Atkins v Atkins

• Jurisdiction: Ireland
• Judge: KENNY J.:
• Judgment Date: 01 January 1977
• Neutral Citation: 1975 WJSC-HC 252
• Date: 01 January 1977
• Docket Number: No. 94SP/1974
• Court: High Court

In Re ATKINS DECEASED

IN THE MATTER OF THE TRUSTS OF THE WILL AND TWO CODICILS OF JOHN HENRY ATKINS DECEASED

Between

ROBIN JAMES ATKINS AND ALLIED IRISH BANKS LIMITED

Plaintiffs

and

JOHN FULLER ATKINS, THE TRUSTEES OF THE METHODIST CHURCH IN IRELAND AND MARGARET ATKINS

Defendants

1975 WJSC-HC 252

No. 94SP/1974

THE HIGH COURT

1 Judgment delivered 30th March 1976KENNY J.:

KENNY J.:

2 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.

3 By his will made on the 13th of July 1936 he pro-vided in clause 2:

4 2 "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 Robin Atkins and his male issue and lastly to my nephew Ashley Atkins and his male issue every 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 seriority in tail male and on failure of such issue to the use of my own right heirs.

5 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."

6 The testator made a first codicil to his will on the 11th of 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 hereinbe-fore 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 devise 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 con-dition 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 herein-before 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."

7 The testator made a second codicil but it is not relevant to any of the questions which have arisen.

8 The testator held the premises "The Cottage" Dunmanway under a lease of the 27th of 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 convenant 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...