Butler v Meagher

• Jurisdiction: Ireland
• Judgment Date: 12 April 1931
• Date: 12 April 1931
• Court: Supreme Court (Irish Free State)

Supreme Court.

In re Mulcahy; Butler v. Meagher

In the MATTER of the Will and Codicil of REV. WILLIAM J. MULCAHY, Deceased; JOHN BUTLERand Another

Plaintiffs

and

REV. MICHAEL T. MEAGHER and Another, Defendants (1)

Will - Ambiguity - Charitable bequest - Certainty of charitable object - Uncertainty in name of legatee - Scheme.

Appeal by the defendant, Rev. M. Slattery, from the order of Johnston J., dated 14th October, 1929, in so far as it answered the first and second questions submitted on summary summons in the affirmative and negative respectively.

The plaintiffs in the action were John Butler and Rev. William O'Grady, suing as executors of the will and codicil of Rev. William J. Mulcahy, deceased. The defendants were Rev. Michael T. Meagher, C.S.Sp., Superior of the Holy Ghost Fathers of Ireland, and Rev. M. Slattery, Provincial of the Society of African Missions.

The said will contained the following bequest:—"To the Director of China Mission I leave and bequeath one moiety of my shares in National Bank, Ltd., for the propagation of the Faith in China, and the other moiety of my said shares I will and bequeath to the Director of the African Mission for a like object in Africa."

The summary summons asked to have the following questions determined by the Court:—

"1. Upon the true construction of the will, and in the events that have happened, is the legacy in the said will described as

'the other moiety of my said shares' payable to the defendant, Rev. Michael T. Meagher, C.S.Sp., of St. Mary's College, Rathmines, as Director of the African Mission conducted by the Holy Ghost Fathers of Ireland?"

"2. Is the said legacy payable to the defendant, Rev. M. Slattery, of the African Mission, Blackrock Road, Cork, Provincial of the Society of African Missions?"

Johnston J., by the order appealed from, answered the first question in the affirmative, and the second question in the negative. The notice of appeal asked that, in lieu thereof, the first question should be answered in the negative, and the second question in the affirmative.

The facts of the case, and the evidence given, have been summarised in the head-note, and are fully set out in the judgment of FitzGibbon J.

A testator, domiciled and dying in Ireland, bequeathed shares to "the Director of the African Mission." There was no society known as "the African Mission," and no individual with the official designation of"Director of the African Mission." There were, however, two societies which carried on missionary work in Africa, one of them being known in English as "The Society of African Missions," its principal officer being the "Provincial." The other Society possessed an Irish Mission to Africa, of which the principal officer was the "Secretary," who was also described in a French publication of the Society as "Directeur." The testator had been on terms of intimacy with the latter officer, and had sent him a subscription, and in his letter enclosing the subscription he referred to "the needs of your great African Mission." The testator had also known the Provincial of the former Society, had discussed its work with him, was in regular receipt of its publication, called "The African Missioner," and had also contributed, although a much smaller amount, to its funds.

Held by the Supreme Court (Kennedy C.J. and FitzGibbon J.; Murnaghan J. dissenting), reversing Johnson J., that the gift was void for uncertainty in the name of the legatee; that the gift was a good charitable bequest for the propagation of the Faith in Africa; and that it should be referred be Chambers to settle a scheme, with the approval of the Attorney-General, to carry out that object.

Cur. adv. vult.

Kennedy C.J. :—

The facts of this case are very fully stated in the judgment about to be read by Mr. Justice FitzGibbon. I can add nothing to his statement to which I refer.

Applying my mind to the will before us, the opinion which I have formed is that the testator gave his National Bank shares

to the two missionary fields without intending to specify any particular body of missioners—that is to say, he bequeathed a moiety of the shares to missionary work in Africa, of which he would quite naturally speak as "the African Mission," and as naturally he would direct payment to the responsible person in general charge of such work, though it is highly probable that he had in mind that there would be a person in charge of that work in Ireland. Therefore, I think there is no uncertainty as to the charitable object of the gift, but an uncertainty as to the trustee to whom it is to be paid or transferred. Accordingly, there must be a scheme, but as there are two organisations in Ireland actively engaged in the charitable work, there would not appear to be a need for any more elaborate scheme than a division between the two organisations in trust for the object. I concur in the suggestion made by Mr. Justice FitzGibbon.

FitzGibbon J. :—

By his will, dated November 18th, 1927, the Rev. William J. Mulcahy, Parish Priest of Croagh, in the County of Limerick, who died on December 7th, 1927, made a bequest in these terms: "To the Director of China Mission I leave and bequeath one moiety of my shares in National Bank, Ltd., for the propagation of the Faith in China, and the other moiety of my said shares I will and bequeath to the Director of the African Mission for a like object in Africa."

No question arose with reference to the first-mentioned moiety of the shares of the testator in the National Bank, which was claimed by, and transferred to, the director...