Ellard v Phelan

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 14 May 1913
• Court: Chancery Division (Ireland)
• Docket Number: (1913. No. 117.)
• Date: 14 May 1913

Ellard

and

Phelan.

Ross, J.

(1913. No. 117.)

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.

1914.

Will — Construction — Charity — Gift to Monastic Orders — Void bequest — 10 Geo. 4, c. 7 — Gift to servant — Satisfaction of debt by legacy — “Legatee” — Whether devisee of real estate included — Bequest of residue “to the several legatees other than charitable legatees hereinbefore named” — Non-charitable legacy given by subsequent clause in will — Right of such legatee to share in residue — Legacies given free of legacy duty — Whether covers succession duty.

Held, that “legatees” meant persons to whom a bequest of personalty was made, and did not include a devisee of a freehold farm.

Held, also, that a legatee to whom a non-charitable legacy was given by a subsequent clause in the will was entitled to a share in the residue.

After giving certain pecuniary legacies, the testator devised a freehold farm to F., and directed “all said legacies to be paid free of legacy duty.”

Held, not to apply to the devise of the farm so as to cover succession duty.

Summons for the determination of questions arising on the construction of the will of Patrick Finn, of Mitchelstown, Co. Cork.

Patrick Finn died on the 24th October, 1911, having made his last will dated 21st October, 1911, of which the portions material to the present report are as follows:—

“I bequeath the following pecuniary legacies, viz.:—to William Finn, son of Owen Finn of Coolenave, £100; to the Rev. Superior for the time being of the Cistercian Monastery, Mount Melleray, Co. Waterford, the sum of £1000 for the use and benefit of said Monastery, and the works of charity carried on by said order, and with a request that they will say Masses for the repose of my soul and the souls of my relatives and friends; to the Very Rev. Canon Rice, p.p., Mitchelstown, £150 for Masses for the repose of my soul, and the souls of my friends and relatives, the stipend for each Mass to be five shillings; to the Rev. Michael Ellard, c.c., the Rev. Thomas Flannery, c, c., and the Rev.—Walsh, c.c., curates Mitchelstown, £100 each for Masses for the repose of my soul, and the souls of my relatives and friends, the stipend for each Mass to be five shillings, all said Masses to be celebrated in public, in a public church in Ireland; to the Rev. Mother of the Presentation Convent, Mitchelstown, the sum of £200 for the use and benefit of said convent, and in aid of the charitable works carried on by them; … to Nora Howard, spinster, my housekeeper, £200; to Thomas Donovan, my assistant, £100…. I direct my executors and trustees, hereinafter named, to invest out of my assets a sum of £500 and pay the income thereof to my niece, Honora Leahy, for life, and after her death to divide said sum amongst her children, should she leave children her surviving, in such shares and proportions as she shall by deed or will appoint, but should my said niece die without leaving children or a child, in that event I leave the said sum of £500 to Owen Finn of Coolaregan; to the Very Rev. Canon Rice, p.p., the sum of £50 towards expenses of organ now being purchased for the parish church … I give, devise, and bequeath my farm of land at Coolenave, held under a judicial tenancy, to Michael Finn;I give, devise, and bequeath all the residue of my property to the several legatees other than charitable...