Catherine Stewart v Malachy Green, William Hynes, Elizabeth Bourke, and The Attorney-General

• Jurisdiction: Ireland
• Judgment Date: 15 November 1871
• Date: 15 November 1871
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

CATHERINE STEWART

and

MALACHY GREEN, WILLIAM HYNES, ELIZABETH BOURKE, AND THE ATTORNEY-GENERAL.

Drummond v. The Attorney-GeneralENR 2 H. L. C. 862.

Morice v. The Bishop of Durham 10 Ves. 521.

The Incorporated Society v. RichardsUNKIR 4 Ir. Eq. 177; S. C. 1 D. & War. 258.

West v. ShuttleworthENR 2 My. & K. 684.

Nash v. MorleyENR 5 Beav. 177.

Kendall v. GrangerENR 5 Beav. 300.

Townsend v. CarusENR 3 Hare, 257.

Carbery v. Cox 3 Ir. Ch. R. 231.

Walsh v. GladstoneENR 1 Phil. 290.

Williams v. KershawENR 5 Cl. & Fin. 111, n.

Smart v. Prujean 6 Ves. 560, 567.

Thornber v. WilsonENRENR 3 Drew. 245; S.C. 4 Drew. 350.

The Incorporated Society v. RichardsIR 4 Ir. Eq. 198.

Challenger v. ShepherdENR 8 T. R. 597.

Knight v. Selby 3 M. & Gr. 92.

Smith v. SmithENR 11 C. B. N. S. 121, 138.

Morice v. The Bishop of Durham 10 Ves. 521.

Ellis v. SelbyENR 7 Sim. 352.

Vezey v. JamsonENR 1 Sim. & St. 69.

Baker v. SuttonENR 1 Keen. 224.

Wilkinson v. LindgrenELR L. R. 5 Ch. App. 570.

Carbery v. CoxUNK 3 Ir. Ch. 231.

Henrion v. Bonham Ubi supra.

The Attorney-General v. Doyley 7 Ves. 58, n.

Nash v. MorleyENR 5 Beav. 300.

Vezey v. JamsonENR 1 Sim. & St. 71.

Morice v. The Bishop of Durham 10 Ves. 539.

Morice v. Bishop of Durham 10 Ves. 540.

Ommanney v. Butcher T. & R. 260.

The Incorporated Society v. Richards 1 Dru. & War. 258.

Will — "Charitable Bequest" — Parol Evidence — Trust.

