B.(Deceased). O. v D

• Jurisdiction: Ireland
• Judge: Ross J.
• Judgment Date: 07 July 1916
• Court: Chancery Division (Ireland)
• Date: 07 July 1916

B., Deceased.

O.

and

D.

Ross J.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1916.

Will — Construction — “Children” — Illegitimate Child.

A., a hospital nurse, attended B. during his illness. They lived together, and in 1892 a child (E.) was born to them, but they were not married till 1894; but E. was always treated as B.'s legitimate daughter.

On June 25, 1896 (there being no prospect of any further issue), B. made a will leaving all his real and personal estate to his brother on trust, after payment of his debts, to realize a sum of £4000, to invest same and apply the income for the maintenance and education of his daughter E. during minority or until marriage, and then to pay the capital to her. The testator left the residue of his property upon trust to pay the income to A. for life, and then the capital to his children in equal shares, and if only one child, the whole to such child. E. came of age on Jan. 1, 1913.

Held, that A. and E. were jointly entitled to be paid the funds, and to have the securities transferred to them, subject to the trusts of the will, on the ground that the word “children” included E., whom the testator described as his daughter.

Dorin v. Dorin (L. R. 7 H. L. 568) distinguished.

Originating Summons.

The deceased by his will left his freehold and personal property upon trust, after payment of his debts, to realize the sum of £4,000 to be invested in trustee securities, and to apply the income for the maintenance and education of E. (described in the will as “my daughter E.”) during minority or marriage, and to pay the capital of the said sum of £4,000 to his “said daughter E.” on her attaining twenty-one years or marrying, whichever should first happen. The testator left the entire residue of his property upon trust to leave it in the business of D. & Son at the discretion of the trustee, or to take out the testator's share of the capital of the business, and invest same in trustee securities, and to pay the income to the testator's wife for life, and on her death the capital was to go to his children in equal shares, or, if there should be only one child, the whole to such child.

The summons was brought under Order LV, rule 4, by X. and Y., trustees of the will of the deceased, against A., widow of the deceased, E., his daughter (legatees), J., his heir-at-law and one of the next-of-kin, and M., another of the next-of-kin, to have it determined whether, under the residuary clause in the will, the defendants A. and E. were jointly entitled to be paid the funds and to have the securities transferred to them subject to the trusts of the will.

The facts, as to which there was no dispute, were as follows:—

One of the defendants, who was the wife of the testator, was trained as a hospital nurse. In that capacity she attended the testator, and nursed him through several serious attacks of illness. They became very much attached to each other, and the testator made her proposals of marriage, which she declined on the ground that the difference in their social position might be a hindrance to the testator. She continued to live with him for a considerable time. When the birth of their child was approaching, he renewed his proposal, which she again declined. Their daughter E. was born on 1st January, 1892, but they were not married till 4th September, 1894. The deceased took a house in the year 1893, in which he lived with his wife and daughter until his death in August, 1896. In that interval various members of his family stopped as visitors in the house, and the testator's wife was on terms of friendship with them, as well as with all the testator's intimate friends. The child was always introduced as his daughter, and was in every way treated as a lawful child. Prior to the making of his will on 22nd June, 1896, the testator's doctor advised him that there was a serious possibility of gout, from which he was suffering, attacking his stomach, with fatal results. Thereupon he made his will. He informed his wife that he had done so. The doctor's warning was realized. The gout attacked his stomach, and, on the 7th of August, 1896, he died. His wife swore that neither at the date of his will nor at the date of his death was there any expectation or prospect of any further issue of the marriage. The testator's daughter had been highly educated, and was, at the date of hearing, in her twenty-fourth year. The testator died possessed of large personal estate, and also of real estate.

Carrigan K.C., for the trustees.

Pigot K.C., for E., P. A. O'C. White, for A., and Leonard, for the heir-at-law (who was also one of the next-of-kin), supported E.'s claim.

The principle laid down in Hill v. Crook (1) is that prima facie illegitimate children are not included in the word “children”; but when from the will itself and the surrounding circumstances it can be gathered that a testator intended an illegitimate child to be included in the class of children, such child will take. In the present case no argument to the contrary can be drawn from the appointment of the testator's widow as...