Fitzsimons v Fitzsimons

• Jurisdiction: Ireland
• Judge: KeaneJ.
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 3596
• Date: 01 January 1993
• Docket Number: [1992 No. 204 Sp. Ct. 6],No. 204 Sp. Ct. 6/1992
• Court: High Court

FITZSIMONS v. FITZSIMONS

IN THE MATTER OF THE LAST WILL OF PATRICK JAMES FITZSIMONS

BETWEEN

PATRICK FITZSIMONS JUNIOR

PLAINTIFF

AND

KATHLEEN FITZSIMONS, MICHALE FITZSIMONS, MARIE BAKER,KATHLEEN GAHAN AND PATRICIA FITZSIMONS

DEFENDANTS

1992 WJSC-HC 3596

No. 204 Sp. Ct. 6/1992

THE HIGH COURT

Synopsis:

WILL

Construction

Devise - Lands - Vesting - Condition - Condition precedent - Part of farm granted to son in testator's lifetime - Balance of farm devised to wife with remainder to son - Devise of remainder conditional on son being the beneficial owner of the part of the lands so granted - Whether sale of portion of lands so granted would divest interest of remainderman - (1992/204 Sp - Keane J. - 2/7/92) - [1992] 2 I.R. 295 - [1993] ILRM 478

|Fitzsimons v. Fitzsimons|

1 JUDGMENT delivered the 2nd July 1992by KeaneJ.

2 The Testator died on the 5th February 1986. He owned a farm of 182 acres in County kildare and in 1985 he transferred a substantial part of it, amounting to 67 acres, to one of his sons who is the Plaintiff in this Special Summons. The Plaintiff has been farming those lands sincethen.

3 In his last Will, dated the 25th of July, 1986, the Plaintiff devised the remainder of the farm, amounting to 109 acres, to his Executors and Trustees upon the following Trusts:

4 i " (i) UPON TRUST for my wife Kathleen for life and from and after her death

5 (ii) UPON TRUST for my son, Patrick Junior, in fee simple, conditional upon him being the beneficial owner for a like estate of the lands of Jigginstown transferred by me to him during my lifetime and in the event of my son, Patrick predeceasing my said wife or having sold the said lands transferred to him during mylifetime....."

6 There follow certain Trusts which are to take effect in the events mentioned and which have no bearing on the issue that arises in theseproceedings.

7 That issue is as to whether the Plaintiff may sell part only of the lands given to him by the Testator during his lifetime without forfeiting the devise in the Will of the balance of the lands subject to the widow's life interest. The question has arisen because the plaintiff has been made an offer for the sale of one and a half acres of the lands at present farmed by him which he wishes to accept, unless by so doing he will lose his interest in remainder.

8 Mr. Fahy made two submissions on behalf of the Plaintiff. First, he said that the condition was void as being a purported restraint on the alienation of the lands transferred to the Plaintiff in 1985 which was repugnant to the estate in fee simple thereby granted. Secondly, he said that it was void for uncertainty in that it did not indicate whether the devise under the Will would be forfeited by:

9 (a) a sale of part only of the lands, or

10 (b) a disposition of less than the entire beneficial interest, such as a mortgage of all or part of the lands.

11 Miss. Butler on behalf of the Defendants said that the adult beneficiaries had no objection to the proposed sale which, they accepted, would not be in conflict with the Testator's obvious intention that the devise in remainder to the Plaintiff should fail only if he ceased farming the lands at present owned by him and sold all or a substantial part...