession Act becomes apparent (i.e. that the will speaks from death). The testatrix saw that the plaintiff’s house had been built between 2005 and her death in 2012, nevertheless the testatrix never sought to revoke or amend her will in any way. Moreover, when asked by the plaintiff, the testatrix readily assented to giving consent to the plaintiff to permit him to use that part of her lands adjoining his lands as a garden for his children. It is clear, therefore, at the death of the testator, she was in full knowledge of all the material facts in relation to this matter and she did not seek to amend or revoke her will in any way.
40. However even if it were not for this issue of the will speaking from death, given that the court must strive to give effect to the intention of the testator, I have no doubt that the intention of the testator was, at all times (i.e. at the time of the making of her will and thereafter up until the date of her death), to make a bequest to her grandson of up to half an acre should he require it to make up the site.
The Second and Third Principles: Look at the other material parts of the will/the scheme of the will.
40. The plaintiff also submits that the court should have regard to other provisions in the will and/or the general scheme of the will and that they support the conclusion set out above. The plaintiff makes the following arguments:-
(i.) The plaintiff submits that when one looks at the scheme of the will, the testatrix was concerned to perfect the title of de facto gifts she had made during her lifetime. The defendant had built a house on lands which he did not own and he occupied lands which he did not own. The testatrix devised these lands to him by her will. In a similar manner, the plaintiff used a garden on lands which he did not own, but he did so with her consent. Therefore the testatrix was essentially seeking to perfect the title of a gift she had made to her grandson in her will. I find this argument persuasive.
(ii.) In addition the testatrix gave land to her sons Marty and Thomas in such a way as to enlarge the sites of their respective houses. The plaintiff submits, therefore, that the testatrix was of the view that a house should have some surrounding land. The plaintiff submits that this re-enforces the interpretation advanced by the plaintiff. The testatrix lived beside the plaintiff and was aware of the difficulties of the site and how he had no garden. I also find this submission persuasive.
(iii.) The plaintiff also submits that the testatrix knew there was a difficulty with the plaintiff’s site and sought to gift him land to assist him. She had not known exactly what was required; she left it up to him to decide what he required up, to a maximum of half an acre. She wished to leave the balance of those lands to the defendant, her son. In structuring matters in this way, the plaintiff submits, the testatrix was trying to be fair to her son and to her grandson. I find this submission persuasive also.
The Fourth principle: Consider any applicable Rules of Constructions
41. I note that s.99 of the Succession Act provides as follows:
42. “If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.”
43. In my view the intention of the testator is clear from the words of the will. However insofar as there is any doubt in the matter, and in particular insofar as the defendant sought to lay considerable emphasis on the ambiguity of the phrases, “proposed new house” and “to make up the site” the consequence of the defendant’s interpretation is that the bequest would not be operative. In those circumstances, even if the bequest did admit of more than one interpretation, I am of the view, applying the statutory principle, that the interpretation according to which the bequest would be operative should be preferred. I would therefore conclude that the statutory presumption in favour of the validity of the bequest applies in this case.
The Fifth and Sixth Principles: These are not necessary to consider in this case.
44. EXTRINSIC EVIDENCE. It is also clear under s.90 of the Succession Act 1965 that extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of the will.
45. The scope and application of s.90 has been considered by the Supreme Court in Rowe v. Law [1978] I.R. 55 and O’Connell v. Bank of Ireland [1998] 2 IR 596 where the court construed the provision as permitting extrinsic evidence of intention only if there is an ambiguity in the will which cannot be resolved by construing the will.
46. Laffoy J. in In Re Rafter [2012] IEHC 239, in commenting on the extent of s. 90, stated as follows at para. 11 of her judgment:-
“The main focus of both counsel for the plaintiff and counsel for the defendant in their helpful written and oral submissions was on s. 90. The basis on which the Court can admit extrinsic evidence under s. 90 is succinctly summarised in the following passage from the judgment of Keane J., as he then was, with whom the other Judges of the Supreme Court concurred, in O’Connell v. Bank of Ireland [1998] 2 IR 596 (at p. 611):
‘There are thus two conditions which must be met before such evidence is admissible: it must assist in the construction of the will or resolve a contradiction and it must, in either event, show what the intention, in the particular context, of the testator was.’”
47. In this case insofar as there may an ambiguity in the will, then I can have regard to extrinsic evidence. In my view all the extrinsic evidence in this case, which assists in the construction of the will or which shows the intention of the testator, points to the conclusion that the testatrix intended to devise the small parcel of land (being her garden) to her grandson. This is so because:
a. She lived beside her grandson, his wife and their small children and was aware of his family circumstances.
b. She was aware of the difficulty of the site and the fact that there was no suitable area on the site for the plaintiff to have a garden.
c. She gave full consent to the plaintiff to use that part of her land which he did use as a garden for his children. She completely encouraged him in this regard.
d. She did this in the full knowledge from 2005 until 2012 when she died that the plaintiff’s house had been built and was being occupied. She also did so in the full knowledge that the house lacked a garden and that with young children the plaintiff needed a garden for the children to play in safely and without any serious risk that they might suffer an accident.
48. There is also an affidavit of Kathy Mullen who is the mother of the plaintiff. In her affidavit, she states as follows:-
“I say that in or about July/August 2004, whilst visiting the testatrix she told me that she made her will and that she had left her house to her three daughters and a garden to my son James, the plaintiff herein.”
49. She also stated at para. 6:-
“I say that in or about August 2011, when I was cooking her evening meal the testatrix told me that she was very grateful to me and wanted to give me something but I said don’t be silly. I said that the testatrix then said to me ‘you know I’ve looked after Digger’ and she laughed because she knew I didn’t like my son’s nickname. I said to her ‘oh you are very good’. I knew what she meant as she had mentioned it once previously.”
50. This appears to provide some evidence that the testator intended the bequest still to be operative in 2011.
Conclusion
50. I would therefore conclude that the bequest to the plaintiff is valid under the will, that the testatrix did intend to confer on the plaintiff the right to select a plot of land of up to half an acre from her lands immediately adjoining those of the plaintiff and that the plaintiff is entitled to a declaration in those terms.
Estate of Stanley
[2016] IEHC 8 Keane J.
Ruling of Mr Justice David Keane delivered on the 15th January 2016
Introduction
1. This is an application for orders setting aside a trust (“the trust”) on the basis that it is void for uncertainty. The trust came into being on the death of Mr. Thomas Heuston Stanley (“the settlor”), on the 30th of November 2012, in accordance with the terms of a will executed by him on the 18th of July 2002 (“the will”).
2. The application is made on behalf of Karen Stanley and Frances Stanley (“the applicants”), who are, respectively, the daughter and widow of the settlor.
Background
3. The will appoints the applicants, together with Mr. Donal Branigan, a solicitor, and Mr Vincent Murray, an auditor, as both executors under it and trustees of the trust that it creates.
4. The relevant portion of the will, which creates the trust at issue, is the following:
“2. I GIVE DEVISE AND BEQUEATH all of the property of whatsoever nature or wheresoever situate of which I stand possessed to my Trustees to hold upon the following Trusts:
(a) To pay all my debts, funeral and testamentary expenses.
(b) To hold as to income for my daughter KAREN, such income of the Trust to be paid within 28 days of it being received by the Trust.
(c) To hold as to Capital (subject to any appointments made by them) upon Trust for:
(i) My wife FRANCES STANLEY, my daughter KAREN and any spouses or issue of KAREN. Such of my, or those of FRANCES STANLEY, NEPHEWS AND NIECES as I or FRANCES STANLEY may from time to time add. All of whom are hereafter referred to as “My Beneficiaries” in such shares and at such times as my said Trustees may in their absolute discretion think fit and generally in such manner in all respects as my Trustees may in their absolute and uncontrolled discretion at any time or times or from time to time by deed or deeds revocable or irrevocable executed before the Vesting Day but without transgressing the rule against perpetuities appoint
(d) In default of an (sic) subject to such appointments as aforesaid my Trustees shall hold my Estate upon Trust to pay, apply or accumulate such part or parts of the income therefrom as they shall in their absolute and unfettered discretion see fit to or for the benefit of any one or more of my Beneficiaries to the exclusion of the other or others in such proportions and in such manner as my Trustees in their absolute discretion shall think fit PROVIDED that my Trustees may accumulate all or such parts of the income as an accretion to the Trust Fund by investing the same and resulting income therefrom in the manner hereinafter providing and my Trustees may apply the accumulation of any preceding year or years to or for any of the Beneficiaries in the same manner as such accumulation might have been applied had it been income arising from my Estate in the then current year and subject thereto my Trustees shall hold such accumulations and investments representing the same for such of my Beneficiaries as shall eventually become entitled to my Estate.
