Intestacy – No Will
Cases
Re Lefroy; Williams v. Shuel,
High Court, May 6, 1997
Judgment of Mr. Justice Morris delivered the 6th day of May, 1997 .
1. This is a Construction Summons brought for the purpose of construing the last Will and Testament of Harry Lefroy, deceased, late of Cambri, Killaloe, County Clare dated the 10th October, 1922 and one Codicil thereto dated the 10th January, 1993. The Testator died on the 2nd January, 1935. His Will and Codicil were admitted to probate on the 10th April, 1935. The Applicants are the present Trustees of the Will.
2. By his Will and Codicil the Testator, having made a number of bequests, directed that his residuary estate be sold by his Trustees and invested and he directed that the income therefrom be paid to his wife during her life and after her death as to one moiety thereof to pay the income thereof to his sister, Hester Margaret Oulton, for her life and after her death “upon trust to divide such moiety into twelve equal shares and to divide such shares among the children of Hester Margaret Oulton in the following proportions, that is to say, to her son Gerald six shares, to her son Ralph three shares, to her three daughters, Dorothy, Noel and Beatrice one share each”.
3. The Testator then proceeded to deal with the second moiety and he directed that the Trustees were “to pay the income thereof to my sister, Dorethea O’Grady Lefroy, during her life and after her death upon the same trusts for the said Hester Margaret Oulton and her children as are hereinbefore declared concerning the other moiety”.
4. By Clause 13 of the Will the Testator declared that the share of his residuary estate:-
“which is hereinbefore expressed to be given to each of my said nephews and nieces, children of my said sister, Hester Margaret Oulton, shall not vest absolutely in him or her but shall be retained by my Trustees and held by them upon the trusts as follows, namely:-
(a) the income thereof shall be paid to such nephew or niece during his or her life.
(b) from and after his or her decease, such share and the income thereof shall be held upon trust for all or any of the children or child of such nephew or niece who being male shall attain the age of 21 years or being female shall attain that age or previously marry and if more than one in equal shares as tenants in common.”
5. Clause 13(c) of the Will provides:-
“In the event of the failure or determination of the trusts hereinbefore declared concerning the share of my residuary estate hereby given to any niece or nephew of mine, the share of such niece or nephew including any share accruing to him or her by virtue of this present provision shall go and accrue to the others or other of my said nephews or nieces to whom my residuary estate is hereinbefore given, if more than one in the same share or proportion to which my residuary estate is hereinbefore made devisable and be added to and devolve with their his or her original share or shares.”
6. On one interpretation, that being advanced by Mr. Brady, S.C., on behalf of the Applicants, the Will provided that the five nieces and nephews, that is to say Gerald, Ralph, Dorothy, Noel and Beatrice took no more than a life interest in the income but the respective shares in which they enjoyed the income dictated the share of the residuary estate which would ultimately pass to their children. It is Mr. Brady’s submission that the Will makes no provision for the events which have in fact happened in this case, namely, that the three surviving “nieces and nephews” namely, Ms. Dorethea (otherwise Dorothy) Oulton, Mr. Ralph Oulton and Ms. Noel Meta Oulton all died unmarried and without issue and that the Will failed to provide for this eventuality and there was accordingly a partial intestacy.
7. On the other hand it is submitted by Mr. Farrell, S.C., that it is clear that the Testator intended that the ultimate benefit should vest in his grand-nieces and nephews and that on the death of any of the five nieces or nephews without issue the share that his or her children would have enjoyed should pass and vest in the grand-niece or nephew of another niece or nephew who being a male should attain the age 21 years or being a female should attain that age or previously marry.
8. In determining this issue, I have regard to two authorities. The first is a judgment of Mr. Justice Barrington delivered on the 26th June, 1980 in the case of the Will of Patrick O’Toole, deceased (unreported Volume 2, 1980 p.2095) in which Mr. Justice Barrington draws attention to what he described as the “Fundamental Rule” in approaching the interpretation of a Will. It is, he says “that one must attempt to ascertain and give effect to the intention of the Testator”. He cites with approval Dickson J. in Robinson -v- Moore , 1962/63 Irish Jurist Reports, page 29 when he says:-
“Many decisions were cited in the arguments on this point and it is clear from them that there is no general or indeed substantial support for any rule which could be stated in such general and unqualified terms. It is impossible to reconcile the cases on the basis of such a rule but it is not impossible to reconcile them on the basis of a rule less generally stated and more in accordance with fundamental principles in the interpretation of Wills of endeavouring to ascertain and give effect to the intentions of the Testator.”
9. In O’Toole’s case, Mr. Justice Barrington was unable to say “what the Testator’s wishes would have been in the tragic events which have happened” and therefore notwithstanding the Courts disinclination to find an intestacy was driven to the conclusion that in the instant case there was a partial intestacy.
10. The second and more authoritative decision, given that in 1980 Mr. Justice Barrington was a Judge of the High Court, is the decision of the Supreme Court in Henry Curtin, deceased, 1991 2 I.R. 562.
11. At p.573 O’Flaherty J. said as follows:-
“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 dwellinghouse had not been sold in his lifetime.”
12. He goes on to cite with approval, Porter M.R. in Re. Patterson, deceased, Dunlop -v- Rear , 1899 I.R. 324 when he says:-
“It is a duty of a Court of construction to ascertain, if it be possible, what the Testator really meant from the language he had 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 is 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 intention, it must be necessary to ‘do violence’ (as an imminent Judge once expressed it) to the language used. The thing to be ascertained is what was the man’s Will.”
13. However, O’Flaherty J. at p.573 went on to repeat the warning given to Judges when construing a Will. He said:-
“A Judge is to thread 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.”
14. In Curtin’s case O’Flaherty J. found that the two injunctions, i.e., to find out the intention of the Testator but at the same time not to make the Testator’s Will for him, were on a collision course. One was that the Court was not entitled to make the Will for the Testator but on the other hand there is a requirement that effect should be given to the intention of the Testator if at all possible.
15. O’Flaherty J. went on to do the letter and with this decision Chief Justice Finlay and McCarthy J. agreed.
16. In the present case in Clause 13(c) the Testator made provision for the failure or determination of the trusts “concerning the share of my residuary estate hereby given to any niece or nephew of mine”. He provided that that share should “go and accrue to the others or other of my said nephews and nieces to whom my residuary estate is hereinbefore given.
17. I am left in no doubt whatsoever that the scheme envisaged by the Testator was that should one of his five nephews or nieces fail by reason of death or otherwise to enjoy the benefits acquired under the Will, then the share allocated to that nephew or niece should be devisable among the surviving nephews or nieces and should pass on their death to their sons who reach the age of 21 years or their daughters who marry before that time. I am satisfied that it was never his intention to die intestate insofar as such a share was concerned. I am also satisfied that it was the Testator’s intention that if a niece or nephew should die leaving no children, the children of other nieces and nephews should benefit notwithstanding that his or her parent was dead as they would have done on his or her death had they been living at the date when the niece or nephew died without issue.
18. I am confirmed in my view that the Testator did not intend to die partially intestate by the fact that one of the persons who would fall to benefit on a partial intestacy is Mr. Ian Lefroy, son of Mr. Alfred Lefroy, brother of the deceased. In Clause 6 of the Will the Testator specifically provided that his Trustees should set aside £1,000 and pay the income thereof to Mr. Ian Lefroy during his lifetime and after his death to the benefit of his son or sons who attain the age of 21 years or his daughters who attain that age or marry. It seems singularly unlikely to me that the Testator having specifically provided for Mr. Ian Lefroy in this manner would have intended that a further benefit accrue to him upon a partial intestacy.
