Colgan v MacDonnell

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date31 Mar 1927
Colgan v. MacDonnell
In the Matter of the Will of JULIA MARY MacDONNELL,Deceased; FRANCIS JOSEPH COLGAN
Plaintiff
and
FRANCIS EDWARD ANTHONY MacDONNELL
Defendant.

Will - Construction - Bequest of sum of money - Cancellation, of charge -Beneficiary pre-deceasing testatrix - Lapse - Charge not released.

Construction Summons, before the Chief Justice in Lunacy.

The summons was brought by the plaintiff, Francis JosephColgan, administrator with the will annexed of Julia MaryMacDonnell, deceased, for the determination of two questionsarising on the construction of the will. The testatrix had, by thewords which will be found quoted in the judgment of the ChiefJustice, given the sum of £275 to her nephew, Francis WilliamMacDonnell, the intended gift or legacy being the amount of acharge secured for a term of years on lands of which he wasthe legal tenant for life. The words of the will directed orexplained that the charge was to be cancelled, and the wordsin question were placed within brackets. The remaindermanwas Francis Edward Anthony MacDonnell, the defendant inthis summons. Francis William MacDonnell had pre-deceasedthe testatrix. The questions to be determined were whether thesaid charge was released, the bequest thereby enuring for thebenefit of the remainderman, or, had the bequest, lapsed?

A will contained a number of pecuniary legacies. Testatrix havingsaid that she gave and bequeathed a certain sum of money to F.W. MacD.,added, within brackets, the words: "A charge which I have on his propertyof Dunfierth, and which I now cancel." The intended beneficiarypre-deceased the testatrix.

Held, that this was a simple bequest of the charge to the beneficiaryfor his own benefit, which lapsed by reason of his pre-deceasing thetestatrix.

Cur. adv. vult.

Kennedy C.J. :—This is a summons taken out by the administratorof Julia Mary MacDonnell, deceased, for the determinationof a question arising under her will.

The testatrix died on the 28th July, 1924, having made herwill, dated the 13th April, 1908. Administration, with the willannexed, was granted to the plaintiff on the 11th January, 1926.

The will contained a number of pecuniary legacies, introducedby the words—"I give and bequeath"—and amongstthem, the following:—

"£275 to my nephew, Francis William MacDonnell (a chargewhich I have on his property of Dunfierth, and which I nowcancel)."

Francis William MacDonnell died on the 4th December, 1915,and the question for determination is whether the...

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