Davy and Another v Redington and Others

• Jurisdiction: Ireland
• Judgment Date: 19 April 1917
• Date: 19 April 1917
• Docket Number: (1915. No. 578.)
• Court: Court of Appeal (Ireland)

Davy and Another

and

Redington and Others (1).

Appeal.

(1915. No. 578.)

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.

1917.

Will — Construction — “My Real Estate consisting of my Interest in the Lands of D” — Separate Disposition of Personalty — Beneficial Interest in charges affecting the Lands.

A testator possessed of real estate and entitled to the beneficial interest in certain charges upon a portion of his lands, made a devise of his real estate consisting of his interest in the lands of D. and K., and also disposed separately of his personal estate.

Held, that the beneficial interest in the charges did not pass under the terms of the devise.

Technical expressions used in a will must be given the meaning assigned to them by law, unless the context contains a plain indication of a contrary intention.

Mackesy v. Mackesy, [1896] 1 I. R. 511; Kilkelly v. Powell, [1897] 1 I. R. 457, distinguished.

Appeal from an order made by Barton J. declaring that the testator's beneficial interest in charges upon certain lands passed under the devise of the real estate.

By his will, dated 2nd September, 1905, John Redington, who died on 22nd August, 1911, disposed of his property as follows:— “I give, devise, and bequeath to Patrick J. Davy, of Killaghbeg, Ballinasloe, Co. Galway, and Thomas M. Kenny, of Galway, solicitor, whom I hereby appoint trustees and executors of this my last will and testament, all my real leasehold and personal property of whatsoever nature and kind to stand possessed thereof upon trust to receive the dividends, income, and profits thereof, with power to continue or vary the investments, and to invest any portion of my assets which may consist of ready money, and be available for such purpose, after payment of my just debts, in such securities as trustees are by law authorized to invest and to receive the dividends, income, and proceeds, of all such property in trust for my dear wife during her life, and upon her death my trustees are to hold my real estate consisting of my interest in the lands of Dangan and Knocknacarragh, in trust to permit my

eldest son, Thomas Nicholas Redington, as tenant for life to receive the rents and profits of said lands, and upon his decease in trust for his issue in male tail, or female tail, and should the said Thomas Nicholas Redington die without such issue, and in default thereof my executors are to stand possessed of said real estate on the same terms as are expressed of and concerning my personalty. Upon the death of my said wife I direct and empower my executors out of my personal estate to pay to my sons Charles Redington, and Cecil Dudley Redington the sum of £500 each, to be received by them in full discharge of all claims and demands whatsoever that they may have under my settlement, or this my will, or as my next-of-kin, it being my intention that they should only participate in my assets to the extent mentioned. After the payment of the said sums of £500 as aforesaid my trustees are out of the residue to set apart and invest a sufficient sum or sums to secure an annuity of £80 for my eldest daughter, May Redington, during her life, or until marriage, as hereinafter provided, and an annuity of £100 for any other daughter that may be unmarried and a spinster (not a widow) at the time of my decease, and continue to pay such annuity or annuities until the date or dates of their respective marriages, and upon such marriage they are to become entitled to an equal share of my residuary estate as is hereinafter provided, but said annuities are only to spring from the death of my wife, and the residue of my personal property, on the death of my wife, and after payment of said legacies of £500 each to my two younger sons, and making provision by investment for the annuity or annuities of £80 and £100 for my unmarried daughters as aforesaid that may survive me, is to be divided amongst all my daughters, share and share alike.”

The testator was, at the time of his death, entitled to an undivided third of the freehold estate in the lands of Dangan. He was also beneficially entitled to the interest in a family charge and mortgage on the lands, and he was absolute owner of the lands of Knocknacarragh. An action was brought by the executors and trustees for a declaration that the sums included in the family charge and mortgage were well charged on the lands of Dangan. The main question in the case was whether the testator's beneficial interest in the charge and mortgage passed under the devise of “my real estate consisting of my interest in the lands of Dangan,” or whether it was included in the personal estate disposed of by the testator. Barton J. held that the charges passed under the devise, and from that decision this appeal was taken by the executors and trustees.

Fetherstonhaugh K.C. and Pringle, for the appellants:—

The testator kept his realty and personalty apart, and dealt with each separately. His “interest” in the lands of Dangan consisted of an undivided third, and that is all that passed under the devise in the first part of the will. A general devise does not pass the beneficial interest in a mortgage: Hawkins on Wills, 2nd ed., p. 49. By the separate disposition of his personal estate or personalty, the testator made it quite clear that he did not intend the charge and mortgage to pass under the devise. The case is, therefore, distinguishable from Mackesy v. Mackesy (1) and from Kilkelly v. Kilkelly (2), in which the words of devise were “all my estate and interest” without any disposition of the personal estate.

Pigot K.C., Dickie K.C., and Sainsbury, for the respondents:—

It is manifest that the testator had under consideration (a) all that he possessed beneficially in connexion with the lands of Dangan and Knocknacarragh; (b) his personalty unconnected with these lands. The phrase, “my real estate,” &c., in this will was a geographical description of what the testator possessed or was entitled to in the two localities mentioned.

Where there are in a will words analogous to the phrase “all my estate and interest,” to which a definite meaning has, in law, been assigned, Mackesy v. Mackesy (1) and Kilkelly v. Powell (2) are clear authorities that under a devise of “my real estate, consisting of my interest,” &c., the beneficial interest of the testator in charges on such lands passes.

Ronan L.J. refers to Scott...