Corballis v Corballis

• Jurisdiction: Ireland
• Judgment Date: 01 July 1882
• Date: 01 July 1882
• Court: Chancery Division (Ireland)

V. C.

CORBALLIS

and

CORBALLIS.

Harries' TrustsENR Johns. 199.

De Lisle v. HodgesELR L. R. 17 Eq. 440.

Walpole v. AlthorpELR L. R. 4 Eq. 37.

Page v. Leapingwell 18 Ves. 463.

Elwes v. CaustonENR 30 Beav. 554.

Walpole v. ApthorpELR L. R. 4 Eq. 37.

Petre v. PetreENR 14 Beav. 197.

De Lisle v. HodgesELR L. R. 17 Eq.450

Fitzpatrick v. Knaresborough See report, 13 Ir. Eq. R. 338.

Arkell v. FletcherENR 10 Sim. 299.

Stone v. GreeningENR 13 Sim. 390.

Webber v. Stanley 16 C. B. (N.S.) 698.

Hall v. FisherENR 1 Coll. 47.

Bothamley v. ShersonELR L. R. 20 Eq. 304.

Hancox v. Abbey 11 Ves. 179.

Evans v. CockeramENR 1 Coll. 428.

Courtney v. FerrersENR 1 Sim. 137.

Harries' TrustsENR Johns. 199.

Ridge v. Newton 2 Dr. & War. 239.

Will Construction Description of property Recitals Locke King's Act 17 & 18 Vict. c. 113, s. 1;30 & 31 Vict. c. 69, s. 1; 40 & 41 Vict. c. 34 Policy of insurance "Residue" Contrary intention.

