Campbell, Deceased. M'Cabe v Campbell

• Jurisdiction: Ireland
• Judge: O'Connor J.
• Judgment Date: 17 June 1918
• Court: Chancery Division (Ireland)
• Docket Number: (1918. No. 496.)
• Date: 17 June 1918

Campbell

Deceased

M'Cabe

and

Campbell.

O'Connor J.

(1918. No. 496.)

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.

1918.

Will — Construction — Punctuation — Gift of farm and chattels to wife to manage to best advantage of self and children — Trust — Joint tenancy — Beneficial interest.

A testator left his farm and chattels to his wife “she to have and manage same to the best advantage to herself and her five children (naming them).”

Held, that the widow took as trustee for herself and her five children as joint tenants.

It is from the words and context of a will and not from the punctuation that the sense must be collected.

Originating Summons.

By his will, dated March 1st, 1907, William Campbell provided as follows:—

“I hereby leave to my wife, Mary Campbell, my farm of land, with dwelling-house and offices thereon. I also leave her all my stock on hands, horses, cattle, and chattels, which I may die possessed of, she to have and manage same to the best advantage to herself and her five children, viz., James, Catherine, Elizabeth, Minnie, and William.” Testator appointed the plaintiffs his executors. He died on the 19th April, 1907, and probate was duly granted on the 29th February, 1908. There appeared to be in the original will a full stop after the word “thereon.”

After the death of the testator, his widow (the defendant Mary Campbell) and his children continued to reside together on the farm, the youngest (the defendant William) being aged twenty-one years at the date of the testator's death.

The plaintiffs issued an originating summons for the determination of the questions arising for decision.

Sainsbury, for the plaintiffs.

Cusack for the defendant, the widow of testator:—

The widow takes the farm absolutely. It is the subject of a separate bequest absolute in its terms. The qualification “to have and manage same to the best advantage to herself and her five children” applies only to the stock on hands, horses, cattle, and chattels, and not to the farm. This qualification in the case of the chattels supplies the motive of the testator only, and does not create a trust, and the widow also takes the chattels absolutely. See Thorp v. Owen (1); Mackett v. Mackett (2); Bond v. Dickinson (3); Greene v. Greene (4); Lambe v. Eames (5); Berryman v. Berryman (6); Farwell on Powers (1916 ed.), at p. 541, et seq. See also In re Adams and the Kensington Vestry (7), and In re Humphrey's Estate (8).

The trend of modern decisions is against the creation of a trust, unless the language compels the Court to...