19. Accordingly, being in no doubt as to what the wishes and intentions of the Testator were, I answer the questions in the special summons as follows:-
1.(a) (i) Yes
(ii) Yes
1.(b) Does not arise
1.(c) Yes
1.(d) Does not arise
2. Does not arise
Re Kenny; Roberts v. Kenny,
High Court, March 10, 1998, Geoghegan J. GEOGHEGAN J:
1. This is an application brought by one of two co-Executors of Ann Kenny, deceased, and by certain beneficiaries under her Will against the other co-Executor and major beneficiary under her Will for the determination of certain questions of construction arising from the Will and for certain other directions. Let me state at the outset that in my view the Will is well nigh impossible to construe with any degree of certainty and it seems to me almost inconceivable that the Testatrix, no matter how well advised she was by the Solicitor, could ever have properly understood its implications. However, the Will has been admitted to probate and no question of its validity arises. I must therefore do the best I can in construing it.
The Will was drafted for the deceased by her Solicitor. I cannot imagine that any Solicitor would have drawn up such a Will unless, as I believe to be the case here, that he thought that there would be no problem in reaching agreement between all the relevant parties as to how the estate was to be administered in accordance with the Will. But by the same token the Solicitor for the deceased must have realised or certainly if he did not do so, ought to have realised upon a moment’s reflection that if in the event there was any dispute as between the Executors or indeed between the beneficiaries, the Will was inevitably going to have to end up being construed by the High Court with consequent unnecessary cost to a relatively small estate. The Plaintiff Executor who is the First named Plaintiff in the proceedings is quite properly in my view not prepared to allow the estate be administered in the manner desired by the Defendant Executor and his Solicitor who is also the Solicitor who acted for the Testatrix without getting the protection of a Court. The necessity for this clearly arises from a defectively drawn Will.
It is only fair to say at this stage that the justification put forward by the deceased’s Solicitor for drafting the Will in the way he did was to achieve tax avoidance but it is clear from correspondence which he himself has entered into that he is none too confident himself as to how the Will would be interpreted or as to the legal effect of it.
The estate of the deceased comprised for the most part of a house, the contents of the house, a car and some superannuation monies. The Testatrix, after making a charitable request of #200, gave the following direction:-
“All the rest of my property of every kind and description which I die possessed of including my house and any other assets which I may have, I direct my Executors to invest same in my brother Francis for the duration of his life and thereafter the residue to be divided equally between my following cousins:-
(a) Flannan Roberts, Junior, Ennis.
(b) Catherine Roberts, Junior, Ennis.
(c) Eamonn Roberts, Junior, Ennis.
(d) Joseph Hernon, Ballinasloe.
For the purpose of clarification I hereby declare that my said brother Francis shall be entitled to buy, sell, convert any or all of the said assets in any manner in which he sees fit and to sign any document regarding same in his own singular name without regard to the restrictions on sale or reinvestment contained in either Settled Land Acts or the Trustee Acts and further the said Francis Kenny shall be entitled to perform any act or sign any document in his own name disposing or effecting any such re-conversion without the necessity of acting through or with any other Trustees as provided for in the Settled Land Acts, and further that the said Francis Kenny shall not during his life be accountable in any way for any breaches of the said trust or misappropriation of any of the said assets.”
The house of the deceased has been sold and effectively all, or certainly almost all o the assets of the deceased are now in money form. The Special Summons seeks the determination by the Court of the following questions:-
A (i) Is the Defendant entitled to an absolute estate in the Estate of the deceased?
(ii) Is the Defendant entitled only to a life estate in the Estate of the deceased?
(iii) If he is entitled only to a life estate, is he then, as the tenant for life, entitled to have any monies, assets or proceeds of sale of assets of the said estate vested in his sole name?
(iv) Are the Second, Third and Fourth named Plaintiffs with Joseph Hernon entitled to a remainder interest in the Estate of the deceased?
A further set of questions are asked in the Special Summons and which read as follows:
B. (a) Are the expressed terms of the Will sufficient to exempt the Defendant from various provisions of the Settled Land Acts and Trustee Acts?
(b) Is the Defendant bound by the restrictions of sale and/or reinvestment contained in the Settled Land Acts and Trustee Acts?
(c) If the answer to question A(ii) is the affirmative, is the Defendant, as tenant for life of the estate, accountable for any breaches of trust or misappropriation of assets notwithstanding the expressed terms of the Will?
(d) May the Defendant sign documents in his own singular name?
The Court is then requested to make such further Order or directions as might seem fit and also to compel the Defendant to furnish a statement of account of the estate monies.
Returning to the residuary devise and bequest in the Will, I would say that I would have no difficulty in construing it if it had come to an end after the word “Ballinasloe”. I would have been puzzled by the use of the unorthodox word “invest” but I could not have come to any conclusion other than that it was intended to mean the same thing as the word “vest”. I would not have had any difficulty either with construing the word “residue”. That is a word which normally has a very definite meaning in the context of a Will. If the residuary clause in this Will had ended at the point which I have indicated there would be no good reason to give the word “residue” any different meaning from its normal meaning. In other words it would have to be construed as being shorthand for the expression used further up, ie, “the rest of my property of every kind and description which I die possessed of”. However, the addendum in the clause which ironically commences with the words “for the purpose of clarification” in fact totally confuses the meaning of the residuary gift. Having regard to that so-called “clarification”, the residuary clause as a whole is undoubtedly open to the construction that the Testatrix intended to permit that the Settled Land Acts and Trustee Acts could be wholly disregarded and furthermore that the Defendant, in relation to his life interest in the property, would be entitled with impunity to dissipate the assets leaving nothing at all for the four named cousins who were to benefit after his death. This latter part of the residuary gift not only raises difficult questions of construction but raises questions also as to the extent to which, if at all, the Settled Land Acts can be ignored. Indeed there may even be a more fundamental question involved here as to whether a settlor setting up a trust can direct the Trustees to commit any breach of trust which they like including dissipation of the assets without being accountable to the beneficiaries.
