Donnellan v O'Neill

• Jurisdiction: Ireland
• Judgment Date: 14 July 1870
• Date: 14 July 1870
• Court: Rolls Court (Ireland)

Rolls.

DONNELLAN

and

O'NEILL AND OTHERS.

Sherlock v. Blake 10 Ir. Jur. N. S. 358.

Fuller v. HooperENR 2 Ves. Sen. 242.

Henwood v. Overend 13 Ves. 383.

Hall v. SeverneENR 9 Sim. 515.

Holder v. Howell 8 Ves. 97.

Earl of Shaftesbury v. The Duke of MarlboroughENR 7 Sim. 237.

Commissioners of Charitable Donations v. CotterUNK 2 Dr. & Wal. 615.

Quinn v. ButlerELR L. R. 6 Eq. 225.

Tupper v. TupperENR 1 K. & J. 665.

Cooper v. DayENR 3 Mer. 154.

Alexander v. AlexanderENR 5 Beav. 518.

The Attorney-General v. Lord Weymouth 1 Ambl. 20.

Thornber v. WilsonENR 3 Drew. 245.

Early v. BenbowENR 2 Coll. 342.

Sherlock v. Blake 10 Ir. Jur. N. S. 350.

Clegg v. RowlandELR L. R. 3 Eq. 368.

Lucas v. JonesELR L. R. 4 Eq. 73.

Pollock v. Day 14 Ir. Ch. R. 297.

De Hommelin v. Sheldon 4 M. & Cr. 525.

Jeffries v. AlexanderENR 8 H. L. C. 594.

Myers v. Perigal 2 D. M. & G. 599.

Shadbolt v. ThorntonENR 17 Sim. 49.

Marsh v. The Attorney-GeneralENR 2 J. & H. 61.

Brook v. Badly 15 W. R. 1004-16.

Jones v. Badly L. R. 3 Ch. Ap. 362.

Bonner v. Bonner 13 Ves. 383.

Crowder v. Clowes 2 Ves. Jun. 449.

Johnstone v. The Earl of HarrowbyENR John. 427.

Day v. CroftENR 4 Beav. 561.

Addlington v. CannENR 3 Atk. 144.

Perrse v. DalyUNK 9 Ir. Eq. Rep. 508.

Fitzmaurice v. SadlierUNK 12 Ir. Eq. Rep. 544.

Cooke v. Franklin 16 Ir. Ch. R. 469.

Davis v. BennetENR 30 Beav. 226.

Leacroft v. Maynard 3 Br. C. C. 233; 1 Ves. Jun. 279.

Russell v. DicksonUNK 2 Dr. & War. 138; 4 Ir. Eq. Rep. 339.

Cookson v. Hancock 1 Kee. 817; 2 M. & Cr. 606.

Early v. BenbowENR 2 Coll. C. C. 342.

Cookson v. Hancock 2 M. & Cr. 606.

Will — Construction — Real Estate converted for Charitable Purposes — 7 & 8 Vict. c. 97 — Revocation — Substituion of Legacies in Will by Codicil.

