Aiken v Attorney General and Others

• Jurisdiction: Ireland
• Judgment Date: 01 January 1946
• Date: 01 January 1946
• Court: High Court

Aitken v. Attorney-General and Others.

In the Matter of the Estate of MICHAEL McMANUS,Deceased, JOHN AITKEN and MOYA O'CONNOR

Plaintiffs

and

THE ATTORNEY-GENERAL, MICHAEL WALSH, THE VERY REVEREND THOMAS P. F. GALLAGHER and THE REVEREND PETER O'CALLAGHAN

Defendants.

Will - Construction - Charitable bequests - Whether marshalling applicable in favour of charities - General estate comprising proceeds of sale of lands and pure personalty - Pecuniary bequests out of such estate for charitable purposes - Bequest of residue for charitable purposes - Charitable Donations and Bequests Act, 1844 (7 & 8 Vict. c. 97), s. 16.

Construction Summons.

The will, dated the 19th June, 1944, of Michael McManus, deceased, was as follows:—

"I, Michael McManus of Barleyhill, Bohola, County Mayo, farmer, make and declare this to be my last will and testament, hereby revoking all former testamentary dispositions heretofore made by me. 1. I appoint John Aitken (Senior) of Barleyhill House, Bohola, and Moya O'Connor, solicitor, Swinford, executors of this my will, and I direct my executors to sell either by public auction or by private treaty, as they may think best, all my land, livestock and other effects. 2. I direct my executors to pay the following sums of money out of my estate:—[Pecuniary legacies amounting to £320, were set out.] £400 to the Parish Priest and Curate for the time being at the date of my death of the Parish of Bohola in equal shares (that is £200 each) for masses to be celebrated in Ireland for the souls of myself and my deceased parents, brothers and sisters, at 10s. each mass. 3. I leave all the residue of my estate and effects to my executors upon trust to apply the same and every part thereof for such charitable purposes in Ireland as they in their absolute discretion may think fit, provided always that should I die within three months from the date of this my will then I give so much of said residue as my executors would not, in that event, be entitled to apply for said charitable purposes to them (my executors) to be applied by them for such purposes and paid to such persons as they in their absolute discretion may think fit."

By a codicil, dated the 21st day of July, 1944, the testator bequeathed a legacy of £50 to one, William O'Connor, and in all other respects confirmed his said will.

The testator died on the 26th day of July, 1944, and probate of the said will and codicil was on the 22nd day of September, 1944, granted to the plaintiffs, the two executors named in the will.

The testator left the following assets:—money on deposit account, £2,866 18s.; cash £13; a horse, subsequently sold for £15; chattels worth £1 10s.; a farm of land at Barleyhill, County Mayo (whereof he was registered owner in fee simple), subsequently sold for £430. The debts and funeral expenses amounted to £167 6s. 10d. and estate duty and interest thereon amounted to £97 4s. 6d. The testator was a bachelor and the executors did not know who were his next-of-kin: the defendant, Michael Walsh, claimed to be a first cousin of the testator.

The plaintiffs issued a summons asking for the following relief:—

"(1) The determination by the Court of the following questions arising on the construction of the said will and upon the administration of the estate of the said deceased:—

(i) To what, if any, extent is the gift in the said will contained of

• (a) £400 to the Parish Priest and Curate of the Parish of Bohola in equal shares for masses,

• (b) The residue of the estate and effects of the said deceased to his executors for charitable purposes,

avoided by the statute, 6 & 7 Vict. c. 97, s. 16?

(ii) If the said gifts, or either of them, be partially avoided by the said statute, ought the executors of the said will to apply the assets released by such avoidance to the payment of the other pecuniary legacies bequeathed by the said will, so far as such released assets may extend, before resorting to the other assets of the deceased and in exoneration of such other assets?

(iii) If the said...