(e) Subject to the Trust’s powers and provisions herein declared and contained and to any and every exercise of such powers and Trustees shall hold the Trust Fund upon Trust for such of the Beneficiaries as shall be living on the Vesting Day and the issue then living of any such child or children who may have died before Vesting Day and if more than one in equal shares but so that such issue of a deceased child shall take equally between then as tenants in commonly only the share which their parent would have taken had he or she been living on the Vesting Day so that any part of the Capital of the Trust Fund appointed or advanced to any Beneficiary under the powers of aforesaid shall be brought to hotchpot or account in assessing such equal shares.
(f) The Vesting Day shall be the day on which will have expired one hundred years from my death.”
The present application
5. The applicants submit that clause 2 of the will establishes two separate trusts: a fixed trust under clause 2(b) and a discretionary trust under clause 2(c). They then argue that each of those trusts is void for uncertainty on various grounds. For reasons I will come to shortly, I do not propose to address those arguments in the present ruling, nor do I propose to address whatever argument there may be concerning whether the will creates two separate trusts (one fixed and one discretionary) or a single trust with both fixed and discretionary elements, and whether anything turns on that distinction.
6. The application is brought on very limited evidence. At several points in the analysis that follows, it will be evident that relevant information has not made available to the Court.
The capacity in which the present application is brought
7. As is evident from the foregoing, the first named applicant is the daughter of the settlor; an executor of his will; a trustee of the trust thereby created; and a beneficiary of the trust. The second named applicant is the widow of the settlor; an executor of his will; a trustee of the trust thereby created; a beneficiary under the trust; and the holder of a power conferred on her by the trust to appoint additional beneficiaries from the class of persons comprising her nieces and nephews and those of the settlor.
8. Moreover, although the applicants have not addressed the point, it seems tolerably clear that, should the trust fail (or be declared void, as the applicants argue it should be), the settlor’s estate would then fall to be distributed in accordance with the rules on intestacy, since the will contains no residuary clause. S. 67 (2) of the Succession Act 1965 provides:
“If an intestate dies leaving a spouse and issue-
(a) the spouse shall take two-thirds of the estate, and
(b) the remainder shall be distributed among the issue….”
Accordingly, it would seem that the applicants have an obvious personal interest in the question of the validity of the trust as the persons entitled to share directly (and, in all probability, exclusively) in the property the subject of the settlor’s estate, should the trust of which they are trustees fail. The applicants have not disclosed whether the first named applicant is the sole (or sole surviving) issue of the settlor. It may or may not be appropriate to draw an inference to that effect from the terms of the settlor’s will, whereby the first named applicant is the only child of the settlor identified and provided for.
9. In relation to the status of the applicants as beneficiaries of the trust, the first named applicant has averred that she is not now, nor has she ever been, married or in a civil partnership with any person, and that she has not now, nor has she ever had, any children. However, other than averring that she has reached her majority, the first named applicant provides no further information concerning her age or her personal circumstances. No evidence whatsoever has been laid before the Court concerning whether or not the settlor or the second named applicant exercised the power of appointment vested in each to add any nephew or niece as an additional beneficiary under the trust. Counsel, for the applicants informed the Court that, according to his instructions, no such appointment has been made to date but, as Counsel well knows, his instructions are not evidence.
10. In relation to the status of the applicants as executors of the settlor’s will, the first named applicant has sworn an affidavit exhibiting the grant of probate made on the 26th August 2013, whereby the will was admitted to proof and the administration of the settlor’s estate was granted by the Court to each of the applicants as two of the executors named in the will. In the same affidavit, the first named applicant has averred to the truth of the matters pleaded in the special summons. The special summons pleads that no income or capital has yet been put on trust but no explanation is forthcoming as to why that has not been done, nor is any other information provided concerning the present status of the administration of the estate.
The relevant duties of trustees
11. As the very learned author of Keane, Equity and the Law of Trusts in the Republic of Ireland, 2nd ed., Dublin, 2011, states (at para. 10.01 of that work):
“The first duty of a trustee who has accepted office is to acquaint himself with the nature of his trust. He must, accordingly, without delay, familiarise himself with the terms of the instrument creating the trusts and find out what property is subject to the trust. He is, thereafter, under a paramount duty to carry out the directions of the settlor in administering the trust.”
12. Earlier in the same work, addressing the topic of those who can be appointed trustees, the author states as follows (at para 9.02):
“A beneficiary may be appointed a trustee, but it is undesirable that he should be in any case where a conflict of interest is likely to arise. In practice, beneficiaries are frequently appointed, if for no other reason than that it is hard to find persons who are willing to act who are not going to benefit. This is perfectly lawful, but the possibility of a conflict of interest arising should always be borne in mind.”
13. It seems to me that the duty upon a trustee to avoid a conflict of interest is not in any sense narrowly confined to those cases where the conflict at issue is that between a person’s duties as trustee and his or her interests as a beneficiary. In Snell’s Equity, 32nd ed., London, 2010 (at para. 7-018), the authors cite, as the general principle governing conflicts between the duty and interest of a trustee, the following dictum from Bray v. Ford [1896] A.C. 44 (at 51):
“It is an inflexible rule of a Court of Equity that a person in a fiduciary position…is not allowed to put himself in a position where his interest and his duty conflict.”
The position of the trustees on the present application
14. It is a remarkable feature of the present application for orders declaring the trust void that the applicants are themselves trustees under the will, subject as such to a paramount duty to carry out the directions of the settlor (which directions the present application would, if successful, negate) and subject also to an obligation not to permit any conflict to arise between the personal interest of each (whether as a beneficiary under the trust or as a person entitled to the trust property should the trust fail) and the duties of each as a trustee (including the paramount duty just described).
15. The position of the other trustees is scarcely less troubling. The applicants’ solicitor has sworn an affidavit in which he avers that he served a copy of the proceedings on each of the other two trustees, Mr Branigan and Mr Murray, and to which he exhibits the letter that he received from each in reply. Both of those letters comprise a single sentence, amounting to the laconic recital in each instance that the trustee concerned has “no objection” to the applicants’ claim. In neither of those letters, nor anywhere else in the evidence before the Court, does either of those trustees explain why he has adopted a position of disengagement or how he can reconcile having doing so with the proper discharge of his responsibilities as trustee.
The position of Mr Branigan
16. This application turns on the proper construction of the settlor’s will. Indeed, the applicants contend, by reference to the arguments they make, that they can surmount the high hurdle of persuading the Court that it is entirely impossible to place a meaning on the will that would prevent the trust that it creates from being void for uncertainty.
17. That test of impossibility derives from the following statement of Budd J. in Kilroy v. Parker [1966] IR 309 (at 320):
“The difficulties in interpreting a disposition which is ambiguously expressed are not enough to render the disposition void for uncertainty. To be void for this reason it must be utterly impossible to put a meaning on it.”
18. In the subsequent case of O’Byrne v. Davoren [1994] 3 IR 373 (at 382) Murphy J. commented on that test as follows:
“the significance of the judgment of Budd J….is the determination with which he sought to salvage the validity of the particular testamentary trust notwithstanding the difficulties created by the manner in which the testatrix had expressed her intentions. Again I could respectfully agree that the learned judge was entirely correct in that course and as far as possible I believe that a similar approach should be taken in the present matter.”
19. S. 90 of the Succession Act 1965 states:
“Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.”
20. The decision of the Supreme Court in Rowe v. Law [1978] IR 55 makes clear that, under s. 90, extrinsic evidence will be admissible where: (a) there is ambiguity on the face of a will; and (b) it is necessary to ascertain the intention of the testator.
21. Accordingly, if the applicants can make any headway with their argument that there is some ambiguity in the terms of the will creating the trust, then that will in turn, at least arguably, open the door to the admission of extrinsic evidence of the settlor’s intentions to the extent that it is appropriate or necessary to consider them in order to resolve that ambiguity.
