Atkinson v Atkinson

• Jurisdiction: Ireland
• Judgment Date: 19 January 1872
• Date: 19 January 1872
• Court: Rolls Court (Ireland)

Rolls.

ATKINSON

and

ATKINSON.

Christopherson v. NaylorENR 1 Mer. 320.

Butler v. OmmaneyENR 4 Russ. 73.

Gray v. GarmanENR 2 Hare, 269.

In re Thompson 5 D. M. & G. 280.

Coulthurst v. CarterENR 15 Beav. 421.

Ive v. KingENR 16 Beav. 46.

Barnes v. JenningsELR L. R. 2 Eq. 448.

Hannam v. SimsUNK 2 D. & J. 151.

King v. CleavelandENR 26 Beav. 26.

Porter's TrustsENR 4 K. & J. 191.

Potter's TrustsELR L. R. 8 Eq. 52.

Loring v. ThomasENR 1 Dr. & Sm. 497.

Hotchkiss' TrustELR L. R. 8 Eq. 643.

Barnaby v. TassellELR L. R. 11 Eq. 363.

Giles v. GilesENR 8 Sim. 360.

Loring v. ThomasENR 1 Dr. & Sm. 497.

Tytherleigh v. HarbinENR 6 Sim. 329.

Smith v. SmithENR 8 Sim. 353.

Martin v. HolgateELR L. R. 1 H. L. 175.

Christopherson v. NaylorENR 1 Mer. 320.

Hotchkiss' TrustsELR L. R. 8 Eq. 643.

Christopherson v. NaylorENR 1 Mer. 326.

Jervis v. PondENR 9 Sim. 549.

Tutherleigh v. HarbinENR 6 Sim. 329.

Rust v. BakerENR 8 Sim. 443.

Bebb b. BeckwithENR 2 Beav. 308.

Porter's TrustsENR 4 K. & J. 192.

Attwood . AlfordELR L. R. 2 Eq. 479.

In re Potter's TrustsELR L. R. 8 Eq. 52.

Stewart v. JonesUNK 2 D. & J. 532.

In re Hotchkiss' TrustsELR L. R. 8 Eq. 643.

Will — Construction — Gift to a Class, with Substitutionary Gift to Issue of deceased Member of it.

