Berry v Fisher

• Jurisdiction: Ireland
• Judgment Date: 31 July 1903
• Docket Number: (1903. No. 208.)
• Date: 31 July 1903
• Court: Chancery Division (Ireland)

Beery

and

Fisher.

V.-C.

(1903. No. 208.)

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.

1903.

Will — Construction — Meaning of issue.

A testator bequeathed the sum of £600 upon trust, to pay the income thereof to his daughter M. for her separate use; and in case of her marrying and leaving lawful issue, then the said interest and principal moneys were to pass to such issue in such manner as was described relative to the issue of her sister J., which was as follows:—“In case of the death of my said daughter leaving issue, said interest money to be paid and payable to such issue, if more than one, share and share alike, for their support and education, and on their respectively attaining the age of twenty-one years, such principal sum, and such other sum as they or their said mother may be entitled unto in this will, shall be divided among them, share and share alike.” After providing further for several events, which did not happen, the testator directed that in case of the death of any of his children leaving lawful issue, the share or shares of such child or children should go respectively to the lawful issue of such child or children, if more than one, share and share alike. M. survived testator, and having died, leaving several children and grandchildren, the question arose whether the £600 was divisible among her children only per capita, or among her children and grandchildren per stirpes:—

Held, that the fund was divisible among all her children and remoter issue living at the period of distribution.

By his will, dated 10th December, 1836, Robert Elliott bequeathed his property to trustees in trust inter alia to pay to his daughter Jane Elliott, otherwise Fleming, the interest of the sum of £500, to be paid to her on her sole and separate receipt, and for her sole and separate use, notwithstanding her present or any future coverture; said principal sum of £500 and said interest money to be free from the control, debts, or interference of her then husband or any future husband. The will then contained the following provisions:—“And in case of the death of my said daughter leaving issue, said interest money to be paid and payable to such issue, if more than one, share and share alike, for their support and education, and on their respectively attaining the age of twenty-one years, such principal sum and such other sum as they or their said mother may be entitled unto in this will shall be divided among them, share and share alike; and in further trust to pay to my said daughter, Mary Anne Elliott, the interest money of £600 at such rate as could be obtained on good security as aforesaid, and in trust to pay to my said daughter, Sarah Elliott, the interest money of £600 at such rate as aforesaid, said interest money of said two sums of £600 sterling each to be paid to my said daughters half-yearly on their sole and separate receipt, and for their sole and separate use, notwithstanding any coverture or marriage whatsoever, and freed and discharged from any debts, incumbrances, charges, or interference of any husband or husbands of them, the said Mary Anne Elliott and Sarah...