As the law relating to successive gifts of realty is quite different from the law relating to successive gifts of personalty, I think that in construing this Will I should in the first instance deal with the house only which was freehold registered land. In this connection it is immaterial in my view that the house has in fact now been sold. Whatever the trusts were attaching to the house, all the same trusts now apply to the net proceeds of sale. This would seem to me to be so irrespective of whether the capital monies arising from the sale are technically capital monies arising under the Settled Land Acts or not. If they can be said to have arisen under the Acts then by virtue of Section 22(5) of the Settled Land Act, 1882, the capital money is held in the same manner and for the same estates and interests as if it was the land. There may be a doubt here as to whether the monies are capital monies under the Act in view of the fact that the sale was in a sense an executor’s sale but it would seem to me that at any rate under general equitable principles, the trusts and/or rights attaching to the monies can be no different from those attaching to the house which those monies are the proceeds of. By Section 53 of the Settled Land Act, 1882, the tenant for life is a trustee for the remainder man. That trust arises by operation of statute and I do not think that it can be removed by Will. It is of course true that in general, powers of a tenant for life under the Settled Land Acts can be extended by the settlor but cannot be cut down. This does not mean, however, that the testator can effectively direct that the Acts are not to apply at all. In relation to the house and therefore the proceeds thereof, I must interpret this Will as conferring a life interest only on Francis Kenny, the Defendant. As such he will be a Trustee of the monies, the proceeds of the sale of the house and of any property into which those proceeds are applied for the four named cousins of the Testatrix but provided that he acts bona fide and with due regard for the protection of the assets, he will not be liable to restrictions under the Acts such as investment restrictions etc. It is clear that the Will intends to confer on the Defendant as liberal a set of powers as possible. The question of his possible accountability for breach of trust having regard to the clause in the Will relating to this matter cannot be answered now as a moot. It may well be that having regard to the Will, he would be exempt from liability for say negligent misappropriation of assets but I could not construe the Will as exempting him from liability for deliberate dissipation. However, this whole question can only be decided if and when it arises as a problem in any ultimate claim brought by the beneficiaries after the death of Francis Kenny.
I now turn to the personalty. In correspondence, the Solicitor for the Defendant who was also Solicitor for the Testatrix has argued that as there cannot be successive estates in personalty, the residuary gift of the personalty to Francis Kenny is absolute and not just for life. This does not seem to me to be a correct statement of the law and I am sure that it would have bewildered the late Ann Kenny had it been said to her. It is quite true that there cannot be a vested remainder interest in personalty which is not for any purpose deemed to be realty but there can be successive interests if they have either been created in the form of a trust or if irrespective of whether a trust is created or not they are created by Will. The difference however is that the person entitled after the death of the owner for life has merely an executory interest which becomes simply a chose in action after the death and is not in any sense in the meantime a vested remainder interest. The legal position is neatly summarised in Volume 22 of the 1st Edition of Hallsbury (which pre-dated the 1925 English property legislation) at p 413 as follows:-
“Successive interest in personal chattels may be created by Will without the interposition of Trustees. In such case, however, the ulterior donee, during the life of the first holder, does not take a present or vested interest, and, if he predeceases the first holder, the executory limitation does not take effect.”
It follows therefore that in the case of the personalty, the gift to any one of the cousins lapses if that particular cousin predeceases Francis Kenny. But that would not be so in the case of the house or the proceeds of sale of the house. It is true to say that in the case of what are called “consumables” there cannot be successive interests even by Will and the person given them for life is effectively given an absolute interest. I can find no authority as to whether money would be regarded as a “consumable” but it would seem to me that it clearly would not. What is meant by “consumable” is something like a crop or food. In the light of these principles how do I construe the residuary gift insofar as it relates to the personalty? The Will itself is far from clear and therefore I was entitled in my view to entertain parol evidence to assist me in the construction of the Will. In this connection, two Affidavits have been sworn by Mr Richard O’Hanrahan, Solicitor for the Testatrix and for the Defendant. In the first Affidavit Mr O’Hanrahan states as follows:-
“I say that the deceased attended at my former offices at EBS House, 7 Lower William Street in the city of Limerick in or around the month of March 1984. I say that I was fully instructed by the deceased to prepare and draft her Will. The deceased was a spinster and made it clear to me that it was her wish that upon her death that her only living brother, one Francis Kenny, the Defendant herein, being her only surviving next of kin should take all her property of every kind and description. The deceased also made it known to me that she had a second cousin by the name of Mary Roberts who had three children, namely Flannan Roberts, Catherine Roberts and Eamonn Roberts. The deceased also told me that she had another cousin with one child by the name of Joseph Hernon. The deceased was desirous of giving these four children of her cousins something small in her Will. The only other instruction received from the deceased was that a sum be devised and bequeathed for the celebration of masses for herself and her friends and relations.
I say that I then set about drafting the Will so as to reflect the specific instructions issued to me by the deceased. I say that I advised the deceased about the taxation implications of inheritances and was specifically instructed to ensure that the Defendant was to take the maximum benefit under the Will while at the same time limiting the tax liability on her estate to the absolute minimum.
I say that this Will was prepared and drafted with all due regard to all normal formalities. I say that under the Will it was purported to create a life estate in chattels in the said Francis Kenny. In addition, the said Francis Kenny was given all the powers and incidents that an absolute owner would enjoy. I say that these incidents were as follows, the power to buy, to sell and to convert any or all of the assets of the estate in any manner in which he saw fit and to sign any document regarding any transaction in his own name without regard to the restrictions on sale or reinvestment contained in either the Settled Land Acts or the Trustee Acts. In addition, Francis Kenny was given an entitlement to perform any act or sign any document in his own name disposing or effecting any re-conversion of assets without the necessity of acting through or with any other Trustee as provided for in the Settled Land Acts. To cap all the powers hereinbefore created and granted to Francis Kenny under the Will, it was specifically recorded in the Will that the said Francis Kenny was not to be accountable in any way for breaches of the trust created up to and including misappropriation of the assets of the deceased’s estate.
I say that the Will, as drafted, was in response to the deceased’s instructions and was advantageous from the tax liability point of view in that four additional allowances could be claimed off the estate totalling #40,000 thereby increasing the net value of the estate after taxes by the amount of #19,720 approximately. (The gross estate was #85,393.24 and the net taxable estate after allowances was #43,531.67 thereby creating a capital acquisitions tax gains liability of #5,699.50 which was paid in full). (In March 1984 on the making of the Will there was no law in place forbidding the creation of a document whose prime or ancillary purpose was the avoidance and the minimisation of tax).”
The tax avoidance arose out of there being a real value attached to the cousins’ remainder or future interests and this seems to me to be inconsistent with an intention that the Defendant be the absolute owner of the personalty. At most, the Will exempts him in my view from liability for negligent dissipation or reduction of assets but it does not exempt him from liability for deliberate dissipation of any part of the assets even the personalty.
The specific answers which should be given therefore to the first set of questions contained in paragraph A of the prayer in the Special Endorsement of Claim on the Special Summons are as follows:-
(i) No
(ii) Yes
(iii) The proceeds of the realty will be held by Trustees for the Defendant for life as monies arising under the Settled Land Acts. The assets in the estate which were from the beginning personalty ought to be vested in the Defendant in his sole name as no specific trust in relation to the personalty appears to have been created. Following on the Defendant’s death his personal representative will have to account for the monies to the four cousins if they have survived him and will be liable to them. In the event of any of the cousins predeceasing the Defendant, the Defendant will become the absolute owner in respect of that share in the personalty.
(iv) The Second, Third and Fourth named Plaintiffs along with Joseph Hernon are entitled to vested remainder interests in the proceeds of the realty and they are entitled to future executory interests in the deceased’s personalty if they survive the Defendant.
The specific answers to the second set of questions set out in paragraph B of the prayer are as follows:-
(a) No, but restrictions in relation to the powers of a tenant for life such as restrictions as to investments etc are removed. In other words the powers of the tenant for life are extended.
(b) Not as to reinvestment but sale should be at arms length.
(c) It is inappropriate to answer this question as a moot. The question of liability for breach of trust or misappropriation of assets can only be considered in the context of proceedings if and when breach of trust or misappropriation is alleged to have happened. But deliberate dissipation of assets would certainly give rise to liability.
