Clancarty v Clancarty

JurisdictionIreland
Judgment Date12 June 1893
Date12 June 1893
CourtChancery Division (Ireland)

M. R.

CLANCARTY
and
CLANCARTY.

Malim v. Keighley 2 Ves. Jun. 335, 337.

Knight v. BoughtonENR 11 Cl. & Fin. 551, 552.

Malim v. Keighley 2 Ves. Jun. 335, 337.

Briggs v. Penny 3 De. G. & Sm. 525; 3 Mac. N. & G. 546.

Briggs v. PennyENR 3 De G. & Sm. 525; 3 Mac. N. & G. 546.

ENR 3 De G. & Sm. 525.

3 Mac N. & G. 546.

Bernard v. MinshullENR Johns. 276.

Bardswell v. BardswellENR 9 Sim. 319.

Wood v. Cox 2 M. & Cr. 684.

Williams v. WilliamsENR 1 Sim. (N. S.), 358.

Irvine v. SullivanELR L. R. 8 Eq. 673.

Briggs v. Penny 3 Mac N. & G. 546.

Reid v. Atkinson Ir. R. 5 Eq. 373.

Stead v. Mellor 5 Ch. Div. 225.

Reid v. Atkinson Ir. R. 5 Eq. 373.

Briggs v. PennyENR 3 De G. & Sm. 525; 3 Mac N.

Bernard v. MinshullENR Johns. 276.

Briggs v. PennyENR 3 De G. & Sm. 525; 3 Mac. N. & G. 546.

Bernard v. MinshullENR Johns. 276.

Reid v. Atkinson Ir R. 5. Eq. 373.

Briggs v. Penny 3 Mac. N. & G. 546.

Bernard v. MinshullENR Johns. 276.

Stead v. Mellor 5 Ch. Div. 225.

Gibson v. FisherELR L. R. 5 Eq. 51.

Briggs v. Penny 3 Mac. N. & G. 546.

Stead v. Mellor 5 Ch. Div. 225.

Lambe v. EamesELR L. R. 6 Ch. App. 597.

Crockett v. CrokettENR 2 Ph. 553.

Godfrey v. GodfreyUNK 2 N. R. 16.

Briggs v. Penny 3 Mac. N. & G. 546.

Bernard v. MinshullENR Johns. 276.

Corporation of Gloucester v. WoodENR 3 Hare, 131.

Before WALKER, C., SIR PETER O'BRIEN, C.J., and FITZGIBBON and BARRY, L. JJ.

Bardswell v. BardswellENR 9 Sim. 319.

Greene v. Greene Ir. R. 3 Eq. at p. 640.

Lambe v. EamesELR L. R. 6 Ch. App. 597.

Briggs v. PennyENR 3 De G. & Sm. 525; 3 Mac. N.

Bernard v. MinshullENR Johns. 276.

Irvine v. SullivanELR L. R. 8 Eq. 673.

Williams v. WilliamsENR 1 Sim. (N. S.) 358.

Green v. MarsdenENR 1 Drew. 646.

Reeves v. BakerENR 18 Beav. 372.

Lambe v. EamesELR L. R. 6 Ch. App. 597.

Adams v. Kensington Vestry 27 Ch. Div. 410.

Hutchinson and Tenant 8 Ch. Div. 540.

Musssorie Bank v. RaynorELR 7 App. Cas. 321.

Gregory v. Edmundson 38 Ch. Div. 253.

Greene v. Greene Ir R. 3 Eq. 629.

Reid v. Atkinson Ir R. 5 Eq. 373.

Briggs v. PennyENR 3 De G. & Sm. 525; 3 Mac N. & G. 556 (App.).

Stead v. Mellor 5 Ch. Div. 225.

Bernard v. MinshullENR Johns. 276.

Malim v. Keighley 2 Ves. Jun. 333.

Knight v. BoughtonUNK 11 C. & F. 513.

Morice v. Bishop of Durham 10 Ves. 522.

Cary v. Cary 2 Sch. & Lef. 173.

Greene v. Greene Ir. R. 3 Eq. 629.

Reid v. Atkinson Ir. R. 5 Eq. 373.

Mussoorie Bank v. RaynorELR 7 App. Cas. 321.

Briggs v. PennyENR 3 De G. & Sm. 525; 3 Mac. N. & G. 546 (App.).