VOL. IX.) CHANCERY DIVISION. 300 CORBALLIS v. CORBALLIS. v. C. 1682. Will-Constructian-Description of property-Recitals-Locke Sing's Act-17 & 18 Vict. c. 113, s. 1; 30 & 31 Vict. c. 69, s. 1 ; 40 & 41 Viet. c. 34-Policy of insurance-" Residue"-Contrary intention. A testator, after reciting that he was possessed of property in D. for the residue of terms of years, bequeathed " his said D. property." He was entitled to freeholds as well as leaseholdsin D. :-Held, that the leaseholds only passed under this gift. The testator directed that, after payment of an annuity of 50 a-year to his nephew, the rents of his Dublin property (which, upon the construction of the will, was held to mean the testator's chattels real in Dublin) should be apÂÂplied in providing a fund for the payment of all charges affecting his Dublin property at his decease, and that if the fund so provided should be insufficient for the purpose, his said Dublin property should be charged with the payment of the balance of such charges. Two mortgages had been granted by the tesÂÂtator, one of which included fee-simple property and chattels real of the testator at Dublin, and personal estate, part of which was specifically bequeathed ; the second affected the same property, except premises at Wood-quay (being part of the Dublin fee-simple property) : Held, that the Dublin chattel property was constituted by the will a primary fund for the payment of the mortgages, to that extent excluding the operation of Locke King's Act ; but that after its exhaustion the deficiency should be apportioned among the remaining subjects of the mortgage. The testator, after reciting that he was entitled to a policy of insurance on his life for 2000, bequeathed 400, part thereof, to E. ; 100 and 100, other parts thereof, to two other legatees ; and he left " the residue " to J. H. C. At the time of the testator's death, considerable sums by way of bonus were added to the policy: Held, that the gift of " the residue " of the moneys, payable on foot of the insurance, was residuary and not specific, and that J. H. C. took the entire residue of the proceeds of the policy, including the bonuses, but subject to any liabilities for the satisfaction of which the policy was liable to be resorted to, and that such liabilities were to be borne primarily by the legatee of such residue, in exoneration of the specific legatees of the insurance. The testator, after reciting that he was entitled to a sum standing in the Court of Chancery, to the credit of a certain cause, subject to the life estate therein of E. T. C., bequeathed all his interest in the said sum upon certain trusts. He was entitled to an expectant interest in a sum of 3000 Stock, standing to the credit of the cause, and retained to answer an annuity of 105 to E. T. C. for life. The residue of the funds to the credit of the cause, including other sums to VOL. IX. 2 C LAW REPORTS (IRELAND). [L. R.I. which the testator was entitled, were liable to make up any deficiency of the 3000 Stock in payment of the annuity; but E. T. C. was not otherwise inteÂÂrested therein : Held, that the testator's interest in the 3000 alone passed under the above bequest, and that the gift did not extend to the other moneys to the credit of the cause. AL-11°N to administer the real and personal estate of William Richard Corballis, and to carry out the trusts of his will dated the 26th February, 1875, upon the construction of which certain quesÂÂtions arose. The will commenced with the following recital and disposition of the testator's Dublin property :-" Whereas, I am possessed of certain property in the city of Dublin for the residue of certain terms of years, I hereby give and bequeath my said Dublin proÂÂperty to my cousin Richard J. Corballis, his executors, adminisÂÂtrators and assigns, upon trust for such of the sons of my brother James Henry Corballis as shall, at the time of my decease, be his second son, for life," &c. ; then followed certain gifts in remainder of the same property (which it is unnecessary to set out in detail) to other sons, and to the daughters of his said brother, and their issue. The will then proceeded as follows :-" I hereby direct that my said trustee shall, until one of the sons of my said brother shall attain the age of twenty-one years, pay and apply the rents and profits of my said Dublin property as follows :-first, in payÂÂing the sum of 50 a-year towards the education of such of said sons as shall for the time being be presumptively entitled under the provisions hereinbef ore contained to the first life estate for the time being in the same premises on his attaining twenty-one years ; next, in providing a fund for the payment of all charges affecting my said Dublin property at the time of my decease; and lastly, in accumulating the balance, if any, until one of the said sons of my said brother shall attain the age of twenty-one years, such accumulations to be paid to him on his attaining twenty-one years. If the fund provided for the payment of the charges affectÂÂing my said Dublin property is insufficient for the purpose, then I direct the said Dublin property shall be subject to and charged with the payment of the balance of such charges. And whereas I am entitled to an insurance on my life for the sum of 2000, effected Vox.. IX.] CHANCERY DIVISION. 311 with the North British and Mercantile Insurance Company, I Y. C. leave and bequeath same in manner following, that is to say, the 1882. sum of 400, part thereof, to my sister Emily Matilda Corballis ; CORBALLI8 the sum of 100, other part thereof, to my said brother's wife coRBAnus. Constance Lucretia Corballis, for her sole and separate use ; the sum of 100, other part thereof, to my said brother James Henry CorÂÂballis ; and the residue thereof I leave and bequeath to the son of my said brother James Henry Corballis, who shall for the time being be his third son, to be paid to him when he arrives at the age of twenty-one years ; but if there shall be no son of my said brother who, on his arriving at the age of twenty-one years, shall be his third son then living, then I leave and bequeath such residue to the eldest daughter of my said brother James Henry Corballis, on her attaining the age of twenty-one years. I direct that until my said brother's third son, or his said eldest daughter, shall atÂÂtain the age of twenty-one years, the residue of said insurance shall be invested in Government New Three per cent. Stock, or upon mortgage of real estate ; and that the sum of 50, part of the income or annual proceeds thereof, shall bo applied for the eduÂÂcation or benefit of my said brother's third son for the time being, or of his said daughter, as the case may be ; and that the residue of such insurance or annual produce shall be accumulated for the benefit of the persons who shall become entitled to the principal of the said residue. I empower such of the sons of my said brother James Henry Corballis as shall for the time being be entitled to an estate for life in possession of my said Dublin property, to charge same with a jointure for any wife he may marry, not exÂÂceeding the sum of 100 a-year. And whereas I am entitled to a certain sum now standing in the Court of Chancery in Ireland, subject to the life estate therein of my aunt Emily Theresa CorÂÂballis, I give and bequeath all my interest in said sum to the said Richard J. Corballis, of Rosemount, in trust however for the chilÂÂdren of my said brother, other than his first son, or such of his sons as...