(d) In relation to the sale of any land or buildings into which the proceeds of sale of the house may come to be invested, the ordinary provisions of the Settled Land Acts will apply and the purchase money will be received by the Trustees for the purposes of the Acts.
To avoid all the imponderables which may arise out of the carrying out of this impossible Will, it would be in the interests of all parties that there be a buy-out of the remainder interests as has already been attempted but this Court has no power to force such an arrangement. Given that in the case of the personalty, benefit to any one cousin in the future cannot pass to his estate if he predeceases the Defendant, it would seem to me to be in his interest to receive his money now.
Re O’Donoghue; Mulhern v. Brennan
High Court, May 26, 1998, McCracken J. JUDGMENT of Mr. Justice McCracken delivered the 26th day of May 1998.
1. John O’Donoghue (“the Testator”) died on 8th April, 1915. By his Will dated 28th April, 1911 he provided, in relation to the residue of his estate,:-
“All the rest residue and remainder of my estate and effects real and personal I will devise and bequeath to my four sons John Anthony O’Donoghue, James Frederick Caulfield O’Donoghue, David Geoffrey O’Donoghue and Peter Paul O’Donoghue share and share alike as tenants in common and in the event of any of my children dying without issue the surviving brothers or brother shall take his share original and accruing but in the event of his leaving issue such issue shall be entitled to the parent’s share.”
2. I have been asked to determine three issues arising on the construction of the Testator’s Will. These are as follows:-
3. Does the phrase ” dying without issue ” which appears in the said residuary clause mean:-
“(i) Dying during the lifetime of the deceased to the effect, in the events which have happened, that each of the said sons took absolutely a quarter share of the residue of the estate? or
(ii) Dying at any time to the effect that on the death without issue of each son his share passed to the then surviving brother, or brothers, and ultimately, on the death of the last surviving brother (the said John Anthony O’Donoghue) without issue that an intestacy arises? or
(iii) Dying at any time but to the effect that the defeasance provision in the said Will only applies for so long as there is a surviving brother? ”
4. In the events that happened, the Testator’s four sons all survived him, but ultimately all four of them died without issue. It appears from the terms of the Will probable that only one of the sons was of full age at the date of the Will. The primary rule which I must apply in construing the Will is that I must endeavour to ascertain the wishes of the Testator insofar as they are expressed in the words of the Will. If the words of the Will are clear, then the Court must give full effect to them in their normal meaning, and it is not for the Court to attribute any intention to the Testator which is not expressed in the Will.
5. The first point which I have to consider is whether the phrase ” dying without issue” refers to the death of the beneficiary during the lifetime of the Testator only, or whether it refers to his death without issue at anytime. There is a clear rule of construction that, unless the contrary be clearly indicated, a reference in a Will to the contingency of a person dying only refers to that person dying during the lifetime of the Testator, for otherwise it is not a contingency at all, but a certainty. See for example Re: Hall (1944) I.R. 54. In the present case, however, the event triggering a gift over is not simply the death of one of the Testator’s sons, but his death without issue.
6. A number of authorities have been opened to me, but only two of them appear to me to be directly relevant. In Woodroofe -v- Woodroofe (1894) 1 Ch.D. 299 there was a very similar residuary gift to that in the present case. The residue of the property was to be divided among the Testator’s four sons subject to the proviso ” but if any of my said sons shall die without leaving lawful issue him surviving, my Will is that the share of such son shall go and be divided between such of my other sons as shall be then living, in equal shares, the children of a deceased son to take the share to which their father would have been entitled.” It was held by the Master of the Rolls that the share of each son was defeasable in the event of his dying at anytime without leaving issue. He said at p. 302:-
“When death is spoken of by a testator as a contingent event, and if the words import no other contingency, then, since death is an event which must happen to all, the time of it alone being uncertain, the Courts have long treated the time of death as being the contingency contemplated, and, for want of a reference to any other time, have construed the Will as referring to death before the testator. Thus such common expressions as ‘in the event of his dying’ or ‘if he should die’ or ‘in case of his dying’ and the like, without more, have always been held to mean dying before the testator. This construction, however, is only adopted ex necessitate, and because the Will treats a certain event as uncertain, thus introducing the uncertain element of time, and no other time than the death of the testator can be supposed to be in view .
But whether this rule was originally sound or not there is plainly no reason for its application where some other contingency is in express terms connected with the event of death; as, for instance, where the event is not merely the death of A.B., but the event for instance of his dying before C.D., or dying under 21, or dying without leaving lawful issue him surviving; for these are all events to which language of contingency is strictly and properly applicable, and therefore there is no need to suppose, or imply, a reference to any other contingency than that which is expressed.”
Similarly, in Richardsons Trusts (1896) 1.Ch.D. 295 there was a provision that ” in case both, or either of my sons, Albert or Alexander dying leaving their children fatherless, I leave to such children the sum of £500 sterling to be divided among them share and share alike .” It was again held that the proper construction of this was that the gift would take effect on the death of either of the testator’s sons leaving children at anytime, and was not confined to death during the testator’s lifetime. The Vice-Chancellor said at p. 300:-
“The next question arises on the words ‘dying leaving their children fatherless.’ At what period of time must this event happen? This is not a case in which the Court is compelled, in order to avoid a failure of intention, to confine the death to the period of the testator’s life. That construction is not to be resorted to unless no other contingency is mentioned; and where a contingency is coupled with death there is no necessity for limiting it to the life of the testator. The contingency must be ascertained from the Will itself, and in the present case it sufficiently appears that the contingency contemplated is the death of a son leaving his family without provision.”
7. It appears to me that these decisions are correct, as they reflect the clear meaning of the words used. If it was intended to limit the contingency to the death of any of the Testator’s sons during his lifetime, it would have been very easy for the Will to have said so. To hold that this is the meaning of the words as they in fact appear in the Will would be to add the words ” in my lifetime ” to the gift, and a Court will only supply additional words of limitation in a Will where that is necessary to give a rational construction. Accordingly, I hold that the true construction of the Will is that the gifts over took effect on the death of any of the Testator’s sons without issue at any time, either before or after the death of the Testator.
8. This then leads to the question of what happens when, as in the present case, the stated contingency takes effect in relation to all the beneficiaries. In the events that happened, quite clearly the entire estate became vested in the last surviving son of the Testator, the stated contingency having occurred in relation to the other three sons. What the Will provides is that ” in the event of any of my children dying without issue the surviving brothers or brother shall take his share original and accruing but in the event of his leaving issue such issue shall be entitled to the parent’s share.” This is open to two constructions. Either the Testator totally failed to make any provision for the event which happened, in which case there would be an intestacy, just as there would be where a life interest was given without any gift over, or there is effectively a further contingency provided in the Will, namely, that there must be a surviving brother or brothers to take the share, and as that contingency has not occurred, the last surviving brother takes absolutely.
9. There is considerable authority that, in construing a Will, the Court will presume that the testator did not intend to die intestate as to any part of his estate, for otherwise he would not have made a Will. Accordingly, where there is an ambiguity, this is very colourfully expressed by Lord Esher M.R. in In Re: Harrison (1885) 30 Ch.D. 390 where he said at p.393:-
“There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a Will in solemn form you must assume that he did not intend to make it a solemn farce, – that he did not intend to die intestate when he has gone through the form of making a Will. You ought, if possible, to read the Will so as to lead to a testacy, not an intestacy. This is a golden rule. I do not deny that this Will may be read in two ways, or that it requires a should be filled up. But it may be read in such a way as not to amount to a solemn farce.”
