Clancy, Re; McDonald v Attorney-General

• Jurisdiction: Ireland
• Judgment Date: 18 December 1943
• Date: 18 December 1943
• Court: High Court

Aitken

and

Attorney-General and Others

In re Clancy; McDonald

and

Attorney-General

-Charitable bequests -Whether marshalling applicable in favour of charities - General estate comprising proceeds of sale of lands and pure personalty - Pecuniary bequests out of such estate for charitable purposes - Bequest of residue for charitable purposes -Charitable Donations and Bequests Act, 1844 (7 8 Vict., c. 97), s. 16.

-Charitable bequests -Whether marshalling applicable in favour of charities - Mixed fund - Residuary bequests for charitable purposes - Residue comprising leasehold premises and pure personalty - Will made within three months of death of testatrix - Whether gift to charitable body capable of being construed as a gift to individuals - Charitable Donations and Bequests Act, 1844 (7 8 Vict., c. 97), s. 16.

Testator directed his executors to sell his land, livestock and other effects, and then directed them to pay certain legacies, including charitable legacies, out of his estate, he left all the residue of his estate to his executors upon trust to apply the same for such charitable purposes in Ireland as they might think fit, provided that if he died within three months of the date of his will then he gave so much of the residue as his executors would not, in that event, be entitled to apply for said charitable purposes to his executors to be applied by them for such purposes as they might think fit. He died within three months from the date of his will. Held that the charitable legacies must abate: that proportion of the assets available for legacies which represented the value of the real estate would be the measure of abatement for the charitable pecuniary legacies, and the residue applicable to charity would abate by so much of the residue as represented proceeds of the land. The Court would not apply the principle of marshalling in favour of the charitable legacies. In re Elwood; Fitzpatrick v. Maynooth Mission to ChinaIR [1944] I.R. 344 distinguished.

1. M. C., by her will, made on the 2nd November, 1940, bequeathed certain pecuniary legacies, and then directed...