Begley, Re; Begley v McHugh [Supreme Court.]

• Jurisdiction: Ireland
• Judgment Date: 16 December 1938
• Date: 16 December 1938
• Court: Supreme Court

Supreme Court.

In re Begley; Begley v. McHugh.

In Re JULIA BEGLEY, Deceased; JOSEPH BEGLEY AND OTHERS

and

THE VERY REV. MICHAEL CANON McHUGH AND OTHERS (1)

Will - Probate - Evidence given of reading over of will to testatrix - Presumption of her knowledge and approval - Jury's findings that will was duly executed, that testatrix was of testamentary capacity, but that she did not know and approve of contents - Whether presumption of knowledge and approval applicable.

Appeal, on behalf of the defendants, from the verdict of the jury, and judgment entered thereon, dated the 23rd day of June, 1938, in an action in which the plaintiffs, as next-of-kin of Julia Begley, deceased, claimed to have a pretended will of the deceased, dated the 29th day of March, 1934, condemned on the usual grounds.

At the trial of the action it was proved that the will had been read over to the testatrix before she signed it, and the jury found that the will was duly executed, and that the deceased was of sound mind, memory and understanding, but that the deceased did not know and approve of the contents of the residuary clause or of the will apart from the residuary clause. On these findings, judgment was entered for the plaintiffs, condemning the will.

The appeal was on the grounds:—(1), that the findings of the jury, that the deceased did not know and approve of the contents of the residuary clause, or of the will apart from the residuary clause, were contrary to the evidence and to the weight of evidence, and (2), that there was a presumption that the deceased, having had the will read over to her, and having executed the same in accordance with the provisions of the statute, 1 Vic. 26, and being at

the time of sound mind, memory and understanding, did know and approve of its contents.

The defendants applied for an order that judgment be entered for them, and that the said will be admitted to probate in solemn form of law, alternatively, that the said will, apart from the residuary clause thereof, be admitted to probate in solemn form of law; or, in the further alternative, that a new trial be had of the action, so far as concerned the issue of knowledge and approval of the said will.

The facts are set out in the judgment of Sullivan C.J.

A presumption arises whore a testator, of sound mind, memory and understanding, has had a will read over to him and has duly executed it, that he knew and approved of its contents, but in order that such a presumption should apply, in the event of the validity of the will being contested, it must be established to the satisfaction of the Court, or of the jury if the case be tried with a jury, that not only was the will read over to the testator, but that it was read in such a way as to make plain its contents to him.

Where, therefore, the validity of a will was contested, and it was proved in evidence that the will had been read over to the testatrix before she signed it, and the jury found:—1, that the will had been duly executed, 2, that the testatrix was of sound mind, memory and understanding, but 3, that she did not know and approve of its contents:

Held, by the Supreme Court, that the jury's third finding could not be disturbed, as there were circumstances in connection with the preparation and execution of the will which might reasonably arouse the suspicion of the jury, and therefore it was impossible to say that the presumption of knowledge and approval applied.

Tyrrell v. Painton,ELR [1894] P. 151, and Fulton v. Andrew,ELRL. R. 7 H. L. 448, applied.

Cur. adv. vult.

Sullivan C.J.: — 16. Dec.

The appellants in this appeal are the defendants in an action in which the respondents are plaintiffs and which was tried by Hanna J. and a jury on the 20th, 21st, 22nd, and 23rd days of June last.

The action is one in which the respondents claim to be next-of-kin to Julia Begley, deceased, and claim to have a pretended will of the deceased, dated the 29th March, 1934, in which the appellants are named as executors, condemned, on the grounds that the alleged will was not duly executed, that the deceased at the time of the execution of the alleged will was not of sound mind, memory and understanding, and that the deceased did not know and approve of the contents of the alleged will at the time of its execution.

The appellants in their defence admitted that the respondents are next-of-kin of the deceased, but they traversed the grounds on which the respondents alleged that the will was invalid, and they counterclaimed that probate of the said will be decreed in solemn form of law.

At the trial the jury found that the will was duly executed, and that the deceased was at the time of the execution of sound mind, memory and understanding, but that the deceased did not know and approve of the residuary clause or of the contents of the will apart from the residuary clause. On these findings the learned Judge gave judgment condemning the will.

The appellants now seek to have the findings of the jury that the deceased did not know and approve of the residuary clause, or of the contents of the will apart from the residuary clause, and the judgment entered by Hanna J. set aside, and ask that judgment be entered admitting the will to probate, or, alternatively, admitting the will apart from the residuary clause to probate, or that a new trial be directed of the issue of knowledge and approval of the will.

The grounds of appeal relied on in the arguments were that the findings of the jury that the deceased did not know and approve of the residuary clause and of the contents of the will apart from the residuary clause, were contrary to the evidence and to the weight of evidence, particularly in view of the presumption arising from the fact that the deceased was of sound mind, memory and understanding, and that the will had been read to her before she executed it.

The deceased, Julia Begley, died on the 16th December, 1937, aged 81 years. The value of her assets was approximately £21,000, of which £13,915 represented the value of shares held by her in certain public companies. She had never married and her next-of-kin were nephews and nieces and the children of deceased nephews and nieces who had predeceased her, twenty-two in all.

By the will in question she bequeathed pecuniary legacies, mainly charitable, value £4,500, and left the residue to be divided equally between the Maynooth Mission to China and the African Mission, to be applied in Saorstát Éireann éireannfor the charitable objects and purposes of the said Missions, and she appointed the Very Reverend Michael Canon McHugh, the Very Reverend Thomas O'Malley and Peter Tuohy—the appellants in this appeal—executors.

At the time of her death the deceased resided in premises in Claremorris which she had acquired from one of her brothers in the year 1899 and in which she carried on business as a draper and general grocer and provision merchant. Up to the year 1929 it would seem from the evidence that she had taken a very active part in the management of the business and of her household affairs. Towards the end of that year she had a serious illness and in the following year she was for some time in a hospital in Dublin. From that time she seems to have left the entire management of her business in the hands of her Manager, Thomas Hughes, and the management of her household affairs in the hands of her housekeeper, Anne Kelly. She was delicate, constantly complaining of her health, and at times forgetful. She also suffered from deafness, some witnesses described her as "very deaf,"others as "slightly deaf." But there was a very considerable body of independent evidence—given by her stockbroker, William Tunney, her doctor, Dr. Ronayne, and the Manager of the branch of the bank in which she kept her accounts—that entitled the jury to find that on the 29th March, 1934, when the alleged will was made, she was of sound mind, memory and understanding.

On the evidence it seems to be quite certain that the deceased did not appreciate the number or value of the shares that she held, and therefore did not appreciate that the value of the property disposed of by the residuary clause would exceed £16,000; but the finding of the jury that she was of sound mind, memory and understanding has not been challenged.

That being so, the appellants contend that, as the evidence established that the will had been read to the deceased before she executed it, the jury were bound to presume that she knew and...