10. The Will in the present case can certainly be read on the basis that for the contingency to take effect, there must be surviving brothers or a brother, and therefore the last son of the Testator takes absolutely. Indeed, this construction appears to be more likely to accord with the intention of the Testator, in that he clearly gave a vested interest to each of his children in the first place, and did not express himself as merely giving them a life interest. Accordingly, as it is possible to construe this Will sensibly and logically without providing for an intestacy, I think the correct construction must be that the last remaining son of the Testator took the residue of his estate absolutely.
In the Estate of Dora Mieth, Deceased
Charles N. Baker v Sophie Cohn-Vossen
1976 No. 295 Sp
High Court
10 June 1985
[1986] I.L.R.M. 175
(Barrington J)
BARRINGTON J
made his order on 10 June 1985 saying: The motion dated 17 April 1985 coming on for hearing this day in the presence of counsel for Colin Ardagh Chapman and of counsel for the defendant.
And on reading the order dated 27 June 1977 the affirmation of Charles N. Baker filed on 18 November 1976 and the exhibit therein referred to the affidavit of Charles N. Baker filed on 26 March 1982 and the exhibit therein referred to the affidavit of Nuri Wyeth filed on 19 January 1977 and the exhibit therein referred to and the affidavit of Nuri Wyeth filed on 14 December 1983 and the exhibits therein referred to the affidavit of Matthew Lardner filed in the Master’s Court on 24 June 1977 the affidavit of Colin Ardagh Chapman filed on 17 April 1985 and said notice.
And on hearing what was alleged by said counsel respectively.
*176
And it appearing that Charles N. Baker, the plaintiff herein, died on 12 March 1982
IT IS ORDERED that the said Colin Ardagh Chapman be and he is hereby substituted as plaintiff by revivor for the said Charles N. Baker.
AND IT IS ORDERED that the requirements of the publication of an advertisement for next-of-kin and the making of any further enquiries by the examiner of this court as to next-of-kin be and the same are hereby dispensed with.
AND IT IS ORDERED that the plaintiff be at liberty to distribute the net proceeds of the estate of the deceased without his being required to enter into a bond in that behalf upon the footing:
(a) that it is to be preseumed that Anna Rosalie Mieth (nee Guradze) the mother of the deceased, and Leopold Hugo Mieth, the father of the deceased, died during the lifetime of the deceased;
(b) that it is to be presumed that Otto Mieth, the brother of the deceased, died during the lifetime of the deceased without leaving issue him surviving;
(c) that it is to be presumed that no grandparents or other lineal ancestors survived the deceased and that Anna Rosalie Mieth (nee Guradze) had no brothers or sisters and
(d) that it is to be presumed in the absence of any evidence that any kin on the paternal side of the family of the deceased survived the deceased that no kin on the paternal side of the said family as close or closer than third cousins survived the deceased.
And the court doth declare the said Charles N. Baker and the defendant entitled to their respective costs of these proceedings out of the assets of the estate of the deceased.
And the court doth declare the plaintiff by revivor entitled to his costs of and incidental to this motion and order when taxed and ascertained out of the assets of the estate of the deceased.
And the court doth declare the defendant entitled to her costs of and incidental to this motion and order as part of her said costs of these proceedings.
Liberty to apply.
In The Goods of William Walker, Deceased
Florence OBrien v Mary Stoutt
1977 No. 3264P
High Court
5 March 1982
[1982] I.L.R.M. 327
(DArcy J)
DARCY J
delivered his judgment on 5 March 1982 saying: I have already dealt with the facts of this case. The defendant, Mary Stoutt, is the natural child of the late William Walker and Mary Palmer, usually called Mary Walker. The history of the matter can be briefly summarised. In her youth, Mary Pluck married James Palmer on 27 September 1928. James Palmer disappeared in 1929 and was never heard of again. Mary Palmer and William Walker deceased, then, sometime prior to 1937 entered into a solid and permanent relationship, which lasted until William Walkers death on 5 May 1975. During this period they lived together as man and wife. There was issue of that relationship between William Walker and Mary Palmer, three children, one died in infancy, one was delicate and died at the age of about eighteen, and the defendant, Mary Stour. In her youth, at all times, William Walker deceased supported, maintained and educated Mary Stoutt. He performed all the usual duties of a father including giving his name to Mary Stoutt who, before her own marriage, was always known as Mary Walker, and also giving her away in marriage. Mary Stoutt has given evidence before me, which I accept, that she was completely unaware that her parents, William Walker deceased and Mary Walker (sometimes called Palmer) were unmarried until she herself was grown up, had emigrated to England, and was about to have her own first child in 1961.
William Walker, deceased, died on 5 May 1975 intestate. He was survived by two sisters, Annie Turner, and the plaintiff, Florence OBrien, and a brother Alexander Walker since deceased, but who left issue. The said William Walker was also survived by the lady with whom he had lived all his lifetime, Mary Walker otherwise Palmer, and by Mary Stoutt, his natural child.
The relevant provisions governing the distribution of William Walkers estate on his intestacy, are to be found in the Succession Act, 1965, ss. 67 and 69. S. 67 (3) provides, if an intestate dies leaving issue and no spouse his estate shall be distributed amongst the issue in accordance with sub-s (4).S. 69(1) provides:
If an intestate leaves neither spouse not issue nor a parent his estate shall be distributed between his brothers and sisters in equal shares, and, if any brother or sister does not survive the intestate, the surviving children of such deceased brother or sister shall, where any other brother or sister of the deceased survives him, take in equal shares the share of their parent who would have taken if he had survived the intestate.
The Succession Act, 1965 does not contain any definition of the word issue. Mrs Robinson, on behalf of Mary Stoutt, urged me that the word issue included illegitimate issue. Nial Fennelly, on behalf of the Attorney-General, urged me that the word issue must be construed as meaning legitimate issue.
If there be two alternative interpretations, one which would permit a construction in accordance with the Constitution, and the other which would afford a construction which would be unconstitutional, I must give the section such construction, as would make it valid in accordance with the Constitution. This only arises if alternative intepretations are available.
No Irish authority has been cited to me on the point. The function of a court *329 is to interpret a Statute according to the intent of them that made it Coke 44 Institutes 330. In construing a Statute words are to be given their ordinary meaning, unless the context otherwise suggests. In Strouds Judicial Dictionary 1903 Ed. and 1950 Ed. the word issue is stated to have a flexible meaning. The cases cited in Stroud only add to the confusion rather than clarifying it. It would appear that in Canada, the Canadian Courts in construing the Canadian Succession Act, 1942, held that issue did not include a step-son nor an adopted son. See Re White otherwise La Plane Estate [1945] 1 WWR 78. In Walker deceased, Walker v Lutyens (1887) 2 Ch. 238 at 241, a case dealing with the construction of a will, Romer J held that the word issue must be taken, at any rate prima facie to mean legitimate children. The word child in an Act of Parliament always applies exclusively to a legitimate child per Pollock, Chief Baron Dickenson v N.E. Railway 33 LJ Ex 97. But this principle only affords a prima facie meaning, and in the case of each Statute a wider meaning may be given which would include illegitimate children if the effect is more consistent with the object of the Statute. See Williams LJ in Woolwich v Fatham [1906] 2 KB 246 at 247.