VoL. V.] EQUITY SERIES. 523 DONNELLAN v. O'NEILL AND OTHERS. Rolls. Will-Construction-Real Estate converted for Charitable Purposes-7 & 8 1870. Viet. c. 97-Revocation-Substitution of Legacies in Will by Codicil. June 24, 25. July 14, A devise of real estate in trust to sell and apply the proceeds to charitable purposes, is void under the 7 & 8 Vict. e. 97, s. 16, if made within three months before the death of the testator. A testator bequeathed a number of legacies to charities-among others, one to Pope Pius IX., and, in the event of his dying before the testator, to his successor; and the residue of his real estates he left to trustees, in trust to sell and be possessed of the proceeds, and, in the meantime, of the income thereof, in trust first to make good, in aid of the personal estate, the charitable and other bequests, and then in trust for the Propaganda ; and he directed that if any or any one of the devises or bequests " hereinbefore" contained should be set aside or declared void, or be rendered inoperative, " then" the subject of such devise or bequest should go to Cardinal C., and, in case of his death, to the R. C. ArchÂÂbishop of D., and to his heirs, &c., " absolutely for his and their own use and benefit." By a codicil made on the same day, he revoked the bequest to the Propaganda, and, " in lieu thereof," left half of his residuary property to All Hallows College, and the other half to tbs Propaganda : Geld, that the charitable bequests having become void under the 7 & 8 Vict. e. 97-the ultimate bequest of the residue to the Cardinal was not revoked by the codicil, and that, in the absence of evidence to the contrary, he took the whole residue as an absolute bequest for his benefit, unaffected by any chariÂÂtable trust. BILL to carry into execution the trusts, and. for a declaration as to the legal effect and construction of the will of Thomas M. DonÂÂnellan, dated the 4th August, 1866, which, after giving some small pecuniary legacies, was in the terms following :- " I also give and bequeath the following legacies-that is to say, to the SoÂÂciety of St. Vincent de Paul, the sum of £150, &c. ; to the R. C. Institution for the Deaf and Dumb, at Cabra, in the county of Dublin, the sum of £150; to the Mater Misericordim Hospital, Eccles-street, Dublin, the sum of £150; to His Holiness Pope IX,, the sum of £200 ; and, in the event of his dying before me, I bequeath said sum to his successor; to the religious Society of Oblate Fathers at Inchicore, in the county of Dublin, the sum of £50, for Masses to be offered up for the repose of my soul and the souls of my father and mother ; to the President for the time being of Clongowswood College, in the county of Kildare, the sum of £100, for Masses to be offered up for the 524 THE IRISH REPORTS. [I. R. repose of the souls of myself and my father and mother; to the Superioress for the time being of the Convent at Clane, the sum of £10, for the poor of Clane aforesaid ; and also to the said Superioress, for the use and benefit of the said Convent, the sum of £50 ; to the Superior for the time being of the R. C. Church of Adam and Eve, Merchants'-quay, Dublin, the sum of £100, for Masses to be offered up for the repose of the souls of myself, my father, and mother ; to the Superior for the time being of the Order of Augustinians, at the New Church at John-street and John's-lane, in the City of Dublin, the sum of £100, for Masses to be offered up in the said Church for the repose of the souls of myself, my father, and mother. I direct that my executors shall set apart and invest, in such securities as they shall think proper, the sum of £200, which sum, together with interest and dividends to accrue due thereon from time to time, I desire shall be applied in and towards the erection of a new R. C. Church at Clane, in the county of Kildare, to be paid at such time after the commencement of the building of said new church as the Right Rev. James Walshe, or his successor as R. C. Bishop of Kildare, shall think fit ; and in having Masses offered up therein for the repose of the souls of myself, my father, and mother. I bequeath to the Superior for the time being of the ConÂÂvent of Mount Melleray, near Cappoquin, in the county of Waterford, the sum of £100, for Masses to be offered up for the repose of the souls of myself, my father, and mother. I direct that all the foregoing charitable bequests shall be paid out of such part of my property as shall not be, by law, inapplicable to such purposes ; and as to all the residue and remainder of my property, of what nature or kind soever, whether real or personal, and whether in possession, reversion, or expectancy, or otherwise, howsoever and wheresoever, I give, devise, and bequeath the same unto my executors hereinafter named, and their heirs, executors, administrators, and assigns, upon trust, that my said executors, whom I hereby also appoint trustees of my will, and the survivor of them, and the heirs, executors, administrators, and assigns of such survivor, shall, as soon as conveniently may be after my decease, sell and convert into money all such parts of my property as shall not already consist of money, or securities for money, either by auction or private contract, and either together, or in parcels, and subject or not to any special or other stipulations as to title, evidence of title, or otherwise, with power to buy in all or any of the same, or to reÂÂscind or vary the terms of any contract relating thereto ; and shall be possessed' of the proceeds of such sale (and in the meantime of the income of the trust preÂÂmises), upon trust, in the first place, to make good, in aid of my personal estate, the charitable and other bequests hereinbefore bequeathed ; and then in trust for the Association for the Propagation •of the Roman Catholic Faith, the same to be paid to the treasurer or treasurers for the time being in Ireland of the said association, whose receipt shall be a sufficient discharge for the same; I hereby nominate and appoint the Rev. Bernard O'Neill f, &c and Valentine Cullen, of, &c., to be the executors of this my last will. LastbriI hereby direct and ex- O'Neill pressly declare my will to be, that if any or any one of the devises or bequests hereinbefore contained shall be set aside or declared void, or in anywise rendered inoperative by reason of their or any of their being illegal, or in consequence of my death occurring within three calendar months next after the execution of this my will, or otherwise howsoever, as being contrary to law, then, and in every such case, I hereby devise and bequeath all such part or parts of my property as shall be contained in, or be the subject or subjects of every such devise or bequest so being set aside or declared void, or otherwise rendered inoperative as aforesaid, unto and to the use of his Eminence Cardinal Paul Cullen ; and, in case of his death, then to the Roman Catholic Archbishop for the time being of the ArchÂÂdiocese of Dublin, and to his heirs, executors, and administrators, absolutely, for his and their own use and benefit." To which, on the same day, the testator executed the following codicil :- " Whereas I have, by said will, bequeathed unto the Association for the ProÂÂpagation of the Roman Catholic Faith the residue of my property, I hereby revoke said bequest, and in lien thereof direct that one-half of my said residuary property shall go to the Superior for the time being of the College of All HalÂÂlows, Drumcondra, Dublin, for the benefit of that institution, and that Masses shall be offered up for the repose of my soul ; and the other half thereof I direct to be paid...