Duggan v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 15 May 1946
• Date: 15 May 1946
• Court: High Court

In re Phelan; Duggan v. Attorney-General.

In re MARGARET PHELAN, Deceased; MICHAEL DUGGAN

and

THE ATTORNEY-GENERAL and MARGARET RAFTER

Will - Administration of assets - Residuary charitable bequests - Marshalling - Land Purchase Acts - Conversion - Residuary estate including lands purchased under Land Acts, but not yet vested in testatrix - Whether converted to realty on appointed day - Charitable Donations and Bequests Act, 1844 (7 & 8 Vict. c. 97), s. 16 - Land Law (Ir.) Act, 1896 (59 & 60Vict. c. 47), s. 32, sub-s. 4 - Land Act, 1923 (No. 42 of 1923), s. 28,sub-ss. 2, 3, 5, s. 79 - Land Act, 1931 (No. 11 of 1931), s. 9, sub-s. 3,s. 12, s. 54, sub-s. 2 - Land Act, 1933 (No. 38 of 1933), s. 1, sub-s. 2,s. 48, sub-s. 1.

Summary Summons.

By her will Margaret Phelan of Holdensrath, County Kilkenny, spinster, directed her executor, Michael Duggan, to pay her debts, funeral and testamentary expenses and bequeathed several pecuniary legacies for masses and two non-charitable pecuniary legacies. She then gave, devised and bequeathed "the rest, residue and remainder of my property, real and personal to my executor upon trust to pay" a number of small pecuniary legacies, some of which were for charitable purposes, "and to pay one half the balance of the said residuary estate to the parish priest for the time being of Saint Canice's Parish, Kilkenny, for the upkeep of Saint Canice's Church and the other half to Saint Joseph's College for Foreign Missions, Freshford, Co. Kilkenny, to be applicable for the general purposes of the said College."

The will was dated the 13th day of September, 1944, and the testatrix died on the 17th day of November, 1944.

The assets of the testatrix included a farm of land in Co. Kilkenny of about 47 acres, held by the testatrix subject to an annuity of £9 14s. 10d. payable to the Irish Land Commission. This farm had been held by her mother under a yearly tenancy and after her mother's death devolved to the testatrix. On the 1st day of May, 1931, the lands were vested in the Irish Land Commission under the Land Act, 1923: they had not been vested in the testatrix at the date of her death. The farm was sold by the executor for £1,050. The other assets of the deceased, consisting of pure personalty, amounted in value to about £1,800. The general pecuniary legacies bequeathed by her said will amounted to £160, of which £90 was for non-charitable legacies: the debts and funeral expenses came to £42 and death duties and law...