The Oireachtas, where they so intended, expressly legislated for illegitimate children in both pre and post Constitutional Statutes. An interesting example is the Legitimacy Act, 1931 s. 9, which provides for a right of an illegitimate to intestate succession by and to his mother. The Civil Liability Act, 1961 s. 47(2)(a) extends dependents to include illegitimate children.
In my view, had the Oireachtas, or the draughtsman, intended to include illegitimate children, in the word issue in the Succession Act, 1965, they would have done so expressly. Unless the context so justifies me I cannot infer that the word issue should be extended by implicaton to include illegitimate children in the Succession Act, 1965. The context neither justifies nor warrants such an interpretation. I hold that the word issue in the Succession Act, 1965 s. 67 and s. 69 is confined to legitimate children.
Mrs Robinson submits that on such interpretation, the Succession Act, 1965 s. 67, and s. 69 are both repugnant to the Constitution, and in particular are repugnant to Article 40 and Article 43.
There is a presumption that the Succession Act, 1965 is not so repugnant. This presumption arises from the date upon which it was enacted, being post Constitution.
At Common Law an illegitimate child has no rights to intestate succession. If an illegitimate child died intestate and without issue his property estreated to the State. He was a filius nulius. Mrs Robinson stated that this barbaric state of affairs had its origin in the Poor Law Acts, which were passed, on the suppression of the Monasteries in the reign of Elizabeth I. I think the origin may have been older. An interesting statement of the Common Law by Gavan Duffy J is to be found in In re M. [1946] IR 341. This is referred to by Walsh J in his judgment in G v An Bord Uchtala [1980] IR 61.
As far as Intestate Succession to property is concerned this state of affairs has been ameliorated somewhat, by the Legitimacy Act, 1931 s. 9 already referred to.
Before dealing with the Articles upon which Mrs Robinson relies it is in *330 structive to refer to Article 41 of the Constitution which deals with the Family. This article is relevant to my task. It provides: Article 41
1.
(1) The State recognises the family as the natural primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
(2) The State, therefore, guarantees to protect the family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the nation and the State.
3.
(1) The State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack.
In The State (Nicolaou) v An Bord Uchtala [1966] IR 567, the Supreme Court held that the unit family referred to in Article 41 was the family based on marriage. See also, G v An Bord Uchtala [1980] IR 32 OHiggins CJ, at 55 Walsh J at 70 and Henchy J at 86.
Article 41 is an impediment to the proposition put forth by Mrs Robinson rather than of assistance.
In most cases, but not in the present case, if illegitimate children are to share with legitimate children on an intestate succession, they can only do so at the expense of the legitimate children. Furthermore the nature of the right to inherit is relevant. There is no positive right to inherit property. The right always depends upon the ancestor having heritable assets. Even where assets exist, the right, subject to qualification set out in the Succession Act, 1965 can be defeated by the ancestor making a will. The vast majority of children in the State do not inherit property, irrespective of whether they are legitimate or illegitimate.
No one will dispute that parents have a moral duty to support and maintain their illegitimate children. Costello J has recognised and given effect to such duty in L v L [1978] IR 288. This was a claim for provision by a legitimate child under the Succession Act, 1965 s. 117. Costello J took into consideration in fixing the amount to be paid to the legitimate child, the moral duty of the parent to support an illegitimate child.
The relevant portions of the Articles of the Constitution relied on by Mrs Robinson are:
Article 40
1. All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to the differences of capacity, physical and moral, and of social function.
3.
(1) The State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
(2) The State shall, in particular, by its laws protect as best it may from unjust attack and in the case of injustices done, vindicate the life, person, good name and property rights of every citizen.
Article 43
1.
(1) The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.
*331
(2) The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.
2.
(1) The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.
Mrs Robinson urges that the Succession Act, 1965 ss. 67 and 69 offend against these articles. She urges that they and each of them is discriminatory in favour of legitimate as against illegitimate children, and they offend the principle of equality before the law.
In delivering the judgment of the Supreme Court in the State (Nicolaou) v An Bord Uchtala [1966] IR at 644 Walsh J stated:
For the same reasons the mother of an illegitimate child does not come within the ambit of Articles 41 and 42 of the Constitution. Her natural right to the custody and care of her child and such other natural personal rights as she may have (and this Court does not in this case find it necessary to pronounce upon the extent of such rights sought to be protected under Article 40 s. 3.) There is no provision in Article 40 which prohibits or restricts the surrender abdication or transfer of any of the rights guaranteed by that article by the persons entitled to them.
In G v An Bord Uchtala [1980] IR 32 OHiggins CJ said:
In the same way, in special circumstances the State may have an equal obligation in relation to a child born outside the family to protect that child, even against its mother, if her natural rights are used in such a way as to endanger the health or life of the child or deprive him of his rights. In my view this obligation stems from the provisions of Article 40. s. 3 of the Constitution (at 56).
In the same case Walsh J at 68, referred with approval to the words of Henchy J in McGee v The Attorney General [1974] IR 284 where at 325 he said:
As has been held in a number of cases the unspecified personal rights guaranteed by sub-s. 1 of s. 3 of Article 40 are not confined to those specified in sub-s. 2 of that section. It is for the courts to decide in a particular case where the right relied on comes within the constitutional guarantee. To do so, it must be shown that it is a right that inheres in the citizen in question by virtue of his human personality. The like decision in this test is reduced by sub-s. 1 of s. 3 Article 40 is read (as it must be) in the light of the Constitution as a whole and, in particular, in the light of what the Constitution, expressly or by necessary implication deems to be fundamental to the personal standing of the individual in question in the context of social order envisaged by the Constitution. The usual variety in the relationships between the citizen and his fellows and between the citizen and the State makes an exhaustive renumeration of the guaranteed rights difficult if not impossible.
In G v An Bord Uchtala supra, Henchy J at 86 said:
Rights and duties in regard to the custody of a child who was born out of wedlock and who was not a member of a family (in the constitutional sense of the word) are not encompassed expressly or impliedly, by any of the Constitutional provisions I have cited. Rights and duties arising under those provisions are by the terms of the constitutional recognition confined to children of a family founded on marriage, and they are vested not in one or other parent but in the parents
*332
Because of the central and fundamental position accorded by the Constitution to the family and the social and moral order, there is a necessary and inescapable difference in moral capacity and social function between parents or a parent within the family and parent or parents of an illegitimate child. While Article 40(1) of the Constitution recognises that all citizens shall as human persons be held equal before the law it adds the provision that such declaration shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral and social function. Thus one will find throughout the laws of the State many instances where parents within a family are treated differently from parents of an illegitimate child. Likewise, with the same constitutional justification, instances will be adduced (e.g. the law of succession) where illegitimate children are treated differently from legitimate children.