470 THE IRISH REPORTS. I. R. Ch. App. rial Parliament is the order in which I have named them-the 1871. agitating and clamorous tenantry first, the bad and exacting land In re lords next, and the kind, indulgent, forbearing landlords last ! ESTATE OF If the affirmance of this order imports peril to these tenants of MARQUIS OF WATERFORD. the loss of something which the Statute intended they should have, they must seek redress at the hands of the House of Lords, or of the Legislature itself. The present appeal will be dismissed, but without costs, inasÂÂÂmuch as, in any view of the case, there were ample grounds for the apprehensions of the tenantry. LORD O'HAGAN, L. C. :- I agree that the affirmance of the order should be without costs, because of the magnitude of the interests involved and the novelty of the question raised. Appeal dismissed, without costs. See 34 & 35 Viet. c. 92. Solicitors for the Appellants : Messrs. Macrory and Co. Solicitor for the Owners : Mr. Robert Murdoch. Ch. App. CATHERINE STEWART v MA LA CHY GREEN, W 1LÂÂÂ1870. LIAR HYNES, ELIZABETH BOTTRKE, AND THE AT Nov. 14, 15. TORNEY-GENERAL. 1871. Will-" Charitable Bequest"-Parol Evidence-Trust. A. devised certain premises to trustees, upon trust "to pay the rents and profits thereof to E. B., Superioress of the Community of ladies professing the Roman Catholic religion, residing in the town. of B., and known and called by _the name of the Order of Mercy, and to the Superioress for the time being of the said Order, to be used, administered, and applied by her as such Superioress for the use and benefit of the said Community ;" and at the hearing parol eviÂÂÂdence was given to show that the Community in question was composed of a number of ladies voluntarily associated, who devoted themselves and the funds of the Community to certain specified charitable purposes Held (affirming the decision of the VICE-CRANCELLOR), that the gift failed as a " charitable bequest," the Community being a merely voluntary asso Von. V.] EQUITY SERIES. elation, not under any legal obligation to continue their charitable pursuits, and the trust not enforceable by the Court of Chancery. Sed queere (by the LORD JUSTICE OF APPEAL), whether the devise did not create a valid trust for the benefit of the ladies-in their natural capacities-who composed the Community at the time of the testator's death. APPEAL from a Decretal Order of the VICE-CHANCELLOR. Hugh Kirrelly, by his will, dated the 25th day of February, 1861, after giving certain pecuniary legacies, charged them and his debts, and funeral and testamentary expenses, upon four dwelling-houses in the town of Ballinasloe, which he devised to his executors, the Rev. Malachy Green and William Hynes, their heirs and exeÂÂÂcutors, and the survivor of them, and the heirs and executors of such survivor, upon trust to pay and discharge, out of the rents, issues, and profits thereof, the head-rents and taxes charged thereon, and, after payment thereof, to apply the residue of the rents, issues, and profits in payment of his funeral and testamentary expenses, debts and legacies, and, after payment thereof, in trust to pay one-third of the rents, issues, and profits of the said houses and premises to the heirs-at-law of his sister, Mrs. Honoria Murphy, and to pay the remaining two-thirds of the said rents, issues, and profits unto Elizabeth Bourke, Superioress of the Community of ladies professÂÂÂing the Roman Catholic religion, residing in the town of BallinaÂÂÂsloe, and known and called by the name of the Order of Mercy, and to the Superioress for the time being of the said Order, who should be resident in Ballinasloe, to be used, administered, and applied by her, as such Superioress, for the use and benefit of the said ComÂÂÂmunity of the Sisters of the Order of Mercy. The testator died on the 10th of March, 1864, and his will was proved by the Reverend Malachy Green alone, the other executor having renounced. Mrs. Honoria Murphy died in the lifetime of the testator. Catherine Stewart, the Plaintiff, was her only child and heiress-atÂÂÂlaw, and was also heiress-at-law and sole next of kin of the testaÂÂÂtor ; and in 1869 she filed her bill, praying administration of the real and personal estate of the testator, and that it might be declared that the trusts created by the will of the two-thirds of the rents of the said four houses were void, or would become void on THE IRISH REPORTS. (I. R. the death of the said Elizabeth Bourke, and that the rents and profits thereof, so far as the same were undisposed of by the will, formed part of the testator's residuary real estate. The Defendant, Elizabeth Bourke, in her answer, stated that the Community of the Sisters of the Order of Mercy was in the nature of a voluntary association of ladies, united under certain rules for solely charitable purposes, having for its chief local Superior the Roman Catholic Bishop of the diocese, and having an immediate Superioress who was elected by the Sisters of the Community according to certain rules, and that each Sister, on entering into the Community, took a vow of poverty, chastity, and obedience, and the service of the sick and ignorant ; that, in accordance with the • said vow of their order, the Sisters devoted themselves and the funds of their Community to the education of the poor, supplying in many cases clothing to the poorer children who attended their schools ; that they devoted themselves also to the visitation of the sick, supplying food and nourishment to the sick and convalescent, as well as bedding and clothing ; that they also gave assistance to servants out of place, and to labourers and tradesmen out of emÂÂÂployment, supplying the means of lodging and travelling to their places of employment, and of releasing from pawn the implements of their trade ; and she submitted that the gift of two-thirds of the rents and profits of the houses was a valid charitable bequest, and that the said two-thirds should be paid over to her, and the other Mothers Superior of the said Community for the time being. The cause was heard before the Vice-Chancellor upon motion for a decree, and at the hearing, on the 30th May, 1870, the answer of Elizabeth Bourke was read as an affidavit. On the 4th of July, 1870, the Vice-Chancellor made a decretal order declaring that the trusts in the will concerning the two-thirds of the rents and profits of the four dwelling-houses were good and valid trusts for the Defendant Elizabeth Bourke, during her life, the said two-thirds of the rents to be applied by her for the use and benefit of the Community of ladies professing the Catholic religion, now reÂÂÂsiding in the town of Ballinasloe, and known and called by the name of the Order of Mercy : further, that the trusts declared of the said two-thirds of the rents and profits after the death of ElizaÂÂÂbeth Bourke were void ; and that the rents of the houses, so far as VOL. V.] EQUITY SERIES. 473 they remained undisposed of by the will, formed part of the tes- Ch. App. tator's real estate ; and the usual accounts were directed. 1870. From that order Elizabeth Bourke appealed. STEWART V. Mr. James Robinson, Q. C., Mr. Lawless, Q. C., and Mr. ridgy, GREEN. for the Appellant. This is a good charitable gift ; and parol evidence is admissible to show the objects for which this Community of ladies was assoÂÂÂciated : Drummond v. The Attorney-General (1). The evidence shows...