Atkinson, Re; Matheson v Pollock

• Jurisdiction: Ireland
• Judgment Date: 11 November 1942
• Date: 11 November 1942
• Court: King's Bench Division (Ireland)

In re Atkinson; Matheson v. Pollock.

In re ATKINSON, deceased

MATHESON

and

POLLOCK and Others

Will - Construction - Pecuniary gift to nieces "in trust at their deaths to their children in equal shares who shall attain the age of 21 years" - Gift absolute but defeasible - Gift of specific sum out of residue followed by bequest of remainder of residue - Failure of gift of specific sum - Whether bequest of remainder of residue carried the whole residue - Bequest of "any thing else that I have that I have not willed" - What such gift comprises - Gift of remainder of residue effective to carry real estate acquired after the will - Wills Act, 1837 (1 Vict., c. 26) s. 24.

Construction Summons, brought by the plaintiff, as sole executor of the will, dated the 23rd day of October, 1936, of Emily Lucie Atkinson, deceased, for the determination of certain questions arising upon the construction of the will.

The will was as follows:—

"I leave my sister Mabel F. Atkinson £5,000, my nieces Lucy Pollock and Mabel Olive £3,000 each in trust, at their deaths to their children in equal shares who shall attain the age of 21 years, Nithsdale C. Dobbs £5,000 in trust at his death to his children in equal shares who shall attain the age of 21 years. Edward C. Dobbs £5,000, Edward Prenter (chauffeur) £500, Mrs. Dill-Williams £100, Miss Cissie Holden £100, Bessie Poer £100, Polly Hornidge £100, Louis Moore £100, The Incurable Hospital, Donnybrook, £100, The Consumptive Hospital, Newcastle, Co. Wicklow £100, Monkstown Protestant Church £2,000, in loving memory of my father and mother, the interest to be paid yearly, £10 to the Church Missionary Society and the balance to the Monkstown Church Parochial Fund in trust to be called the Atkinson Memorial Fund. The residue I leave £10,000 to my sister Mabel F. Atkinson the remainder to my nephews in equal shares, I also leave my sister Mabel F. Atkinson my furniture, silver, contents of my bedroom and diamond crescent left to me by my mother, and anything else I have that I have not willed and appoint her and my solicitor Mr. Matheson my executors. I leave him £100. I wish all legacies in this my will to be paid free of all duty and also my funeral expenses paid."

The sister of the testatrix, Mabel F. Atkinson, predeceased the testatrix.

The assets of the testatrix so far as they consisted of securities and cash amounted in value to £39,674 15s. 1d. which would be more than sufficient to provide for all the pecuniary legacies given by her will and the sum of £10,000 given out of what testatrix refers to as "the residue" to her sister Mabel F. Atkinson. She was also entitled under the will of her brother, Thomas Nithsdale Atkinson to a reversionary legacy of £10,000 and became entitled on the death of the said Mabel F. Atkinson (intestate) to a one-third share in a further reversionary legacy of £10,000 under said will. Her furniture, silver and personal effects were valued for probate at £1,411 13s. 6d. The testatrix was also entitled to an undivided third part or share of the house and premises No. 29, Belgrave Square, Monkstown, which was of freehold tenure.

A testatrix gave a legacy in the following terms:—"I leave . . . my nieces L. P. and M. O. £3,000 each in trust, at their deaths to their children in equal shares who shall attain the age of 21 years." The testatrix then gave a number of pecuniary legacies and proceeded:—"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 any thing else I have that I have not willed."The sister, M. F. A., predeceased the testatrix.

Held, 1, that L. P. and M. O. each took an absolute vested interest in their respective legacies but liable to be divested by the executory gift over.

2, that the words "the residue I leave £10,000 to my sister M. F. A. the remainder to my nephews in equal shares" constituted an effective residuary gift, and the nephews were entitled, as residuary legatees, to the benefit of the lapsed legacy of £10,000.

3, that the gift of "any thing else that I have" must 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.

4, that under s. 24 of the Wills Act the gift of the remainder of the residue carried the real property belonging to the testatrix at her death, though acquired after the will.

Cur. adv. vult.

Gavan Duffy J. :—

The testatrix is stated to have penned her will without legal aid, and the principal question for decision in this

interesting case concerns her disposal of the residuary estate.

First, I hold that the gift of "any thing else" (in three words) must on the context be confined to specific chattels of the common generic description of "things" in ordinary language; choses in action are not included, nor cash, and this is not a general residuary gift.

Secondly, I hold that under s. 24 of the Wills Act the gift of the remainder of the residue carries the real property belonging to the testatrix at her death, though acquired after the will; "the residue" cannot refer merely to cash, for the legacies cannot be paid out of her cash without resorting to a sale of her securities, and, since their payment involves a sale of some of her property, it is impossible to make "the residue" mean anything less than the remainder of all her property, real as well as personal, after the debts, expenses and legacies have all been satisfied; there is no excuse for distinguishing here between personal and...