22. In circumstances where Mr Branigan is named as an executor and trustee under the will; where the copy of the will admitted to probate has been certified by his firm; where the grant of probate was extracted by his firm; and where the will appears to have been witnessed by two persons who describe themselves as legal secretaries and who each give as their address that of Mr Branigan’s firm, it seems to me very possible, if not probable, that Mr Branigan may be in a position to provide some relevant extrinsic evidence in that event.
23. In view of the duties and obligations of Mr Murray and Mr Branigan as trustees; the potential conflict of interest on the part of the applicants who are the only other trustees; and the possibility that Mr Branigan, in particular, may be in a position to provide evidence relevant to the present application, it seems to me entirely inappropriate that the involvement of Mr Murray and Mr Branigan in these proceedings should be limited to the provision by each of a bare statement that he does not object to the grant of an Order setting aside the trust.
24. On the contrary, in order to properly exercise the supervisory jurisdiction vested in this Court, I require each of the trustees to apprise the Court of the steps that he or she has taken to date both to become acquainted with the nature of the trust and to carry out the settlor’s directions. On the limited evidence so far presented, a disturbing (though, perhaps, misleading) impression has been created that the instant application arises, not in the context of an attempt by the trustees to obtain some necessary clarification of the meaning of the trust instrument in order to enable the proper discharge of their duties, if that is possible, but rather in the context of an attempt by some or all of the trustees to repudiate those duties by impugning the validity of the trust that imposed them. It is probably superfluous to observe in that context that, while the role of a trustee can be an onerous one (especially in a case like this where, atypically, the trust instrument contains no remuneration clause), there are mechanisms available whereby a trustee who is unwilling to act may disclaim his or her appointment or, if he or she has accepted it, may seek to be discharged from that position.
Procedural issues
25. I have already referred to the failure of the applicants to state whether they have brought these proceedings in their capacity as trustees or in some other capacity, such as that of the persons directly entitled to the trust property in the event that the trust is found to be invalid.
26. Order 4, rule 9 of the Rules of the Superior Courts (“RSC”). provides as follows:
“If the plaintiff sues or the defendant is sued in a representative capacity, the indorsement shall show in manner appearing in such of the forms in Appendix B, Part I, as shall be applicable to the case, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued.”
27. Turning to Appendix B, Part I of the RSC, it contains the following precedent:
“Trustee
The plaintiff’s claim is as [or the plaintiff’s claim is against the defendant as] trustee under the will of AB….”
28. Were the Court to infer from the trustees failure to plead that they sue in their capacity as trustees that they do not sue in that capacity, then a number of questions follow.
29. The first question is who is to represent the trust? The applicants have brought the present proceedings ex parte. Order 54, rule 1 of the RSC provides in material part that:
“…[T]he trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as…cestui qui trust under the trust of any deed or instrument…may take out a special summons for relief of the nature or kind specified in Order 3 (1) to (7) inclusive.”
30. Order 54, rule 2 provides in relevant part that, where the summons has been taken out by the executors or trustees, the persons to be named as defendants in proceedings covered by the foregoing rule shall be, at least in the first instance, one or more of those persons claiming an interest in the trust as beneficiary (or, in the words of the rule, as ‘cestui que trust’). Since, in the unusual circumstances of the present case, that rule would give rise to the unhelpful, if not absurd, result that the applicants would be suing themselves, it is obviously necessary to move beyond ‘the first instance’ in seeking to ensure the effective and efficient administration of justice in this case.
31. Order 54, rule 2 (2) of the RSC provides that where a summons of the kind at issue is taken out by a person other than an executor or trustee, the appropriate defendants at first instance are the executors or trustees. This rule, while not of immediate application in the circumstances of the present case, demonstrates what many would argue is the self evident proposition that the interests of the trust should be represented in the face of any challenge to the validity or operation of that trust.
32. In advancing the quest for an appropriate legitimus contradictor in the unusual circumstances of this case, some assistance can be gleaned from the case law. Kilroy v. Parker [1966] IR 309 was a will construction suit brought by the executors of that will in that capacity. Very properly it seems to me, the defendants in that case included the sole surviving brother of the deceased (presumably, as the person entitled to benefit on an intestacy, should the trust completely fail) and two separate classes of potential beneficiary under the trust. It seems to me that the pertinent principle demonstrated by the approach adopted in that case is that different classes of beneficiary (or, in my view, different beneficiaries within the same class) may have different interests necessitating separate representation on an issue of construction.
33. In the subsequent case of O’Byrne v Davoren [1994] 3 I.R. 373, again the plaintiff brought a will construction suit in his capacity as executor. The first defendant was joined in the proceedings as representative of the potential beneficiaries under a residuary bequest and the second defendant was joined as representative as those who would benefit in the event of an intestacy.
34. The obvious difficulty in this case is that the persons purporting to prosecute the present will construction suit ex parte are persons among the trustees and executors; among the potential beneficiaries (indeed, it would seem, the only extant potential beneficiaries); and comprise the persons who, it appears, would be entitled to the trust property should the trust fail.
35. Order 15, rule 8 of the RSC provides as follows:
“Trustees, executors, and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons; but the Court may, at any stage of the proceedings, order any of such persons to be made parties either in addition to or in lieu of the previously existing parties….”
36. It seems to me that, as the foregoing rule suggests, it would be quite improper to issue proceedings impugning the validity of a trust in a non-trustee capacity without joining the other trustees of the relevant property or estate. While the applicants in this case have put the other trustees informally on notice of the present ex parte application, that cannot be sufficient since it leaves the applicants’ claim without a legitimus contradictor and deprives the wider class of potential beneficiaries (comprising any person who may yet come within that class other than the applicants and, thus, will come within a separate class of beneficiaries without any evident residual or other claim to the trust property) of any representation of its interests in the face of the applicants’ claim to orders that would, if granted, extinguish those interests.
37. On the other hand, if the applicants are purporting to prosecute these proceedings in their capacity as trustees, then that would give rise to a number of problems, quite apart from their obvious breach of the rule requiring them to include an express plea to that effect. First, a question would then arise concerning whether or not it is permissible for the applicants as trustees to bring proceedings challenging the validity of the trust in respect of which they are more aptly the appropriate defendants.
38. Second, even if it were accepted that some circumstance might be imagined in which it may be appropriate to allow a trustee to bring such proceedings, it is difficult to see how the present action could fall properly within that category.
39. Third, the present proceedings have not been brought in the form appropriate where a trustee or trustees require the resolution of a question or questions arising upon the construction of a trust instrument.
40. Order 4, rule 4 of the RSC, provides (in relevant part):
“The indorsement of claim … on a special summons shall be entitled “SPECIAL INDORSEMENT OF CLAIM”, and shall state specifically and with all necessary particulars the relief claimed and the grounds thereof. The indorsement of claim on … a special summons shall be in such one of the forms in Appendix B, Part III, as shall be applicable to the case, or, if none be found applicable, then such other similarly concise form as the nature of the case may require.”
41. Precedent No. 2 in Appendix B, Part III, section 2 of the RSC, recites as follows:
“Construction
The plaintiff’s claim is as the executor and trustee of the said will mentioned in the title hereof of XY,deceased, for the determination of the following questions arising (in the administration of the estate, and) upon the construction of the said will of the said testator, and in the events that have happened, viz (Set out questions in form which will enable them as far as possible to be answered “yes” or “no”) and that the cost of the proceedings may be provided for.”
42. There is a stark contrast between proceedings constituted in the manner just described and the present proceedings. Here, the applicants do not present disinterestedly particular questions for the consideration of the Court to enable them to carry out their duties as trustees, in so far as may be possible in accordance with the terms of the trust instrument. Instead, they seek a very particular construction of the trust instrument rendering it void for uncertainty, in support of an application for specific terminal reliefs, namely, Orders declaring the trust void, and they purport to do so, against the background of an apparent conflict of interest (whereby they would directly benefit in their personal capacity from such Orders), in the absence of any legitimus contradictor. It is difficult to see how, in the exercise of its supervisory jurisdiction, the Court could permit the proceedings as presently constituted to proceed in that way.
