Chambers v Fahy

• Jurisdiction: Ireland
• Judgment Date: 01 January 1931
• Date: 01 January 1931
• Court: High Court (Irish Free State)

High Court.

Chambers v. Fahy

MARGARET CHAMBERS

Appellant

and

Rev. JOHN FAHY,Continued in the names of Rev. N. ROCHE (Executor of the Will of Rev. JOHN FAHY), PATRICK FAHY, WILLIAM FAHY, JEREMIAH O'MAHONY (Executor of MARY O'MAHONY), and DENIS DUGGAN (Executor of PATRICK FAHY, Senior) (1)

Will - Construction - Beneficial interest or trust - Power of appointment.

Appeal from the Circuit Court.

Patrick Fahy died on 10th June, 1900, leaving a wife and five children, of whom the plaintiff, Margaret Chambers, was one. His will, dated 5th June, 1900, was as follows:— "I, Patrick Fahy, Farlistown, Ballinhassig, County Cork, farmer, make this my last will and testament, revoking all wills previously made by me. I appoint Denis Duggan, Goggin Hill, and William Duggan, Kilnaglory, as executors of my will. I leave and bequeath to my brother, Rev. J. Fahy, 8 George's Quay, Cork, my two farms, the insurance on my life, and the insurance on the joint lives of myself and my wife, with all the property which I shall die possessed of or entitled to. He is to pay ail my just debts and funeral expenses. After my debts are paid, I leave absolutely all my property to my brother, Rev. J. Fahy with full power to dispose of it as he thinks fit, for the use and benefit of my wife and children." Probate of the will was granted to the two executors named therein, Denis Duggan and William Duggan, at the District Registry at Cork on 11th February, 1901. The testator's wife died in 1903, intestate. Rev. J. Fahy made certain dispositions of the property among the testator's children, but disputes as to the division of the property arose, and on 20th July, 1921, the plaintiff issued a writ against Rev. J. Fahy and the surviving executor of the will of Patrick Fahy, the claim as set out in the statement of claim being as follows:—

"(1) A declaration that, according to the true construction of the will of Patrick Fahy, deceased, the lands and hereditaments of Farlistown and Ballinlochy, in the County of Cork, and all the personal property of the said Patrick Fahy, are, and have been, held by the defendant, Canon Fahy, since the

death of Patrick Fahy aforesaid, as trustee thereof for the widow and children of the said Patrick Fahy as tenants in common in equal shares. (2) An order that the trusts of the will of the late Patrick Fahy aforesaid be enforced and carried into execution under the direction of the Court. (3) An order that all deeds executed by the defendant, Canon Fahy, and all instruments or dispositions, made by any person deriving title under the said defendant, concerning the lands or property aforesaid, in breach of, or not in accordance with, the trusts of the said will of Patrick Fahy, deceased, be set aside, and that the same be delivered up to be cancelled. (4) If necessary, administration of the estate of Patrick Fahy, deceased. (5) An order that all necessary accounts and inquiries be directed and taken. (6) Such further and other relief in the premises as to the Court shall seem meet. (7) Costs. The defendant, Canon Fahy, is being sued in his representative capacity as trustee under the will of Patrick Fahy, deceased, as well as in his personal capacity. The defendant, Denis Duggan, is sued as surviving executor of the will of Patrick Fahy, deceased, and in his personal capacity."

Protracted negotiations for a settlement took place between the parties, but without effect, and subsequently the proceedings were transferred to the Court of the Circuit Court Judge for Cork by order made by Hanna J., on consent, on 28th September, 1925. On 30th April, 1926 a primary decree for administration was granted by the Circuit Court Judge, and on 8th February, 1929, this decree was discharged by him and the action dismissed. From this decision the plaintiff appealed to the High Court. The further facts are set out in the judgments. Rev. J. Fahy (Canon Fahy) having died, proceedings were continued against his executor, Rev. N. Roche.

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