Balfe v Halpenny

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 30 July 1904
• Court: Chancery Division (Ireland)
• Docket Number: (1904. No. 279.)
• Date: 30 July 1904

Balfe

and

Halpenny.

Barton, J.

(1904. No. 279.)

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.

1904.

Will — Gift of residue to executors — Implied trust for next-of-kin — Secret trust — Parol evidence — Admissibility.

A testator by his will bequeathed to his executors legacies for their trouble in administering his estate, and disposed of the residue as follows:—“I bequeath all the residue of my property of every kind to my executors, to apply the same as they shall think fit, and I appoint as my executors A and B.” The testator's next-of-kin were his brother T. and the ten children of his late brother C. After the execution of the will one of the executors asked the testator how he would like the residue spent. The testator replied that he would like the six younger children of his late brother C. to get it, and that he did not wish the elder children of C. to get any, and that he would not like his brother T. to get a penny.

The six younger children of c claimed that the above conversation created a secret trust of the residue in their favour, to the exclusion of the rest of the next-of-kin:—

Held, that, upon the face of the will, the executors did not take beneficially, but upon an implied trust for the next-of-kin; that such a trust could not be varied by a conversation between the testator and one of the executors after the execution of the will, and that the doctrine of secret trust had no application to the facts of the case.

Trial Of Action.

By his will dated the 3rd February, 1902, Henry Balfe, of Bigstown, Ardee, in the county of Meath, after sundry other bequests, and after bequeathing £10 each to his executors for their trouble in administering his estate, disposed of the residue of his property in the following terms: “I bequeath all the residue of my property of every kind to my executors to apply same to such purposes as they shall think fit, and I appoint as my executors John Halpenny, of Batestown, and Thomas Haslin, of Piercetown.” The testator died on the 10th February, 1903.

At the time the will was executed one of the executors was present and heard it read. While returning home with the testator this executor asked testator how he would like the remainder of his property spent, and the testator said that he wished the six younger children of his brother Columbus to get it; that he did not wish the elder children to get any of it, and that he would not like his brother Thomas to get a penny.

The above conversation was not communicated to the other executor until after the death of the testator.

The testator's next-of-kin were his brother Thomas Balfe, sen., and the ten children of his deceased brother Columbus Balfe.

The plaintiffs were the six younger children of Columbus Balfe, and, being infants, sued by their mother Elizabeth Balfe.

The defendants were the executors, the four elder children of Columbus Balfe, and Thomas Balfe, senior.

At the trial the plaintiffs contended that evidence of the above conversation was admissible, as establishing a secret trust of the residue in their favour.

Herbert Wilson, and Daniel Kehoe, for the plaintiffs:—

The will on the face of it discloses a trust, and that being so, evidence is admissible to prove what the trust was. It is immaterial whether the trust was communicated to the executors before or after the date of execution. The case in all its features clearly falls within Riordan v. Banon (1), and the law as there laid down by the Vice-Chancellor. Riordan v. Banon (1) was approved of in In re Fleetwood (2) and it is also referred to in Williams on Executors, 9th edition, p. 1351.

O'Shaughnessy, K.C., delicti, K.C., and Dickie, for the defendant Thomas Balfe, senior:—

Evidence of a secret trust is clearly inadmissible in a case...