Conclusion
43. For the reasons set out above, I have come to the conclusion that the presence before the Court of Mr Murray and of Mr Branigan in the capacity of each as trustee of the trust at issue is necessary to enable the Court effectually or completely to adjudicate upon and settle the questions involved in the present proceedings. Accordingly, both in the exercise of this Court’s supervisory jurisdiction and pursuant to the terms of Order 15, rule 13 of the RSC, I hereby Order that Mr Vincent Murray and Mr Donal Branigan be joined or added as defendants to these proceedings in the capacity of each as trustee of the trust at issue and I will adjourn the present application to afford the applicants (or plaintiffs, as it seems to me those parties should more properly be described), a reasonable opportunity to take the appropriate consequential steps in accordance with the RSC, if the present proceedings are to be maintained. It is for that reason that I do not propose to adjudicate at this stage on the application as it was presented to the Court.
Corrigan v Corrigan
[2016] IESC 56
Judgment of Ms. Justice Laffoy delivered on 5th day of October, 2016
Factual and procedural background
1. The High Court proceedings which are the subject of this appeal (Record No. 2006 No. 64SP) were initiated by a special summons issued on 21st March, 2006 seeking to have the will of Christopher Corrigan (the Testator) construed by the Court.
2. The Testator made his last will and testament (the Will) on 23rd September, 1997. He appointed as his executors three of his sons, named as “Eamonn, Owen and Sean”, all of whom are parties to this appeal. Having directed his executors to pay his debts, funeral and testamentary expenses as soon as possible after his death, he went on to make “the following dispositions of my property”. Three clauses follow, Clause 1 being the clause which the High Court was asked to construe.
3. Clause 1 of the Will in its entirety provides as follows:
“I have 21 statute acres of land in Folio 13658 Co. Westmeath and I have been advised that the said land or part thereof is zoned for residential and/or industrial development. I direct my Executors to hold the lands upon the following trusts: –
(a) To allow my son Sean to hold and enjoy the profits of the lands for his own benefit until there is acquisition of my lands for the purposes mentioned above. In such event, the net proceeds of the sale of my lands shall be divided equally amongst all my children and any section of the farm not so acquired shall become the absolute property of my son Sean”.
The Testator was survived by five children, his sons Eamonn, Eoin (otherwise Owen) and Sean and by another son, Thomas, and a daughter, Angela.
4. The remainder of the Will is to be found in Clause 2 and Clause 3. Clause 2 deals with what the Testator referred to as “my residence situate on half an acre registered on Folio 18004 County Westmeath”. As to that property, Clause 2 provides:
“. . . I direct as follows –
(a) If any one of my three Executors wish with the consent of the other two, to own the said house, then my Executors can vest it in such son so as to make him full owner of same but on terms that the son who gets the house will sell his own residence and the net proceeds of such sale shall be paid to my Executors and it is to be then divided amongst my other four children equally.
(b) If no agreement is reached by my three Executors and if none of them desire to own my residence, then it can be sold by Public Auction or by Private Treaty as my Executors shall decide and the net proceeds of sale in such event, I bequeath to my children, Eamonn, Owen, Thomas and Angela in equal shares.”
Clause 3 deals with the Testator’s residuary estate and provides:
“I leave my residuary estate of every kind to my son Owen for his use and benefit”. While no issue arises in the proceedings as to the proper construction of either Clause 2 or Clause 3 per se, the provisions of those clauses have been outlined because one of the grounds of appeal is that the High Court failed to interpret the Will as a whole to give effect to the Testator’s intentions. Taking a broad view of it, the Will as a whole demonstrates that the obvious objective of the Testator was to treat his five children fairly. However, it must be emphasised that the function of the Court in construing Clause 1 of the Will is to ascertain the Testator’s intention from the words used by him in the Will.
5. The Testator died on 5th March, 2000. On 10th January, 2002 probate of the Will issued to two of his sons whom he had named as executors, Eamonn (the Personal Representative) and Eoin (otherwise Owen) (the Residuary Legatee), the third son named as executor, Sean (the Appellant), having renounced his right to probate. Subsequently, when the issue as to the construction of Clause 1 of the Will arose, the Residuary Legatee, with the leave of the High Court, renounced his right to act as executor of the estate of the Testator. The position thereafter was that the Personal Representative was sole personal representative of the unadministered estate of the Testator. The dispute in relation to the testamentary disposition of the property the subject of Clause 1 of the Will, which is hereinafter referred to as “the farmlands” to distinguish it from the house and lands the subject of Clause 2, was a dispute in which, as counsel for the Personal Representative submitted, the Appellant and the Residuary Legatee were “the real legitimus contradictors”. The Personal Representative, in that capacity, properly initiated the proceedings to have Clause 1 of the Will construed by the High Court.
6. The affidavit evidence put by the Personal Representative before the Court addressed two factual matters which were called in aid in relation to the construction of Clause 1 of the Will.
7. The first factual matter was the instructions given by the Testator to the solicitor who drafted the Will, Kevin P. Wallace (Mr. Wallace), a solicitor in the firm N. J. Downes & Co. When the grounding affidavit of the Personal Representative was sworn, Mr. Wallace was deceased. However, the Personal Representative exhibited –
(a) what were described as “the attendance notes (in hand-written and typed form) dated 26th August, 1997”, and
(b) a letter to the Testator from Mr. Wallace, and
(c) “a draft copy of the will showing one alteration by the [Testator] to its contents”.
8. Those exhibits disclose the following:
(a) The attendance notes record that, in giving instructions to his solicitor on 26th August, 1997, the Testator identified his children, two of whom, who are not named as executors in his will, Thomas and Angela, were then in Australia. In relation to the Appellant, he informed the solicitor that he was involved in panel-beating and used the Testator’s shed. The Testator described his assets as –
(i) “Farm”, which was described as “zoned for residential”, and
(ii) the house, and
(iii) a credit union account.
The “Farm” and the house were described as being on two separate folios. The instructions given as to the dispositions the Testator intended to make separately itemised the “Farm”, the residence and contents, and the residue. In relation to the “Farm” the instruction given is recorded as follows:
“Farm to Sean, but if any is sold for residential or commercial purposes then it’s to be divided between all children equally. Sean can keep what is not required for residential purposes, all 5 to share in such sale money.”
(b) The letter from the solicitor to the Testator was dated 28th August, 1997. It obviously enclosed a draft will. The Testator was asked to check it carefully and “to drop in” to the solicitor when convenient.
(c) The alteration made by the deceased to the draft will was made to the part of Clause 1 which had been drafted as follows:
“. . . I have been advised that the said land or part thereof will be zoned for residential and/or industrial development.”
The word “will” was crossed out and the word “is” was put in manuscript over it. In fact, as is clear from Clause 1 of the Will in its final form, as quoted above, which was executed just short of a month later, the words “is zoned” were substituted for the words “will be zoned” in the Will.
9. The second factual matter was the zoning status of the farmlands at the date of the Will, at the date of the Testator’s death, and when the proceedings were proceeding through the High Court. In an affidavit sworn on 30th April, 2007 by Geraldine Fahy, Planning Consultant, it was averred that –
(a) the farmlands were zoned agricultural as at 23rd September, 1997, the date on which the Testator executed the Will, and as at 5th March, 2000, the date of the Testator’s death; and
(b) the farmlands were rezoned in 2005 under the Robinstown Local Area Plan, with the result that –
(i) an area measuring 0.229 acres was un-zoned;
(ii) an area measuring 16.850 acres was zoned special district; and
(iii) an area measuring 3.409 acres was zoned for open space.
Ms. Fahy explained that the area zoned “special district” was intended to be “a business and enterprise district” and residential development was not permitted in that area.
The questions posed in the special summons
10. In order to understand the approach adopted in the High Court by McGovern J. (the trial judge) in his judgment delivered on 2nd November, 2007 ([2007] IEHC 367) in identifying the issues and in addressing them, it is helpful to consider the questions in respect of which the Personal Representative seeks answers as outlined in the indorsement of claim in the special summons. There are fifteen questions in all, some of which are linked, which can be summarised as follows:
(a) The first three questions are linked, the first being whether the devise in Clause 1 was conditional upon the lands being zoned for residential and/or industrial development, the second and third questions being based on the assumption that the answer to that question would be in the affirmative.
(b) The fourth question and the fifth question are linked, in that the fourth question is whether the statement in the Will concerning the zoning of the land, in the events which had happened, was correct and the fifth, based on the assumption that it was, asks whether the statement was of no dispositive effect or, alternatively, what (if any) effect it had on the disposition.