In the same case at 91 of the report Henchy J says:
As to the constitutional right of the child, it arises under Article 40 s. 3, by analogy with Article 42 s. 1, and it amounts to a right to be accorded, with due regard to what the circumstances reasonably allow, an upbringing which will provide for the religious, moral, intellectual, physical and social education of the child. Whereas the right, as guaranteed by Article 42 s. 1, to legitimate children, is coupled with a correlative duty imposed on the parents, a duty which is related to their means, the analogous right of a legitimate child which is implied under Article 40. s. 3, cannot be necessarily exerciseable in the context of a correlative duty imposed on the father or mother. Article 40 s.3 allows certain personal rights, but not personal duties to be impliedly recognised
At 100 of the same report Parke J states:
The child (illegitimate) has personal rights to life, to be fed, to be protected, reared and educated in a proper way; these are rights recognised by Article 40 of the Constitution. In my view a child has no constitutional right to have those obligations discharged by his or her natural parent, and, if there are other persons able and willing to satisfy such requirement, then the childs constitutional rights are sufficiently defended and vindicated.
In the Educational Company of Ireland Ltd v Fitzpatrick [1961] IR 323 ODalaigh CJ at 344 said: Article 40 s. 1 of the Constitution states all citizens shall, as human persons, be held equal before the law. This does not mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral and of social function. This article is not a guarantee that all citizens shall be treated by the law as equal for all purposes but it means that they shall as human persons be held equal before the law. It relates to their essential attributes as persons which make them human beings. In my opinion it has nothing to do with their trading activities
See also Quinns Supermarket v The Attorney General [1972] IR 1.
In OBrien v Keogh [1972] IR ODalaigh CJ delivered the judgment of the Court stated at page 155:
In the opinion of the court the first submission viz that the principle of equality before the law enunciated by s. 1 of Article 40 is infringed by the provisions of the impugned sub-paragraph (Statute of Limitations) is not sound and should be rejected. The distinction made between those in the custody of a parent as defined in the section and those not in such custody is not a distinction based on a physical location. Differ *333 ence of physical location is an accidental difference but the essential difference is between being in the custody of a person who is either a parent or is, in effect, in loco pafentis of the one hand and not being in such custody on the other. Far from affecting inequality, the purposes of the provision would appear to attempt to establish equality between the two groups. As was said in the judgment of this Court in the State (Hartley) v The Governor of Mountjoy Prison High Court, 21 December 1967a diversity of arrangements does not affect discrimination between citizens in their legal rights. Their legal rights are the same in the circumstances. This in fact is equality before the law and not inequality.Article 40 does not require identical treatment of all persons without recognition of differences in relevant circumstances. It only forbids invidious discrimination.
Two American decisions were referred to in the argument. Decisions of the Supreme Court of the United States will always be received in this Court with the greatest of respect. Tumble v Gordon 430 USR (1977) 360 was an appeal from the Supreme Court of Illinois. The court held as restrictive and a violation of the Equal Protection Clauses in the Fourteenth Amendment of the Constitution an Act of the Illinois Legislature restricting intestate succession to legitimate children. In an earlier decision Labine Tutrix v Vincent, 401 USR (1970) the same court (sitting with a slightly different personnel) in an appeal from the Supreme Court in Louisiana decided the opposite as regards a Louisana Statute. Both cases were decided by a majority of one judgment. In both cases there were strong dissenting judgments. I, respectfully, find the dissenting judgment of Rehnquant J in Tumble v Gordon the most persuasive, and if I may add interesting.
For present purposes these American decisions, at best, are inconclusive.
Mrs Robinson, also referred to a decision of the European Court of Human Rights, Marckx v Belgium (197980) 2 EHRR 330. In this case the European Court held a Belgian Statute to be discriminatory and in violation of Article 14 of the European Convention of Human Rights, by virtue of the lack of any objective and reasonable justification for the differences of treatment between legitimate and illegitimate family. The decision is based on a construction of the European Convention of Human Rights, a party. The Convention is not part of our Municipal Law. See In re OLaighleis [1961] IR 99. The primacy of domestic legislature was not displaced by the State becoming a party to the Convention of Human Rights and Human Freedoms.
It must be clearly borne in mind that my function is not to decide what is just or unjust as far as illegitimates are concerned. My function is to decide whether or not it is within the Constitutional power of the Oireachtas to make provision for intestate succession in the manner in which they did, in the Succession Act 1965.
Article 40 of the Constitution does not confer any express right of inheritance on illegitimates. In view of the authorties I do not see how such a right can be implied. It is to be noted that the guarantee given by the State to protect personal rights in Article 40 is not an unqualified one. It is to defend personal rights as far as practicable. No authority has been cited to me, in which the Constitutional guarantees expressed in Article 40, has been applied to rights other than personal rights in the sense of liberty of the persons bodily integrity, liberty of speech, right *334 to association, or other rights of a personal nature. The Oireachtas has to balance the claims of various next-of-kin.
Article 43 of the Constitution does not give an individual right to inherit property. It guarantees that the State will not pass a law attempting to abolish the right to private property or the general right to transfer bequeath and inherit property. It is the general right to inherit property not any particular one that is enshrined and guarded by the Constitution.
In interpreting the Constitution I must read it as a whole. I cannot read Article 40 and or Article 43 in isolation. I must read them in conjunction with Article 41.
In so doing, I hold that the Succession Act, 1965 ss.67 and 69 are not repugnant to the Constitution.
Mrs. Stoutts claim fails.
This is an extremely small estate. Counsel have agreed its value is 1,600. I am very reluctant to burden it with any costs. The plaintiff will have her costs out of the estate on the basis of a one day hearing. No costs to the defendant. The Attorney General will bear his own costs.
Re McKee
Court of Appeal [1931] 2 Ch. 145; 100 L.J.Ch. 325; 145 L.T. 605; 47 T.L.R. 424; 75 S.J. 442
RoMER L.J.: In this case the testator, in the events that happened, has failed to make any disposition of the reversionary interest in the residuary estate expectant upon the death of his widow, to whom he gave a life interest in such estate. That reversionary interest is therefore a part of his property in respect of which, by virtue of s. 49 of the Administration of Estates Act, 1925, Part IV. of the Act is to have effect. For by s. 55, sub-s. 1 (vii.), of the Act the word “property” includes any interest in real or personal property, and the testator is a person who has died leaving a will effectually disposing of an interest in his real and personal estate-namely, an interest during the life of his widow but has not disposed of the rest of his interest in that estate-namely, the reversionary interest expectant upon her death.
Now s. 46 of Part IV. of the Act is concerned with what is therein called the residuary estate of an intestate (which obviously means the fund and assets referred to in s. 33, sub-s. 4), and prescribes the method in which that residuary estate is to be distributed or the trusts upon which it is to be held. Sect. 49 of the Act must therefore be taken as enacting that the residuary interest undisposed of by the will of the testator shall, subject to the provisions contained in the will, and subject to the modifications specified in the section, which are not material for the present purpose, be held upon the same trusts as his residuary estate as defined oy s. 33, sub-s. 4, would be held had he died altogether intestate. The reversionary interest therefore stands charged with the payment to the widow of a net sum of 1000/. with interest, as mentioned in s. 46, sub-s. 1 (i.), and subject thereto is to be held upon trust for the widow for her life, and subject thereto upon the trusts specified in sub-s. 1 (v.).
