Bevan v Bevan

• Jurisdiction: Ireland
• Judgment Date: 02 February 1880
• Date: 02 February 1880
• Court: Chancery Division (Ireland)

Appeal.

Before BALL, C., MAY, C. J., and DEASY, L. J.

BEVAN

and

BEVAN.

Parker v. MarchantENR 1 Phil. 356.

Lowe v. ThomasENR 5 De G. M. & G. 315.

De Robeck v. Lord Cloncurry I. R. 5 Eq. 588.

Hicks v. Sallitt 23 L. J. (N. S.) Ch. 571, 577.

Dunally v. Dunally 6 Ir. Ch. R. 540.

Hewitt v. Bredin 10 Ir. Jur. (N. S.) 265.

Reilly v. Stoney 16 Ir. Ch. R. 295.

Langdale v. WhitfieldENR 4 K. & J. 426.

Re Powell's TrustENR Johns. 49.

Dowson v. Gaskoin 2 Kee. 14.

Williams v. Williams 8 Ch. Div. 789.

Jones v. TuckerENR 2 Mer. 533.

Jones v. Curry 1 Swanst. 71.

Sibley v. Perry 7 Ves. 532.

Boardman v. Stanley I. R. 7 Eq. 342.

Singleton v. TomlinsonELR 3 App. Cas. 425.

Collins v. CollinsELR L. R. 12 Eq. 455.

Rogers v. Thomas 2 Kee. 8.

Dowson v. Gaskoin 2 Kee. 14.

Boardman v. Stanley I. R. 7 Eq. 342.

Re Powell's TrustENR Johns. 52.

Goodlad v. BurnettENR 1 K. & J. 341.

Ferguson v. Ferguson I. R. 6 Eq. 199.

Ferguson v. O'Gilby 2 Dr. & W. 548.

Hicks v. Sallitt 23 L. J. (N. S.) Ch. 571.

Jones v. TuckerENR 2 Mer. 537.

Gosden v. DotterillENR 1 My. & K. 59.

Castle v. FoxELR L. R. 11 Eq. 542.

Stock v. BarrENR 1 Johns. 54.

Re Powell's Trust Ibid. 49.

Parker v. MarchantENR 1 Phill. 356.

Manning v. Purcell 7 D. M. & G. 55.

Wildman v. Wildman 9 Ves. 177.

Hotham v. Sutton 15 Ves. 319.

Gosden v. Dotterill 1 My. & Kee. 56.

Lowe v. ThomasENR Kay, 369.

Manning v. Purcell 7 D. M. & G. 65.

Powell's TrustENR Johns. 49.

Will Construction Bequest of "whatever remains of the ready money already mentioned, after the legacies" Government Stock held not to pass Evidence admitted as to state of property at date of will.