(c) The sixth to tenth questions are linked, the sixth question being whether the disposition to the Appellant was subject to a condition that there be an “acquisition of my land for the purposes above”. The succeeding questions addressed both the assumption that the answer would be in the affirmative and also the assumption that the answer would be in the negative.
(d) The eleventh, twelfth and thirteenth questions are linked. The eleventh asks whether the disposition of the farmlands created “a determinable fee simple” to the effect that the farmlands vested in the Appellant “until there is an acquisition of my lands for the purpose mentioned above”. The twelfth question, based on the assumption that the answer to the eleventh would be in the affirmative, asks whether the event by which the fee simple would determine was void. The thirteenth question, which was based on the assumption that the answer to the eleventh question would be in the negative, asks “what nature and extent of interest” did the Appellant acquire in the farmlands. In essence, the answers to the eleventh and twelfth questions were determinative of the outcome of the hearing of the special summons in the High Court.
(e) The fourteenth question is whether the disposition of the farmlands to the Appellant was void for offending the rule against perpetuities.
(f) Finally, the fifteenth question asks whether “[b]y reason of the terms of the bequest, giving rise to failure thereof,” the farmlands form part of the residuary estate of the Testator.
The judgment of the High Court
11. In his judgment, the trial judge, having explained the factual background and the task facing the High Court, that is to say, answering the questions raised on the special summons, made some general observations in relation to the statutory provisions governing the interpretation of a will and, in particular, the application of s. 90 of the Succession Act 1965 (the Act of 1965), which provides that “extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will”. Having outlined the test for allowing extrinsic evidence to be received in accordance with s. 90, as laid down by this Court in Rowe v. Law [1978] I.R. 55, the trial judge stated (at para. 13):
“I am satisfied that the clause 1 of the bequest contains a lack of clarity and that there is ambiguity contained therein. I am also satisfied that the admission of extrinsic evidence is permissible in this case. There is extrinsic evidence to be found in notes taken by the [T]estator’s solicitor upon taking instructions for the drafting of the will.”
The trial judge also outlined certain general principles which apply to the construction of a will, including the guidelines suggested by Lowry L.C.J. in Heron v. Ulster Bank Limited [1974] N.I. 44 at p. 52, which he quoted and which have frequently been adopted by the courts in this jurisdiction, and have come to be known as “the Lowry Principles”.
12. The trial judge then addressed, under the heading “Construing the ‘conditions’”, the issues raised by the first ten questions posed. He stated (at para. 18) that he had to decide whether the statement in Clause 1 was a declaration of the Testator’s belief (which was erroneous) or whether it constituted a condition attaching to the bequest, and, if it was a condition, he had to decide whether it was a condition precedent or a condition subsequent. He stated (at para. 19) that he took the view that “if it is a condition it must be a condition subsequent”. He also made the point that, if a condition subsequent is found to be void, the beneficiary takes the bequest freed from the condition, so that if the bequest in Clause 1 “is a condition subsequent and is found to be void for uncertainty or incapable of taking effect”, the Appellant would take the bequest free from the condition. In the light of the trial judge’s final conclusions, those statements are obiter.
13. In the summary of his findings, the trial judge reiterated (at para. 27) that, if Clause 1 contains a condition, then it is a condition subsequent. That finding was immaterial because the trial judge went on to state (at para. 28):
“I am satisfied, however, that the bequest to the [Appellant] in clause 1 does not contain a condition. The use of the words ‘allow’ and ‘until’ cause me to take the view that the bequest to the [Appellant] is in the nature of a determinable fee simple. I am satisfied that at common law the Testator cannot, in his will, create a determinable fee simple to the [Appellant] and then provide that, in the event that a determining event occurs, the land is to pass to someone else. A testator cannot create a gift over to third parties after a determinable fee. On that ground, the entire limitation and the entire bequest fails.”
In relation to the penultimate sentence in that quotation, the Appellant, on the appeal, drew this Court’s attention to the comment made on that finding in Pearce and Mee on Land Law 3rd Ed. (Dublin, 2011) (at p. 84). The authors state:
“This decision overlooked the fact that the common law remainder rules did not apply to gifts by will, which are governed by the less rigorous equitable rules, although the fact that there was an ambiguity in the description of the determining event would still have led the gift to fail.”
14. Irrespective of what was stated in para. 28, in fact, the trial judge in the next paragraph (para. 29) stated:
“I am satisfied that the determining event specified in clause 1 of the bequest is void for uncertainty and it follows therefore, that on this basis, the entire limitation and bequest fails.”
That led to the further conclusion (at para. 31) that the farmlands fall into the residuary estate of the Testator.
15. Understandably, having regard to the sequence in which the questions were posed in the special summons, the trial judge considered whether the disposition in Clause 1 was subject to a condition and, if it was, the nature of the condition. However, given the trial judge’s ultimate conclusion that what was created in Clause 1 was “a determinable fee simple”, as has been noted previously, the specific findings in relation to a fee subject to a condition were immaterial to the outcome of his construction of Clause 1.
16. The trial judge’s analysis of Clause 1 and the presence of uncertainty therein followed on from his consideration as to whether the disposition in Clause 1 was subject to a condition and, if so, whether it was a condition precedent or a condition subsequent. He went on (at para. 21 et seq.) to consider the extrinsic evidence which he had found (in para. 13 quoted earlier) was admissible. Having considered the evidence of the instructions given by the Testator to his solicitor, the draft furnished by the solicitor to the Testator and the Testator’s slight amendment of the draft, the trial judge stated (at para. 23):
“All in all the position concerning the land is anything but clear. What does seem to emerge from the instructions and the bequest in the will is that it was the intention of the testator to let his son Sean hold the land if it remained in agricultural use but that if the land or part thereof was rezoned and sold or acquired at a significantly greater value than agricultural land then all his children should share in that windfall and Sean would retain such part of the land (if any) as was not rezoned. That is as much as can be said from looking at the will and the extrinsic evidence to be found in the solicitor’s notes.”
17. Immediately following those observations, the trial judge went on to state that it seemed to him that a great deal of uncertainty remained, pointing to the fact that it was not clear what was the zoning of the farmlands as understood by the Testator. In any event, it was clear at the time of the judgment, on the basis of the evidence in the form of Ms. Fahy’s affidavit which was before the High Court, that the farmlands were not zoned as understood by the Testator or as “advised” to the Testator and, although part of the land had been rezoned since his death, it had not been zoned for residential or industrial development. Apart from that uncertainty, the trial judge addressed the problem created by the use of the word “acquisition” of the farmlands for residential and/or industrial development, pointing to the fact that it is unclear whether what was envisaged was the lands being compulsorily acquired for those purposes or whether the Testator intended that, as he believed the farmlands were zoned for those purposes, the farmlands should be sold and the proceeds divided among the children. The trial judge then elaborated on the problem created by the words of the Will as follows (at para. 24):
“The problem is that the will does not say that and appears to ‘allow’ Sean to remain on the land and enjoy the profits of same until they are acquired. When would they be acquired? Could the other children of the deceased compel the executors to sell the land? I take the view that if clause 1 of the bequest contains a condition, that the condition is vague and uncertain.”
18. It was at that stage that the trial judge went on to consider the possibility that the estate intended to be created in Clause 1 was a determinable fee. In that context he stated that, if the determining events are void for uncertainty or otherwise, the entire limitation fails. He did not re-address the issue of uncertainty but, in my view, it is reasonable to conclude that, when he made the finding (at para. 29 quoted earlier) that the determining event specified in Clause 1 is void for uncertainty, he was doing so by reference to the various matters he had addressed earlier in the context of whether, if the disposition created a conditional fee, the condition was void for uncertainty.
19. Finally, before summarising his findings, the trial judge stated (at para. 26) that, while the authorities suggest that one should look at the will as a whole, in this case the Will as a whole does not offer much assistance in construing Clause 1.
