O'Brien v Condon

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 11 November 1904
• Court: High Court
• Docket Number: (1904. No. 850.)
• Date: 11 November 1904

O'Brien

and

Condon.

M. R.

(1904. No. 850.)

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.

1905.

Will — Secret trust — Gift to legatee “to be distributed as he thinks right” — Beneficial interest — Beneficiary under secret trust an attesting witness of will — Wills Act (1 Vict. c. 26), s. 15.

A testator bequeathed personalty to O., “to be distributed as he thinks right.” He appointed no executor. O. was the person who prepared testator's will, and was verbally informed at the time of the execution thereof by testator that he wished him to do “as he thought fit with the money, to distribute it, after payment of debts, &c.,” among five named persons, of whom B. (one of the next-of-kin) was one. O. accepted the trust:—

Held, that O. was, under the terms of the will, entitled for his own benefit; but that, as a secret trust had been accepted by him, he took on a trust enforceable by the Court for the beneficiaries named by the testator (1).

B. Was a witness to the will:—

Held, that she was not thereby incapacitated from taking a benefit under the secret trust.

Re Fleetwood (15 Ch. D. 594) on this point not followed.

Originating Summons.

John O'Brien, of Doneraile, in the county of Cork, shoemaker, made his will, dated 7th March, 1904, in the words following:—“I, John O'Brien, do hereby will and bequeath any money I shall die possessed of (including the money left to me by my brother James O'Brien) to the Rev. Walter O'Brien, O.C., Doneraile, to be distributed as he thinks right.”

The testator appointed no executor. He died 23rd March, 1904.

On the 22nd August, 1904, letters of administration, with the will annexed, of the personal estate were granted to the Rev. Walter O'Brien. In an affidavit made by him he stated as follows:—“I attended the deceased as a clergyman, and it was I who prepared the said document (the will) of the 7th March, 1904. The deceased informed me that he wished me to do entirely as 1 thought fit with his money, to distribute it after payment of debts, funeral expenses (including headstone, and providing for masses for himself and his brother), among the following persons:—Bridget Condon, Ellen Roche, Michael Dunne, David Dunne, and James Dunne. I asked him to say how much was to go to this person and how much to that, and he absolutely refused to say. I was to arrange all that myself.”

The assets amounted to about £1000. Bridget Condon was one of four attesting witnesses to the will, and was also one of the next-of-kin of the deceased.

On 30th September, 1904, an originating summons was issued for determination of the questions arising on the construction of the will by the administrator, the Rev. Father O'Brien.

D. M'C. Mahony, for the plaintiff:—

1. On the face of the will itself there is no trust disclosed, and plaintiff is entitled to the property beneficially. In Fenton v. Nevin (1) the ground of the decision was that there the gift was to the legatee as executor, and that was the basis of the decision. Here the plaintiff is neither an executor nor trustee under the will. See also Reid v. Atkinson (2). The word “distribute” means no more than the more usual term, “dispose of.” The same expression occurs in Reid v. Atkinson (2). See also Sullivan v. Sullivan (3).

2. Evidence is, however, admissible to show the existence of a secret trust which is binding, and the plaintiff submits to hold the property for the persons and purposes specified to him by the

testator: Scott v. Brownrigg (1); In re Fleetwood (2). In Hetley v. Hetley (3), Joyce, J., held that parol evidence was not admissible, and doubted the correctness of In re Fleetwood (2). But in the later case of In re Huxtable (4), which went to the Court of Appeal, oral evidence was acted on to show what the particular purposes were.

3. Bridget Condon does not lose the benefit under the secret trust by the fact that she or her husband witnessed the will: section 15 of the Wills Act. Here Bridget Condon takes nothing “thereby,” i.e. by the will. It is only by reason of the secret trust that she becomes entitled to anything. Even if the decision of Hall, V.-C., in In re Fleetwood (2), on this point be correct, it does not rule the present case. There the will and codicils themselves showed a trust for other people, and it was consequently only necessary to show by oral evidence who those other persons were. In one sense, therefore, Mary Head took under the will. That is not the case here. See also Sullivan v. Sullivan (5).

Fitzhenry, for the beneficiaries, other than Bridget Condon, claiming under a secret trust:—

Bridget Condon, by witnessing the will of the testator, has deprived herself of all benefit. Once a secret trust is established, then the effect is the same as if that trust is incorporated in the will: Wills Act (1 Vict. c. 26), s. 15. In re Fleetwood (2) governs this case. The beneficiary, who was held disentitled by reason of her witnessing the testamentary instrument in that case, was not mentioned in it at all.

A. M. Sullivan, for Bridget Condon:—

(He also, by order of the Court, represented the next-of-kin of the testator.)

There is a trust disclosed on the face of this will, and the case differs from those referred to. The will itself shows that the gift to Father O'Brien is not one for his own benefit. There is no

alternative given to the reverend gentleman. The property is to be “distributed” by him as he thinks right. He only receives it for the purpose of...