184 THE IRISH REPORTS. ATKINSON v. ATKINSON. Will-Construetion-Gift to a Class, with Substxtuttonary Gift to Issue of deceased Member of it. A testatrix, having a power of appointment over a fund, bequeathed all her money under settlement, to be divided share and share alike between her nephews and nieces, the children of those who might be deceased to be entitled to the share of their parents: Held, that the children of a nephew who was dead at the date of the will were not entitled to a share of the fund. The principles of Christopherson v. Naylor (1 Mer. 320), and of Loring v. Thomas (1 Dr. & Sm. 497), stated and distinguished. In re Potter's Trusts (L. R. 8 Eq. 52) observed on. SPECIAL CASE pursuant to " The Chancery (Ireland) Act, 1867." By indenture, bearing date the 9th of July, 1840, made on the marriage of George Hunt and Caroline Johnston, a sum of £1846 3s., secured by mortgage, and the sum of £3800 Goverment 31 per cent. Stock, the fortune of Caroline Johnston, were vested in George SpilÂÂler, Joseph Atkinson, and John Hunt, upon trust to pay the interest and dividends, or other annual proceeds, to George Hunt for life, and, after his decease, to Caroline Johnston during her life, and, after the decease of the survivor of them, in trust for the issue of the intended marriage ; and, in case there should not be any child of the marriage, then upon trust for such person or persons as Caroline Johnston, notwithstanding her coverture, should by deed or will appoint ; and, in default of such appointment, in trust for the next of kin of Caroline Johnston, as if she had died intestate and unmarried. The marriage was solemnized, but there never was any issue of it. The sum of £1846 3s. ld., part 'of the trust fund comprised in the settlement, was paid off, and the same, with the sum of £3800 Government 31 per cent. Stock, comprised in the settleÂÂment, were represented by the sum of £5855 lls. Government New 3 per. cent. Stock, now standing in the name of Joseph Atkinson, as the sole surviving trustee of the settlement. • VoL. VI.) EQUITY SERIES. 185 Caroline Hunt made her will on the 5th day of February, Rolls. 1870, in the words following :- 1871. ATKINSON " In the name of God, Amen. I, Caroline Hunt, of Tamlaght Rectory, in V. the county of Londonderry, do publish and set forth this my last will and tes ATKINSON. tament. Upon the death of my husband, the Rev. George Hunt, Rector of Tamlaght, I leave and bequeath all my money now under settlement as folÂÂlows, viz. :-To be divided, share and share alike, between my nephews and nieces, the children of those who may be deceased to be entitled to the share of their parent, with the following reservations, viz. :--£50 a year to go to my sister Charlotte for her life, for which her own receipt will be a sufficient disÂÂcharge, independent of her husband, so much of my fortune to be retained as will realize, from year to year, this amount; on her decease, the above sum to be divided, share and share alike, as above bequeathed :"....._ and she died on the 5th of February, 1870, leaving surviving her husband, the Rev. George Hunt, who afterwards died on the 30th of April, 1870. The testatrix had three nephews-namely, the Plaintiff, Joseph Atkinson ; the Defendant, the Rev. George Robinson, and James Atkinson ; and two nieces, Martha Calvert, wife of Charles Calvert, and Mary Sharkey, who, at the death of the testatrix, was a widow, and never had any other nephews or nieces, save those who died in her lifetime under twenty-one years of age, unmarried and without issue. James Atkinson, one of the nephews of the testatrix, died in her lifetime, leaving three daughters-namely, the Defendants, Anne Johnston, Elizabeth Atkinson, and Elfrida Mary Louisa Atkinson, all infants : of which facts the testatrix was aware when she made her will. The Plaintiffs, Joseph Atkinson, Martha Calvert, and Mary Sharkey, and the Defendants, the Rev. George Robinson, Anne Johnston, Elizabeth Atkinson, and Elfrida Mary Louisa Atkinson, survived the testatrix and the Rev. George Hunt ; and the will was proved and administration with the will annexed was granted to the Plaintiff, Joseph Atkinson, on the 15th day of February, 1871. The questions submitted for the opinion of the Court were : 1. What is the true construction of the will of Caroline Hunt ; and are the Defendants, Anne Johnston, Elizabeth Atkinson, and Elfrida Mary Louisa Atkinson, entitled to share in the distribution of the trust funds ? 186 THE IRISH REPORTS. 2. Who are the parties entitled to the trust funds, and in what 1871. share, and for what interests ? - ATKINSON 3. Out of what fund, and by whom, are the costs of this ease v. and the proceedings herein to be paid? ATKINSON. Mr. May, Q. C., and Mr. E. F. Litton, for the Plaintiffs, a nephew and nieces of the testatrix. Under this gift, none can take but nephews or nieces of the tesÂÂtatrix, or the children of nephews and nieces who were alive at the date of the will, according to the rule laid down in Christopherson v. Naylor (1). Apart from authority, it is reasonable to suppose that the testatrix, who knew that James Atkinson was dead, and had left children, would have made them directly objects of her bounty, if she had intended that they should be so : Butler v. Ommaney (2); Gray v. Garman (3) ; In re Thompson (4) ; CoulÂÂthurst v. Carter (6) ; Ire v. King (6) ; Barnes v. Jennings (7) ; Hannan v. Sims (8); King v. Cleaveland (9); Porter's Trusts (10); Potter's Trusts (11) ; Loring v. Thomas (12) ; Hotchkiss' Trust (13); Barnaby v. Tassell (14); Giles v. Giles (15). Mr. Walsh, Q. C., and Mr. Price, for the minor children of James Atkinson. This gift comes within the exception stated in 2 Jarm. on Wills, p. 646, 2nd Ed. 727, 3rd Ed.-" Where, however, the children of the deceased person found their claim, not on a mere clause of substitution, but on a substantive, independent, original gift, comprehending them concurrently with another class of obÂÂjects, the doctrine of the preceding cases does not apply, and the gift will extend to the children of persons who were dead when the will was made." And, " Even where there is no original and (1) 1 Mer. 320. (9) 26 Beay. 26. (2) 4 Russ. 73. (10) 4 K. & J. 191. (3) 2 Hare, 269. (11) L. R. 8 Eq. 52. (4) 5 D. M. & G. 280. (12) 1 Dr. & Sm. 497. (5) 15 Beay. 421. (13) L. R. 8 Eq. 643. - (6) 16 Beay. 46. (14) L. R. 11 Eq. 363. -(7) L. R. 2 Eq. 448. (15) 8 Sim. 360. (8) 2 D. & J. 151. VoL. VI.] EQUITY SERIES. independent gift to the issue, but their claim is founded on a clause apparently of mere substitution, the Courts...