Grounds of appeal
20. The notice of appeal filed by the solicitors then on record for the Appellant on 12th December, 2007 set out nine grounds on which it was alleged that the trial judge had erred in law and in fact. It was submitted on behalf of the Residuary Legatee that two of the grounds were not advanced in the High Court and should be struck out, that is to say, ground (1), in which it is contended that the trial judge had failed to vindicate the property rights of the Testator and his children pursuant to Article 40.3.2 and Article 43.1.2 of the Constitution, and ground (9), in which it is contended that the trial judge’s construction of the Will was incompatible with s. 117 of the Act of 1965 and repugnant to the Appellant’s constitutional rights pursuant to Article 40 and 43 of the Constitution. The Appellant, who is a qualified and practising lawyer and who appeared in person on the hearing of the appeal, did not in fact pursue those grounds and, accordingly, it is unnecessary to consider them. The remaining grounds are that the trial judge erred –
(i) in holding that Clause 1 of the Will did not contain a condition;
(ii) in holding that Clause 1 created a determinable fee;
(iii) in holding that Clause 1 “was made” while the Testator acted under a mistake of fact;
(iv) in holding that the bequest in Clause 1 was void and thus denying the Appellant of any share of his late father’s estate;
(v) in failing to give words drafted by the solicitor their legal and technical meaning;
(vi) in admitting illegible hand-written unendorsed attendance notes that contained factual errors as extrinsic evidence; and
(vii) in not adopting the “armchair” principle, thereby failing to interpret the Will as a whole to give effect to the Testator’s intentions.
21. In his submissions on the appeal, the Appellant invokes certain provisions of the Land and Conveyancing Law Reform Act 2009 (the Act of 2009), in particular –
(a) s. 16, which abolished certain common law rules, for example, the rules known as “the common law contingent remainder rules”,
(b) s. 17 which defines the scope of s. 16, and which, the Appellant submits, citing Wylie on The Land and Conveyancing Law Reform Act 2009: Annotation and Commentary (Dublin, 2009), introduced an element of retrospectivity, and
(c) s. 18 which deals with trusts of land.
In this context, the Appellant does not allude to the observations of Pearce and Mee quoted earlier (at para. 13). The Act of 2009 came into force on 1st December, 2009, that is to say, over two years after the decision of the High Court against which the Appellant appeals. The position of the Personal Representative, which is endorsed by the Residuary Legatee, is that, as the trial judge did not find the disposition in Clause 1 void for offending any of the rules relating to future interests which were abolished by the Act of 2009, the Appellant’s reliance on the Act of 2009 is not understood and it is misconceived. Further, it is submitted that the law applied by the trial judge was not altered by the Act of 2009. I am satisfied that the reliance by the Appellant on provisions of the Act of 2009 is misconceived and that the provisions of the Act of 2009 invoked by the Appellant do not bear on any of the issues which this Court has to determine on the appeal, to which I now turn.
Issues on the appeal
22. In the light of the findings of the trial judge and the remaining grounds of appeal, the issues on the appeal can be netted down to three issues. First, the core issue is whether the Testator intended that the disposition of the farmlands created in Clause 1 would be a determinable fee, as the trial judge found, as distinct from a fee simple upon condition. Secondly, if he did, it is necessary to consider whether, as a matter of law, as was found by the trial judge, the determining event is void for uncertainty. Thirdly, if the determining event is void for uncertainty, the remaining issue is to whom do the farmlands pass in accordance with the provisions of the Will as a whole and, in particular, do they fall in the residuary estate, as the trial judge held. Before addressing those issues, it is appropriate to make a number of general observations in relation to the application of the provisions of the Act of 1965.
23. First, s. 89 provides as follows:
“Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.”
No contrary intention appears from the Will and, accordingly, Clause 1 must be construed having regard to the circumstances which prevailed on 5th March, 2000.
24. Secondly, in applying s. 90 and in determining whether the extrinsic evidence adduced on behalf of the Personal Representative, which has been outlined earlier, is admissible to show the intention of the Testator, as was found by the trial judge, the test to be applied is the test laid down by this Court in Rowe v. Law [1978] I.R. 55. The test as identified in the judgment of Henchy J. (at p. 72) has –
“. . . the double requirement of
(a) showing the intention of a testator, and
(b) assisting in the construction of, or explaining any contradiction in, a will.”
(Emphasis as in original)
25. Thirdly, s. 91 provides that, unless a contrary intention appears from the will, any estate comprised in any devise contained in the will which fails or is void or is otherwise incapable of taking effect, shall be included in any residuary devise contained in the will. No contrary intention appears in the Testator’s Will.
26. Finally, the interest of the Testator in the farmlands at the date of his death was a fee simple interest and he was registered as full owner of the lands on Folio 13658, County Westmeath. Section 94 of the Act of 1965 provides:
“Where real estate is devised to a person (including a trustee or executor) without any words of limitation, the devise shall be construed to pass the whole estate or interest which the testator had power to dispose of by will in the real estate, unless a contrary intention appears from the will.”
By virtue of the operation of s. 94, the fee simple passed to the Personal Representative on the death of the Testator. The issues of construction which arise relate to the beneficial interest or interests which the Testator intended to create in Clause 1 in the farmlands held by the Personal Representative on trust.
Determinable fee or Conditional fee: the law
27. In outlining the relevant legal principles applicable to this very arcane area of law, it is convenient to follow the format adopted in the most recent text on land law in this jurisdiction relied on by the parties, that is to say, Wylie on Irish Land Law 5th Ed. (Dublin, 2013).
28. In classifying the types of fee simple interests in land, Wylie identifies two main categories: a fee simple absolute and a modified fee simple, the latter category consisting of two types, namely, a determinable fee, and a fee simple upon condition.
29. As is explained by Wylie (at para. 4.47), a determinable fee is a fee simple which will determine automatically on the occurrence of an event which may or may not happen. In the case of a determinable fee the determining event is specified by the original grantor of the estate. The grantor retains some interest in the property, which is called a possibility of reverter, i.e. the possibility of acquiring an estate in the future. A fee simple upon condition, or a conditional fee, on the other hand, as is pointed out by Wylie (at para. 4.49) is a fee simple to which is attached a condition subsequent, which may cause the estate to be brought to an end. As Wylie points out (at para. 4.47), often it is a difficult matter of construction whether the estate is a determinable fee or a fee simple upon condition, emphasising also that the consequences and incidents of the estates are different. Wylie goes on to consider the distinction between the two estates, first by reference to how one recognises which estate is created by the wording used in the relevant deed or will, and then identifying the different rules applying to the two types of modified fee.
30. As to identifying whether a particular document creates a determinable fee or a fee simple upon a condition, Wylie points out (at para. 4.50) that this is largely a matter of the precise wording of the document. From a theoretical standpoint, the position is clear: in the case of a determinable fee the words describing the determining event are part of the words of limitation, i.e., they delimit the estate granted. In the case of a fee simple upon a condition, however, the words containing the condition are not part of the words of limitation, but rather are independent words of condition, which confer a right of entry on the grantor or his successor, which must be exercised to determine the fee simple. In relation to deciding the effect of the particular words used in a particular document, which Wylie acknowledges is not always an easy problem to solve, he states as follows (at para. 4.50):
“The courts have adopted over the years some ‘rules of thumb’ whereby particular words or phrases are taken to indicate one type of estate rather than another. Thus words like ‘while’, ‘during’, ‘until’ and ‘as long as’ tend to be interpreted as words of limitation creating a determinable fee; words like ‘provided that’, ‘on condition that’ and ‘but if’ are usually taken to mean words of condition.”
Attorney General v. Cummins& Ors. [1906] 1 I.R. 406 is cited as authority for the statement that the first group of words referred to tend to be interpreted as words of limitation creating a determinable fee. That authority will be considered later.
31. Turning to the distinguishing features in relation to determination (that is to say, the end point) of each of the modified fees, Wylie points out (at para. 4.51) that, in the case of a determinable fee, when the specified event occurs, the fee simple comes to its natural determination according to the words of limitation, and the possibility of reverter takes effect automatically to confer the fee simple absolute on the grantor (or his successor, if he has since died). On the other hand, in the case of a fee simple upon a condition, the occurrence of the specified event, or satisfaction or breach of the condition, merely gives the grantor a right of entry so as to forfeit the grantee’s estate.