Bernard v. MinshullENR Johns. 276.

Barnes v. Grant 26 L. J. Ch. 92; 2 Jur. (N. S.) 1127.

Irvine v. SullivanELR L. R. 8 Eq. 673.

Lefroy v. Flood 4 Ir. Ch. R. 1.

Wright v. AtkynsENR 17 Ves. 255; 2 Giffard, 195.

Meredith v. HeneageENR 1 Sim. 542.

Corbet v. Corbet Ir. R. 7 Eq. 456.

Reid v. Atkinson Ir. R. 5 Eq. 373.

Briggs v. PennyENR 3 De G. & Sm. 525; 3 Mac. N. & G. 546 (App.).

Bernard v. MinshullENR Johns. 276.

Barnes v. Grant 26 L. J. Ch. 92; 2 Jur. (N. S.)

Briggs v. PennyENR 3 De G. & Sm. 525; on app. 3 Mac N. & G. 546.

Bernard v. MinshullENR Johns. 276.

Barnes v. Grant 2 Jur. (N. S.) 1127.

3 Mac N. & G. 546.

Bernard v. MinshullENR Johns. 276.

Briggs v. Penny 3 Mac N. & G. 546.

Briggs v. PennyENR 3 De G. & Sm. 525; 3 Mac N. & G. 546.

Barnes v. Grant 2 Jur. (N. S.) 1127.

Briggs v. PennyENR 3 De G. & Sm. 525; 3 Mac. N. & G. 546.

Lambe v. EamesELR L. R. 6 Ch. App. 597.

Stead v. Mellor 5 Ch. Div. 225.

In re Hutchinson and Tenant 8 Ch. Div. 540.

Kensington Vestry 27 Ch. Div. 394.

Gregory v. Edmondson 39 Ch. Div. 253.

Adams and the Kensington Vestry 27 Ch. Div. 394, 410.

Greene v. Greene Ir. R. 3 Eq. 629.

Reid v. Atkinson Ir. R. 5 Eq. 373.

Briggs v. PennyENR 3 De G. & Sm. 525; on appeal, 3 Mac N. & G. 546.

Reid v. Atkinson Ir. R. 5 Eq. 373.

Morice v. Bishop of Durham 10 Ves. 521.

Wright v. Atkyns T. & R. 141.

Williams v. WilliamsENR 1 Sim. N. S. 358, 369, 370.

Briggs v. PennyENRENR 3 De G. & Sm. 525; on app. 3 Mac. & G. 546.

Bernard v. MinshullENR Johns. 276.

Barnes v. Grant 2 Jur. (N. S.) 1127.

Stead v. Mellor 5 ch. Div. 225.

Bernard v. MinshullENR Johns. 276, at p. 289.

Briggs v. PennyENRENR 3 De G. & Sm. 525; on app. 3 Mac. & G. 542.

ENR 3 Mac. & G. at p. 557.

Irvine v. SullivanELR L. R. 8 Eq. 673, at p. 679.

Briggs v. PennyENR 3 Mac. & G. 546.

M'Cormick v. GroganELR L. R. 4 H. L. 82.

Barnes v. Grant 2 Jur. (N. S.) 1127.

In re Hutchinson & Tenant 8 Ch. Div. 540.

Briggs v. Penny 3 DeG. & Sm. 525; on app. 3 Mac. & G. 546.

Briggs v. PennyENR 3 Mac. & G. 546.

Lambe v. EamesELR L. R. 6 Ch. App. at p. 599.

In re Adams and Kensington Vestry 27 Ch. Div. 394.

Stead v. Mellor 5 Ch. Div. 225.

Bernard v. MinshullENR Johns. 276, at p. 288.

In re Diggles 39 Ch. div. 253.

Lambe v. EamesELR L. R. 6 Ch. App. 597.

Williams v. WilliamsENR 1 Sim. (N. S.) 358.

Reid v. Atkinson Ir. R. 5 Eq. 373.

M'Cormick v. Grogan Ir. R. 1 eq. 313.

Meredyth v. HeneageENR 1 Sim. 542.

ELR L. R. 4 H. L. 82.

3 De. G. & Sm. 525.

Bernard v. MinshullENR Johns, 276.

Barnes v. Grant 2 Jur. N. S. 1127.

