Fenton v Nevin

• Jurisdiction: Ireland
• Judgment Date: 07 July 1893
• Date: 07 July 1893
• Court: High Court

Appeal.

Before WALKER, C., and FITZ GIBBON and BARRY, L. JJ.

FENTON

and

NEVIN

Farrington v. KnightlyENR 1 P. Wms. 545.

Salusbury v. DentonENR 3 K. & J. 529.

Williams v. ArkleELR L. R. 7 H. L. 606.

Fowler v. GarlikeENR 1 Russ. & M. 232.

Morice v. Bishop of Durham 9 Ves. 399.

Gibbs v. RumseyENR 2 V. & B. 294.

Ellis v. SelbyENR 7 Sim. 352.

Fowler v. Garlike 1 R. & M. 232.

Salusbury v. DentonENR 3 K. & J. 529.

Buckle v. Bristow 10 Jur. (N. S.) 1095.

Neo v. NeoELR L. R. 6 P. C. 381.

Cole v. Hawes 4 Ch. Div. 238.

Sidgreaves v. Brewer 15 Ch. Div. 594.

Young v. DaviesENR 2 Dr. & Sm. 167.

Gibbs v. Rumsey 2 Ves. & B. 294.

Fowler v. Garlike 1 R. & M. 232.

Ellis v. SelbyENR 7 Sim. 352.

Neo v. NeoELR L. R. 6 P. C. 381.

Buckle v. Bristow 10 Jur. (N. S.) 1095.

Buckle v. Bristow 2 Ves. & B. 294.

Gibbs v. Rumsey 2 Ves. & B. 294.

Bishop of Durham 9 Ves. 399.

Will — Construction — Residue to executors, to be applied as they think fitPrior legacies in the will to the executors — Executors, whether entitled beneficially.

478 LAW REPORTS. (IRELAND). [L. R. I. Appeal. disposition of the bankrupt as reputed owner, and the assignees 1893. must go on to prove that the bankrupt was the reputed owner. If In re `PARLAND ; I was to decide this as a juror, I should come to the conclusion on M Ex parte the evidence that reputed ownership is negatived. After the full MURPHY. review of the authorities by the Lord Chancellor and Fitz Gibbon, L.J., in whose decision I entirely concur, I shall not go over the cases again. On the question of fact, I am of opinion, that the assignees have failed to discharge the onus of proof, which the law has cast upon them, and they have not shown that the piano was in the possession, order, and disposition of the bankrupt as reputed owner Solicitor for Mrs. Murphy : S. H. Monroe. Solicitor for the assignees : H. F. Leacknan. R. D. M. Appeal. 1893. July 5, 7, FENTON v. NEVIN (1). (1893. No. 178.) Will-Construction-Residue to executors, to be applied as they think fit-Prior legacies in the will to the executors-Executors, whether entitled beneficially. A testator, by his will, bequeathed legacies to three charities, and also to some individuals, after which he appointed E. N. and J. G. C. executors, to whom he bequeathed legacies of £50 each. He then directed his houses and the stock in his shop to be sold, and then added the clause-"I will my execuÂtors shall apply the overplus, if any, as they think fit : Held (reversing the decision of the Vice-Chancellor), that the executors did not take beneficially. APPEAL from the order of the Vice-Chancellor, dated the 28th April, 1893, whereby he declared that upon the true construction of the will of George Brown, the residuary gift therein contained to the executors was a beneficial gift, and that no order should be made for administration of the assets of George Brown. The proceedings had been commenced at the suit of Isabella (1) Before WALKER, C., and FITZ GIBBON and BARRY, L.J.J. XXXT.] CHANCERY DIVISION. 479 Fenton, one of the-next-of-kin, by summons, for the administration Appeal. of the assets of George Brown, who died. on the 1st September, 1893. 1892, having previously made his will, dated the 31st August, FENTON v. 1892, in the following terms :-" I, George Brown, of 52, NEVIN. Aungier-street, house painter, do make this my last will and. testament, that is to say, first revoking all other wills heretofore made by me, I will and bequeath £1000 to the Meath Hospital ; I also will £1000 to the Adelaide Hospital, Peter-street ; I also will £500 to St. Peter's Protestant Sustentation Fund ; I will and bequeath to James Reilly £100, my watch, and furniture ; also I will £100 to the widows of St. Peter's Widows' House. I appoint Edwin Nevin, 48, Aungier-street, and the Rev. J. G. Carleton, 'of Peter's Church, my executors. I will and bequeath unto each of them £50 each. I will £20 to my clerk, Thomas Moore; also I leave £12 to my servant Mrs. Gannon. I wish my houses to be sold by auction, and also my stock in my shop, together with the fixtures. I will my executors shall apply the overplus, if any, as they think fit." The total assets amounted to about £4450. Roche, Q.C., and Miles Kehoe, for the appellant : The testator evidently did not intend the executors to take the residue beneficially, because he gave them legacies in an earlier clause in the will : Farrington v. Knightly (1). There is, therefore, a trust, with no objects, and a Court of Equity will enforce that for the benefit of the next-of-kin : Salusbury v. Denton (2). In this will there is no gift of the residue to the executors as was I the case in Williams v. Arlcle (3). The Act of 11 Geo. 4 & 1 Wm. 4, c. 40, only applies when the residue is not expressly disposed of. Indefinite bequests for liberal or benevolent purposes or private charity fail altogether : .Fowler v. Garlilce (4) ; Morice v. Bishop of Durham (5). Money produced by the sale of real estate, bequeathed for...