32. Of more particular significance for present purposes is Wylie’s commentary on the approach of the courts to a determinable fee and a fee simple upon condition having regard to matters of public policy. As Wylie points out (at para. 4.54), the courts will treat as invalid any condition which is illegal, immoral, a violation of constitutional rights under the Constitution or which otherwise contravenes what they regard as public policy. Moreover, it is clear that a condition may be declared void for uncertainty. If a condition subsequent is void for uncertainty, or as being contrary to constitutional rights or public policy, the fee simple becomes a fee simple absolute and, as is explained, only the condition fails and the fee simple itself remains in effect, provided it is conveyed with appropriate words of limitation. However, the contrary is the position in the rare case of a limitation in a grant of a determinable fee being held void as against public policy. In such case, the words of limitation themselves are defective and so fail to pass the fee simple; the whole grant is ineffective and the grantee is left with nothing. Although not expressly mentioned by Wylie in this context, by analogy the same principle obviously applies where the determining event is void for uncertainty. It is convenient at this juncture to consider the only authorities to which this Court has been referred in which a finding of a determinable fee was made by a court.
33. While the decision in Attorney General v. Cummins dates from 1895 it was reported in 1906 as an addendum to Switzer v. Rochford [1906] 1 I.R. 399. The dispute in Attorney General v. Cummins concerned the effect of letters patent whereby King Charles II granted to the Earl of Castlehaven specified quit rents “to hold the same to the [E]arl, his heirs and assigns, till he or they should receive and be paid the sum of £5,000 sterling at one entire payment”. The application before the court in 1895 was an application by the Attorney General seeking that the Crown should be at liberty to redeem the quit rents by paying £5,000 and that the Crown be at liberty to pay that sum into court. In his judgment Palles C.B. held that the estate created was a determinable fee. He stated as follows (at p. 406):
“The grant passed the quit rents in fee subject to a condition determining that fee upon payment by the Crown at any time of the sum of £5,000. Under such a grant the grantee, until the happening of the determining event, has the whole estate in him, and the old Common Law doctrine was undoubtedly that a possibility of reverter, a possibility coupled with an interest, remained in the grantor, and that the fee of the rents would, upon performance of the condition, revert to the Crown. ‘If,’ says Plowden (p. 557), ‘land is given to a man and to his heirs so long as he shall pay 20s. annually to A, or as long as the Church of St. Paul shall stand, his estate is a fee-simple determinable, in which case he has the whole estate in him, and such perpetuity of an estate which may continue forever, though, at the same time there is a contingency which when it happens will determine the estate’.”
34. There was a dispute in Attorney General v. Cummins as to whether the common law doctrine which was outlined in that passage still prevailed, notwithstanding the modern rule against perpetuities. The court rejected the arguments advanced on behalf of the defendants that the rule against perpetuities applied and defeated the estate of the Crown. In a passage on which the Appellant relies, Palles C.B. stated (at p. 409):
“Now, there is not a trace in the books of any rule which limited the period during which the determination of an estate by condition should take effect, and it is abundantly clear that the modern rule could not have applied, because the donor took not by way of new limitation, but by the determination of the estate given.”
35. One other authority in which a finding of a determinable fee was made has been put before the Court, but that authority – In re King’s Trusts (1892) 29 LR Ir. 401 – is more renowned for the observations of Porter M.R. than for the finding on the facts. There the testatrix by her will bequeathed an annuity of £50 per annum to each of the five children of her deceased brother and directed that the said several annuities should be payable half-yearly from the date of her decease, for their respective lives, or until any of them should marry, and that, on the death or marriage of any of the said children of her deceased brother, the annuity to any such child should cease and determine. It was held that the proviso determining the annuities on death or marriage was a limitation and not a condition subsequent or defeasance. In the oft-quoted passage (at p. 410) Porter M.R. stated:
“The case is an instance of the very unsatisfactory state of the law on this question. It is little short of disgraceful to our jurisprudence that in reference to a rule professedly founded on considerations of public policy, a gift of an annuity to AB for life, coupled with a proviso that if he married the annuity should cease, whether there be a gift over or not, gives AB a life estate, whether he marries or not; while a gift to CD until he marries or dies, with a gift over, is at an end if CD should marry. The distinction is intelligible to a lawyer; but no testator except a lawyer could be expected to understand it, much less to have regard to it in framing his will. We must, however, take the law as we find it.”
36. In Pearce and Mee (op. cit.) (at p. 78) that passage is referred to in the context of stating that the distinction between a determining event and a condition subsequent is very narrow. The authors also refer in that context to Re Sharp’s Settlement Trusts [1972] 3 All ER 151. There, delivering judgment in the Chancery Division of the English High Court, Pennycuick V-C referred to the description “in an Irish case” of the distinction as “little short of disgraceful to our jurisprudence” and he continued (at p. 156):
“I am bound to say that according to modern ideas this criticism appeals to me. However, the distinction is well established and must be accepted so far as it is comprehensible.”
Allowing Wylie the last word on the observations of Porter M.R., it is suggested (at para. 4.50) that the Master of the Rolls seems to have had in mind wills, which the court usually interprets more liberally than conveyances inter vivos, but the author goes on to state:
“But however nonsensical the distinction may appear to the layman the fact remains that much depends upon it. The legal system has devised different rules with respect to the two estates . . .”
Determinable fee or Conditional fee: application of the law to Clause 1 of the Will
37. Reading Clause 1 of the Will, being, to use the words of Lowry L.C.J., “the immediately relevant portion” thereof, in his words as “a piece of English”, in the first step of the procedure advocated by him, with a view to deciding “if possible, what it means”, Clause 1 starts with an introduction or preamble which contains a description of the property the subject of the disposition in Clause 1, the farmlands, and a statement of what the Testator had been advised as to the zoning status of all or part of the farmlands. On a plain reading of the introduction, it was clearly intended merely to describe the property being disposed of under Clause 1 and it was not intended to be a dispositive provision. The actual disposition of the farmlands follows. As regards the beneficial interest or interests intended to be created, it is helpful to consider the disposition by reference to the two elements embodied in it.
38. The words contained in Clause 1 intended to create the beneficial interest or interests follow the direction given by the Testator to the Personal Representative to hold the farmlands upon “the following trusts”. The first element directs the Personal Representative to allow the Appellant “to hold and enjoy the profits of the [farmlands] for his own benefit until” the happening of a specified event. Those words are properly construed as having been intended to be words of limitation, not in a technical sense, but in the sense that they were intended to delimit the duration of the Appellant’s beneficial interest. Accordingly, those words must be construed as having been intended to create a determinable fee. Despite the approach adopted in the grounds of appeal, on the hearing of the appeal on 14th July, 2016, the Appellant accepted that the words in Clause 1 do create a determinable fee, but he argued that the determining event is not void for uncertainty.
39. It was not argued by the Appellant on the hearing of the appeal that the Court should look to the instructions given by the Testator to his solicitor for assistance in the construction of that element of Clause 1. Indeed, as outlined earlier, it was asserted in the grounds of appeal that the trial judge had erred in admitting the attendance notes. Being conscious, however, of the fact that the instruction given by the Testator to his solicitor, as recorded by the solicitor, was that the farmlands were to go to the Appellant, but that was qualified by the happening of an event which was introduced by the phrase “but if”, which traditionally has been treated as a phrase giving rise to a condition, for completeness, I propose to consider whether the Court should have regard to the wording of the instruction in the attendance notes under s. 90 of the Act of 1965 in construing the first element. That raises the question whether the second requirement in the test set out in Rowe v. Law is met. In other words, do the contents of the attendance note assist in the construction of, or explain any contradiction in, that element of the disposition? There is no suggestion of there being, and there is not, a contradiction in the first element of the beneficial provisions of Clause 1, which is being considered. The question remains whether the contents of the attendance notes would assist in the construction of Clause 1. In my view, they would not. The element of Clause 1 which is being addressed is open to only one construction: that the interest thereby granted to the Appellant would endure until the happening of the specified event. To substitute the phrase “but if” for the word “until” in Clause 1 would amount to more than the construction of the will. It would amount to a re-writing of it, which is not permissible. Accordingly, the first element of the beneficial provisions of Clause 1 must be construed as being intended to create a determinable fee.
40. However, it remains to consider the second element of the beneficial provisions, which is the remainder of Clause 1, and which defines the determining event by reference to the words which follow the word “until”. The issue of construction which arises in relation to the second element is whether the trial judge was correct in finding that the determining event is void for uncertainty.
Determining event void for uncertainty?