Down to this point there is not, I think, any real disagreement between the parties represented before us. The disagreement between them arises with refer ence to the manner in which the trusts are to be performed. The widow con tends that the reversionary interest should be sold for what it will fetch, and the net proceeds, after deducting her 1000/. and interest, invested, and the income upon the investments paid to her for her life. Alternatively she says that when, upon her death, the reversion falls into possession, the testator’s residuary estate must be apportioned between her estate and those entitled after her in accordance with the principles of Howe v. Lord Dartmouth ( (1802) 7 Ves. 137) and In re Lord Chesterfield’s Trusts ((1883) 24 Ch.D. 643). This contention is resisted by the remaindermen. They say that the reversionary interest must be held by the trustees unsold, and that, inasmuch as, when it falls into possession, the life interest of the widow will have necessarily come to an end, the whole residuary fund will then be distributable amongst them after provision for the widow’s 1000/. and interest.
I do not for myself think that any light is thrown upon this question by the words of s. 49. The provisions of Part IV. of the Act are no doubt to have effect upon the reversionary interest ” subject to the provisions of the will.” But this can only mean that the provisions of the will are to remain unaffected, and whichever contention prevails this condition will be fulfilled. No one for instance contends or can contend that the trust for sale and investment contained in the testator’s will, or the trust for the payment of the income to his widow for life, is in any way affected by the provisions of Part IV. of the Act. There is nothing inconsistent with the trust for conversion of the testator’s residuary estate in retaining the reversionary interest unsold nor is there anything incon sistent with the trust for payment of the income of the residuary estate to the widow for life in selling the reversionary interest and paying the widow the income of the proceeds. To decide the matter in dispute between the parties we must therefore, in my opinion, look outside the section, and see whether there is any obligation imposed upon the trustees of the testator’s will to sell the reversionary interest. If there is not, that interest must remain unsold, as contended for by the respondents.
Now, in connection with this matter, our attention was called to the pro visions of s. 33 of the Act dealing with the case of a person dying intestate as to any real or personal estate. If that section applied to the present case, it would no doubt create much difficulty. In my opinion, however, the section is confined to the case of a person dying intestate as to some one or more specific items of his real or personal estate, and does not extend to a case like the present; where there is a will which deals with every item of the testator’s estate, but omits to dispose of every interest in that estate. There is no provision in the Act that the words ” real and personal estate ” include any interest in real or personal estate. It is not therefore permissible to read s. 33 as referring to a person dying intestate as to any interest in his real or personal estate. Nor are the provisions of the section·at all applicable to such a case. By way of illustration, let me take the case of a testator who has given the whole of his personal-estate to his executors and trustees upon the usual trusts for conversion, payment of debts, funeral and testamentary expenses and legacies, and then to stand possessed of the residue upon trust for two fersons in equal shares, of whom one pre deceases the testator. If the one-hal of the testator’s net residue is to be treated as personal estate of his, as to which he has died intestate, then that half is to be held upon the trusts specified in sub-ss. 1 and 2 of s. 33 of the Act. But the sale of the testator’s personal estate will already have been effected, in order to produce the very residuary estate of one-half of which the testator has failed effectually to dispose. The section seems therefore quite inapplicable to such a case. Sect. 49 on the other hand appears to be expressly designed to meet it. The language is now changed. Instead of referring to ” any real or personal estate ” as to which a person may die intestate, the latter section refers to part of a testator’s “property,” a change which seems to be deliberate and attributable to the definition of property to which I have already referred. It is moreover to be observed that this construction of the two sections avoids the necessity of treating s. 49 as being almost entirely superfluous. For if s. 33 applies to such a case as I have mentioned, the one-half of the testator’s residue must constitute the ” residuary estate of the intestate ” within the meaning of sub-s. 4 of the section, and it did not require s. 49 to make Part IV. of the Act applicable to it, or to provide that Part IV. should apply to it “subject to the provisions con tained in the will.” Part IV, would have applied to it even if s. 49 had not been in the Act, because it was residuary estate of the intestate; and it would have applied “subject to the provisions of the will ” because of sub-s. 7 of s. 33. For these reasons I cannot regard s. 33 as throwing any light upon the question of what has to be done with the reversionary interest of which the testator has failed to dispose. The trusts upon which it is to be held are, as I think, to be found in Part IV. of the Act, and nowhere else. This being so, I cannot find any ground for the widow’s contention that the reversionary interest should be sold, or that any apportionment should be made as between income and capital when the interest falls into possession on the death of the widow. The case would appear to be the simple case of a specific reversionary interest directed to be held upon trusts for persons in succession and not the ca e of a residuary fund of which a reversionary interest happens to form part being directed to be held. In the former case the doctrine of Howe v. Lord Dart mouth has no application, even if it could ever apply to a settlement affected by the Legislature. The subject-matter of the settlement effected by virtue of s. 49 of the Act is a reversionary interest, and it must remain a reversionary interest until it falls into possession. It is true that the widow will not in that case ever derive any benefit from her life interest in that subject-matter. But I cannot think that this is in any way contrary to the intentions of the Legislature. It would indeed be somewhat extraordinary if the Legislature had given to the widow any greater interest than she would have taken had the testator by his will declared trusts of his residuary estate to take effect after her death corre sponding to those specified in s. 46 of the Act. I cannot myself find any provision in the Act that the trusts specified in s. 46 are, in cases to which s. 49applies, to be treated as declared in the will in relation to the interest undisposed of to take effect as and when such interest falls into possession. But I cannot doubt that to treat these trusts as being so declared in the will is to give effect to what the Legislature probably intended.
For these reasons I have come to the same conclusion as has been arrived at by Maugham J. and by the other members of this Court, and I agree that these appeals should be dismissed.
Re Sullivan
Chancery Division [1930] I Ch. 84
MAUGHAM J.: As the testator died without having had children the ultimate gift fails, and accordingly there is an intestacy in respect of the capital of the residue. Also, as he died after the Administration of Estates Act, 192S, had come into force, the property, save in so far as effectively disposed of by the will, falls to be dealt with in the way directed by that Act. The question raised is whether the widow, if she disclaims her life interest under the will, will be entitled, upon intestacy in respect of the residue, to a life interest in the residue, with the consequence that she will receive the royalties as income and that the special clause in the will directing that the royalties be treated as capital will not apply.
Royalties are prima facie in the nature of wastin property, to which the rule in Howe v. Earl of Dartmouth ((1802) 7 Ves. 137) applies. Where there is a complete intestacy the provisions of s. 33, sub-s. 5, of the Administration of Estates Act, 1925, will ap1;ly, with the result, in the present case, that the widow, having (if she disclaims) the interest of a tenant for life, will be entitled, assuming that clauses 6 and 7 become inoperative, to the whole of the royalties, as that sub-section excludes the rule in Howe v. Earl of Dartmouth. The only question is whether the disclaimer will render inoperative for all purposes that
part of the will which it affects. In the present case the provision as to royalties was inserted in the will in order to diminish the widow’s life interest for the benefit of children who, in the event, do not exist. It was clearly not inserted in order to determine the nature of interests to be taken in property in respect of which he died or might die intestate. It is true that s. 49 of the Administra tion of Estates Act, 1925, might be construed to mean that the provisions of that part of the Act shall have effect subject to the whole of the provisions in the will, including any provisions which become inoperative by virtue of disclaimer, lapse, or other event. I am satisfied that that is not the true construction of the section. The phrase ” subject to the provisions ccntained in the will ” is intended to show that the provisions of the Act relating to property not disposed of by will must take effect subject to all the provisions of the will which remain operative and effective. In my view, therefore, the widow, upon executing a disclaimer, will be entitled to a life interest in the residue of the testator’s estate, including royalties receivable by the trustees.