Reid v. Atkinson Ir. R. 5 Eq. 373.

Greene v. Greene Ir. R. 3 Eq. 629.

ENR 3 De G. & Sm. 525.

Bowen v. LewisELR 9 App. Cas.890, at p. 913.

Will Precatory trust Residuary gift to testator's wife.

LAW REPORTS (IRELAND). [L. R.I. CLANCARTY v. CLANCARTY. (1892. No. 445.) Trill-Precatory trust-Residuary gift to testator's wife. A testator, by his will, made in August, 1890, charged his unsettled estate, with an annuity in favour of his wife, to be taken by her in addition to a jointure already charged on his settled estate ; and, after making certain specific bequests, dealt with his residuary estate in the following manner :- " I devise and bequeath all my residuary real and personal estate whatsoever to my said dear wife, her heirs, executors, and administrators, respectively, well knowing she will religiously carry out what she knows to be my wishes in the disposal of it." The testator's wife stated that up to July, 1890, the tesÂÂtator's intentions, as known to her from his conversations, as to the disposal of his furniture, pictures, plate, &c., appeared to fluctuate, but that after that date the impression left on her mind was that it was his intention to dispossess his eldest son of whatever he could keep from him. An undated memorandum in the testator's handwriting was produced, in which it was stated that he wished to leave his furniture, pictures, and plate to his wife and two younger children. The testator never made any statement to his wife as to the disposiÂÂtion of his unsettled real estate or his other personal property: Held, by the Master of the Rolls, that the testator intended his wife to take the residue clothed with a trust, but that, at the same time, this trust was not sufficiently certain and definite to be valid and effectual, and that, therefore, she held the unsettled real estate as trustee for the heir-at-law, and the undisposed-of personalty as trustee for the next-of-kin of the testator. Held, by the Court of Appeal (reversing the decision of the Master of the Rolls), that the wife took the residuary real and personal estate absolutely for her own benefit. Briggs v. Penny (3 De G. & Sm. 525 ; 3 Mac. & G. 546 (App.)) disÂÂtinguished. ACTION claiming to have the real and personal estate of the late Earl of Clancarty administered by the Court. The statement of claim asked that the plaintiff, who was the widow and executrix of the late Earl, should be declared entitled, under the terms of his will, to his residuary real and personal estate, absolutely. By his will, which was dated August 12, 1890, the late Earl VOL. XXX1.1 CHANCERY DIVISION. 531 of Clancarty appointed his wife his sole executrix and guardian of M. R. his infant children during her widowhood ; he charged his un- 1893. settled estates, with the payment to his wife of an annuity of 400, CLANCA.RTY in addition to the jointure provided for her by his marriage set- CLANCABTY. Clement ; he exercised a power of appointment in favour of his two younger children over funds comprised in the said settlement. He made some specific bequests to his brothers, sisters, mother, and servants, and then disposed of the residue in the following manner :-" I devise and bequeath all my residuary real and personal estate whatsoever to my dear wife, her heirs, executors, and administrators, respectively, well knowing that she will reÂÂligiously carry out what she knows to be my wishes in the disposal of it." One of the defendants, the Earl of Clancarty, by his defence subÂÂmitted that upon the true construction of this residuary devise and bequest the testator intended to constitute, and did in fact constiÂÂtute, his wife a trustee of all his residuary real and personal estate, and that the testator did not intend the plaintiff to take the same beneficially, but in trust that she would carry out certain wishes and intentions of the said testator, which he had verbally or otherÂÂwise communicated to her, and which she promised to perform ; and the defendant charged that the trusts so communicated to the plaintiff were in his favour and for his benefit. In the alternative, the Earl of Clancarty submitted that the object of the said trusts, not being specified or declared by the said will, the said trusts were uncertain, and incapable of being carried out, and accordingly that the plaintiff was a trustee of such residuary estate, so far as it was real property, for him as the heir-at-law of the testator, and so far as the same was personal property, for the plaintiff and the next-of-kin of the testator, including the said defendant. The other two defendants were the younger children of the late Earl. In reply to interrogatories propounded on behalf of the Earl of Clancarty, the plaintiff stated as follows ;-" My son, the Earl of Clancarty, was married on the 18th day of July, 1889. I had several conversations with my husband, the late Earl of Clancarty, both before...

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