41. There is no doubt but that the Testator prefaced the disposition of the farmlands in Clause 1 by an equivocal and incorrect statement of fact in relation to the zoning status of the farmlands. The affidavit of Ms. Fahy established that on 5th March, 2000 neither all of the lands registered on Folio 13658, County Westmeath nor any part thereof was zoned “for residential and/or industrial development”. However, on a plain reading of the words of Clause 1 of the Will, the determining event was not related to the existing or future zoning of the farmlands. It was specifically related to and dependent on “acquisition” of the farmlands “for residential and/or industrial development”. As the Appellant put it on the hearing of the appeal, it was the acquisition, not the zoning, of the farmlands which had the “triggering effect”. The trial judge in his judgment highlighted the problem created by the use of the words “acquisition” and later the words “not so acquired” in that context. He rightly pointed out that it is unclear whether the Testator had in mind the farmlands being compulsorily acquired for the purposes mentioned or whether he had in mind the children of the Testator, other than the Appellant, being in a position to compel the executors to sell the farmlands. Another question which arises from the use of those words is whether the Testator intended the determining event to be a single acquisition or, possibly, a series of acquisitions.
42. This Court has been referred to quite a number of authorities in which consideration was given to whether part of a limiting or provisional clause in a will was void for uncertainty, the clause in issue in most of the cases, predictably, being a condition subsequent. As Wylie points out (at para. 4.54), where non-compliance will involve forfeiture of an already vested estate, courts will require sufficient certainty that it can be seen precisely and distinctly from the date of the condition coming into operation what events will cause a forfeiture. The earliest authority cited by Wylie for that proposition, Clavering v. Ellison (1859) 7 HLC 707, is frequently cited and the following passage from the opinion of Lord Cranworth (at p. 725) is frequently quoted:
“I consider that, from the earliest times, one of the cardinal rules on the subject has been this: that where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine.”
43. By analogy, where a fee simple is to be automatically determined by the happening of a specified determining event, as a matter of construction, when that event may happen must be ascertainable from the beginning, precisely and distinctly.
44. Reading the words which come after the word “until” and define the determining event in Clause 1, no certainty can be gleaned, whether conceptually or otherwise, as to when the determining event may occur, and, adopting the words of Pearce and Mee quoted above (at para. 13) there is ambiguity in the description of the determining event. Apart from uncertainty as to what constitutes “acquisition”, the uncertainty is aggravated by the fact that in the last sentence in Clause 1 there is uncertainty as to how frequently the Testator intended that a determining acquisition could occur. The precision and distinctness from the beginning as to the happening of the determining event, which Lord Cranworth considered necessary, is definitely absent. Accordingly, having regard to the words used in the Will, the provision in relation to the definition of the determining event in Clause 1 is void for uncertainty and the entire disposition is thus rendered void.
45. For completeness, I would add that the instructions given by the Testator to his solicitor, as recorded in the attendance notes, do not explain any contradiction as to when the determining event would occur, nor do they assist in construing that element of the beneficial provisions of Clause 1, with a view to ascertaining when the determining event intended by the Testator would occur. On the contrary, as the words used in the attendance notes to record the instructions differ from the words deployed in the Will, consideration of the instructions in the attendance notes adds to, rather than eliminates, the uncertainty in the Will. The following examples illustrate that. First, rather than the words “acquisition” and “not so acquired” in the Will, the attendance notes contain the word “sold”. Secondly, whereas the Will refers to acquisition for “residential and/or industrial development”, the attendance notes refer to the farmlands being sold for “residential or commercial purposes”. Thirdly, while the Will refers to any section of the farmlands “not so acquired” becoming the absolute property of the Appellant, the attendance notes refer to the Appellant keeping “what is not required for residential purposes”. The Testator, having had the opportunity to consider the draft will which accompanied the letter of 28th August, 1997, made one single amendment to Clause 1 of the draft, which has been outlined earlier. Having regard to all of the foregoing factors, it cannot be concluded that the instructions received by the solicitor from the Testator, as recorded in the attendance notes, assist in any way in clarifying the Testator’s intention as to when the determining event provided for in Clause 1 would occur and they are irrelevant to the construction of Clause 1.
46. Similarly, a number of other matters raised in the submissions which are irrelevant to the Court’s task, which is the proper construction of Clause 1 of the Will, will now be considered.
Other matters raised
47. It would appear to be the case that, when he made the Will, the Testator’s understanding as to the zoning status of the farmlands at that time was both unclear, as the reference to “the said land or part thereof” in Clause 1 indicates, and erroneous, the source of which it is not possible to identify. Even if the farmlands had been zoned “for residential and/or industrial development” on 5th March, 2000, the uncertainty as to when the determining event was intended to occur, having regard to the words used in Clause 1 of the Will, would still subsist. Notwithstanding that it is submitted on behalf of the Personal Representative on the appeal that it was open to the trial judge to decide that the devise of the farmlands in Clause 1 of the Will was predicated on a mistaken belief of the Testator that the lands were zoned in a particular way and that, as a result, the entire bequest should fall, I find it unnecessary to determine that issue, having decided to follow the route taken by the trial judge and deal with the issues identified earlier (at para. 22).
48. The Appellant’s contention that the appeal should be allowed on the ground that the trial judge failed to interpret the Will as a whole so as to give effect to the Testator’s intentions does not stand up to scrutiny. Apart from Clause 1, the only provisions of the Will which manifest an intention on the part of the Testator to dispose of his assets are Clause 2 and Clause 3. Clause 2 relates solely to the Testator’s residence and Clause 3 relates solely to his residuary estate. There is nothing in either Clause 2 or Clause 3 which gives any indication as to the Testator’s intention in relation to the disposition of the farmlands. Accordingly, each of those clauses is immaterial to the proper construction of Clause 1.
49. Two matters were also adverted to at the hearing of the appeal to which this Court can attach no significance whatsoever in ascertaining the proper construction of Clause 1.
50. The first is an averment which was contained in the replying affidavit sworn by the Residuary Legatee on 10th July, 2006, in which he averred that should the Court find that –
“. . . the bequest of [the farmlands] forms part of the residue of the [Testator’s] estate, I say that I am prepared to execute a Disclaimer in respect of the residuary clause and I say that then, accordingly, that part of the residue will be divided between the deceased’s children equally, which I believe was the intention of the deceased.”
In his written submissions, the Appellant suggested that that averment was “perhaps inappropriate”, which proposition was rejected on behalf of the Residuary Legatee. The Court’s task is to construe the Will, and, in particular, Clause 1, in accordance with well established principles. The professed intention of the Residuary Legatee, dependent on one outcome of the construction of the Will, irrespective of how well motivated, is wholly immaterial to the performance by the Court of its function and has had no bearing on the conclusions I have reached as to the proper construction of Clause 1.
51. The other matter disclosed to this Court at the hearing, which is of no materiality to the issues this Court has to decide, is the fact that since the hearing in the High Court, Westmeath County Council has made a compulsory purchase order to compulsorily acquire part of the farmlands comprising 0.693 hectares for the purpose of a link road, the compulsory purchase order having been confirmed by An Bord Pleanála on 10th December, 2008 and the Personal Representative having in 2013 entered into an agreement with Westmeath County Council in relation to the compensation to be payable. That development has had no bearing on the conclusions I have reached as to the proper construction of Clause 1. As has been emphasised earlier (at para. 23), the Will must be construed as at the date of the death of the Testator, that is to say, 5th March, 2000.
Consequence of findings
52. The consequence of the findings that Clause 1 created a determinable fee but the determining event is void for uncertainty is that the devise of the lands registered on Folio 13658, County Westmeath contained in Clause 1 has no effect. Therefore, the devise intended to be created in Clause 1 being incapable of taking effect, by virtue of s. 91 of the Act of 1965, those lands fall into the residue and are held by the Personal Representative on trust for the Residuary Legatee.
Order
53. I would propose that there should be an order dismissing the Appellant’s appeal. I think that it would be prudent if the order were to include declarations to the following effect:
(a) that the intention of the Testator by the words used in Clause 1 of the Will was to create a determinable fee in relation to the lands registered on Folio 13658, County Westmeath;
(b) that the determining event which the Testator intended to apply to the determinable fee is unclear and imprecise and that the determining event is void for uncertainty; and
(c) that the Personal Representative holds the said lands upon trust for the Residuary Legatee.
As declarations in the foregoing terms address of the all relevant issues on the construction of the Will, I consider it unnecessary for this Court to answer all of the questions posed in the special summons.