VOL. V.] CHANCERY DIVISION. 57 the possibility of proving a will attested by marksmen was to de- Appeal. pend upon their happening to survive the testator, and being 1879. available as witnesses to prove the due execution of the instrument CLARKE V. after his death. While it might lead to the condemnation of many C LARKT:. a genuine will if we were to lay down, as a rule of law, a stricter rule of evidence in the case of attestation by deceased marksmen than that which the Act requires in other cases, the danger of encouraging forgery or fraud may be avoided by requiring in each case similar to the present very clear and satisfactory evidence derived from a careful consideration of all the circumstances, that the document propounded is as genuine as we are satisfied that this will is. Solicitor for the Appellant : Mr. Thomas Turpin. Solicitor for the Respondent : Mr. Edward G. Foley. BEVAN v. BEVAN (1). Appeal. 1879. Will-Construction-Bequest of " whatever remains of the ready money already mentioned, after the legacies "-Government Stock held not to puss-EviÂÂdence admitted as to state of property at date of will. A testator, after specifying all the property he had, including 4000 Government Stock, 500 in bank, and " some money " in his desk, devised part of his real estate to his eldest son B., and gave some specific legacies, and pecuÂÂniary legacies amounting to 800, one of which was to be paid within three months after his death. He directed the rest of his real property to be sold, and out of the produce, " with whatever remains of the ready money already mentioned, after the legacies," he left 1500 to B., and the rest to be divided equally among his children living at his death, including B., whom he also apÂÂpointed his residuary legatee. At his death, which occurred three years after the execution of the will, he had no money in bank, and only 466 in his desk Held, on appeal (reversing the decision below), that the Government Stock did not pass under the words " ready money," but fell into the residue. During the hearing of the appeal the personal representative, having been ordered to file an affidavit giving the Court any information in his power as to (1) Before BALL, C., MAY, C. J., and DEASY, L. J. Dec. 3, 4. 1880. Feb. 2. 58 LAW REPORTS (IRELAND). [L. R. I. Appeal. the amount of money in the testator's desk at the date of the will, deposed that 1879. he did not know and could not ascertain it. APPEAL by the Defendant Joseph Bevan from so much of the decree of Lord Justice Fitz Gibbon (sitting for the Master of the Rolls), dated the 7th of February 1879, as declared that the legacy of 1500 bequeathed by Joseph Bevan [the elder] to his son William, the Plaintiff, was charged on and payable out of the sum of 4000 Government Stock, and that the net residue thereof was divisible among the testator's children living at his death. The material facts are fully stated in the judgment of THE LORD CHANCELLOR, post, and also in the report of the hearing beÂÂlow (3 L. R. Ir. 173-183). Mr. jellett, Q. C. (with him Mr. Campion, Q. C., and Mr. Price), for the Appellant : We contend the 4000 Stock is not specifically disposed of by the will, and falls into the residuary gift. Stock does not pass by a bequest of " ready money :" Parker v. Marchant (1) ; Lowe v. Thomas (2) ; see also De Robeck v. Lord Cloncurry (3). The exceptions are (a) when the testator has no " money " but Stock, and (b) , where the word " moneys" has been held to pass the general residue. The primary legal meaning must prevail unless there be no object to answer the description : Hicks v. Sallitt (4) ; Dunally v. Dunally (5). See also Hewitt v. Bredin (6) ; Reilly v. Stoney (7); Langdale v. Whitfield (8); Re Powell' s Trust (9). The circumÂÂstances under which, after a bequest of legacies, a gift of the residue of the testator's " moneys" will pass Stock are stated in 1 Jarm. Wills (ed. 1861), 732, referring to Dowson v. Gaskoin (10) ; but the word will not have an extended meaning where there is a regular residuary clause : Jarm. 735. Conflicting residuary gifts will be reconciled as far as possible by the Court : Williams v. Williams (11) . A will cannot be explained by an inquiry into the (1) 1 Phil. 356. (2) 5 De G. M. & G. 315. (3) I. R. 5 Eq. 588. (4) 23 L. J. (N. S.) Ch. 571, 577. (5) 6 Ir. Ch. R. 540. (6) 10 Ir. Jur. (N. S.) 265. (7) 16 Ir. Ch. R. 295. (8) 4 K. & J. 426. (9) Johns. 49. (10) 2 Kee. 14. (11) 8 Ch. Div. 789. VOL. V.] CHANCERY DIVISION. 59, state of the testator's property at its date : Jones v. Tucker (1) ; Jones v. Curry (2) ; Sibley v. Perry (3). [BALL, C., suggested. that the administator (the Appellant) should make an affidavit stating (if the fact were so) that he could throw no further light on the question of the amount of money in the testator's desk at the time of his will, and the administrator was accordingly diÂÂrected to do so (4) ; the affidavit further to contain a statement that the 4000 was Stock, and not money, and also information as to the produce of the sale of the realty.] Mr. H. Fitz Gibbon, Q. C., and Mr. W. M. Johnson, Q. C. (with them Mr. J. C. Lane), for the Respondent, did not cite any authoÂÂrities in addition to those mentioned by them at the hearing below, except Boardman v. Stanley (5), where, on the context of the will, the words " whatever more is left after my burial" were held to pass Stock. Mr. Campion, Q. C., in reply :-We rely on the internal eviÂÂdence afforded by the will itself for its interpretation ; external evidence should not be permitted to influence its construction. [BALL, C., referred to the observations in the judgment of Lord Blackburn in Singleton v. Tomlinson (6) in favour of admitting parol extraneous evidence as to the state of the testator's proÂÂperty at the date of his will.] The Respondent has not brought this case within any one of the exceptions to the rule against giving an extended meaning to the word. " money :" (a) the testator himself has not given it an enlarged meaning ; (b) the will is not inoperative without such extended meaning : see Collins v. Collins (7) ; and. (c) this is not the case of a man who has Stock, and after directing his debts and legacies to be paid gives " whatever may then remain of my money " to A. B. That does pass the general residue, no doubt, because the gift inÂÂvolves the turning of the Stock into " money." The passage already cited from 1 Jarman on Wills shows that that principle can never (c) 2 Mer. 533. meat, infra, at p. 61. (d) 1 Swanst. 71. (5) I. It. 7 Eq. 342. (e) 7 Ves. 532. (6) 3 App. Cas. 425. (f) As to the result of the affidavit, (7) L. It. 12 Eq. 455. see THE LORD CHANcsuou's judg LAW REPORTS (IRELAND). [L. R. I. Appeal. apply when there is a subsequent general residuary clause. In 1879. Rogers T. Thomas (1) and Dozoson v. Gaskoin (2) there were no BEVAN general residuary gifts; so also in Boardman v. Stanley (3). The BEVAN. interpretation contended for by the Respondent destroys the effect of the residuary clause here altogether. The will must be taken to speak at the testator's death. [BALL, C. The word "ready money " seems to support the Appellant's view.] In Re Powell' s Trust (4) Sir W. Page Wood points out that the decisions exÂÂtending " money " so as to include the residue cannot apply to " ready money," which -is " a term specifically appropriated to a particular description of money." As to what is necessary to denote such a "contrary intention," under section 24 of the Wills Act, as will prevent a will from speaking as if executed at the tesÂÂtator's death : Goodlad v. Burnett (5) ; Ferguson v. Ferguson (6). A bequest of " foreign bonds or other securities" has-been held to pass foreign securities only, though the testator had a large personal estate invested in the British funds : Ferguson v. 0' Gilby (7). ExÂÂtraneous evidence as to the quantum of a testator's property at the date of his will is not to be admitted if it can possibly be avoided : Hicks v. &Mit (8) ; Jones v. Tucker (9) ; Gosden v. Dotterill (10). BALL, C. :- The question which upon this appeal we have to decide is-Whether a sum of 4000 Government New Three per cent. Stock, part of the assets of a testator whose property is being administered in this suit, passed under the words "ready money "...