Corcoran v O'Kane

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 26 February 1912
• Court: King's Bench Division (Ireland)
• Date: 26 February 1912

In re Corcoran, Deceased;

Corcoran

and

O'Kane.

Barton, J.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1913.

Will — Construction — Charitable devise — Will executed within three months of death — 7 & 8 Vict. c. 97, s. 16 — Devise to parish priest — Gift to the office and not for personal benefit — Trust for heir-at-law and annuitant.

Held (1), that the devise of the freehold house property to the parish priest of U. was a charitable devise, and, therefore, void as contravening the provisions of section 16 of the Charitable Donations and Bequests Act, the testator having died within three months of the date of the will.

(2) That the parish priest of U. was a trustee for testator's nephew P., in respect of the annuity of £10, and for the heir-at-law of testator as to the rest of the property.

Originating Summons.

By his will, dated the 14th June, 1888, James Corcoran provided as follows:— “I bequeath to my wife, Sarah Corcoran, for the term of her natural life, my property in Castlederg, consisting of two houses, with all my stock and chattels absolutely. I also empower my wife to mortgage the property to the amount of £50, if necessary, for her support. At my wife's demise I desire that the two houses become the property of the parish priest of Urney, on condition of paying £10 yearly to my brother Patrick's son Patrick (the blind boy), and also £1 yearly for masses for the repose of the souls of the deceased members of my family.”

Testator died two days after the execution of the will. He was the owner of the two houses in Castlederg in fee. The widow, Sarah Corcoran, died on the 22nd February, 1911. At the date of testator's death the Rev. James Connolly was parish priest of Urney, and he was succeeded in such office by the Rev. John M'Elhatton, who was succeeded by the defendant, the Rev. James O'Kane, who was priest of the parish at the date of the death of testator's widow, Sarah Corcoran. The plaintiff was a nephew and heir-at-law of testator and issued an originating summons, dated the 11th December, 1911, for the determination of the questions arising.

Henry, K.C. (with him Wylie), for the plaintiff, the heir-at-law:—

The gift to the parish priest of Urney of two houses in Castlederg is a charitable gift, and as the will was made only two days before testator's death, and purported to dispose of lands held in fee-simple, the same is void under the 16th section of 7 & 8 Vict. c. 97.

In Thornber v. Wilson (1), there was a gift to “the then

minister of the Roman Catholic chapel at Kendal,” of a surplus of the produce of real estate, and it was held to be void under the Mortmain Act. See report of same case in 3 Dr. 245. The ground of the decision on this point was that the gift was intended for the benefit of the church and not of the individual—for the office and not for the person. That principle governs this case. The circumstances of this case make it abundantly clear that (in the words of Kindersley, V.-C., in Thornber v. Wilson, p. 249) “it was not by reason of any personal regard or design of personal bounty” that this testator devised to the individual who should happen to fill the office of parish priest at the time of his wife's death. This is a gift to the parish priest, not in his individual capacity, but in his character of priest; and the devise is for charitable uses. It is an attempt to endow the office of the priest of that particular Roman Catholic church, and for the benefit of the parish, and is not intended to confer a personal benefit on an individual with a description of the person to be benefited. It is really a gift for the endowment of the Roman Catholic faith: Robb and Reid v. Dorrian (1); In re Delany; Conoley v. Quick (2). In In re Garrard (3) a gift to the vicar and churchwardens for the time being of Kington “to be applied by them in such manner as they shall in their sole discretion think fit,” was held charitable.

In the result the heir-at-law is entitled to the property devised, as in the case of an intestacy, charged with the payment of £10 a year to...