Garland v Smyth

• Jurisdiction: Ireland
• Judgment Date: 30 November 1903
• Date: 30 November 1903
• Court: Court of Appeal (Ireland)

Garland

and

Smyth.

M. R.

Appeal.

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.

1904.

Will — Construction — Survivor — Other — Gift over — Context.

By his will a testator gave legacies in trust for his three illegitimate children—£400 for T., £300 for R., and £400 for E., a married woman, for her separate use. The will then provided as follows:—“And in case of the decease of any or either of them, the said T., R., and E., without issue, or leaving issue who shall not live to attain his, her, or their age of twenty-one years, I order and direct that the said several and respective sum and sums of money so hereby left and bequeathed to and for them, the said T., R., and E., shall go and be equally divided between the survivors and survivor of them, for and during the term of their natural lives, and to their issue after their respective deaths who shall live to attain the age of twenty-one years.”

There was no gift over in the event of all the three legatees dying without issue. The will appointed a brother of the testator (who predeceased him) residuary legatee.

R., who was unmarried, predeceased the testator. A suit was brought for the administration of testator's estate, and the assets were lodged in Court, and proved insufficient to pay the legacies which had to abate rateably. E. died in 1865, leaving children, all of whom attained twenty-one. T. died in 1900 unmarried.

At the date of T.'s death the funds in Court represented a moiety of the legacy of £300 given to R., with a bequest over, and the legacy of £400 originally bequeathed to T., with a gift over. The children of E. applied for payment out of the funds in court:—

Held, on the construction of the will, that the children of E. took no interest in the funds in court, in which T. had a life interest, because their mother did not survive him, and that the word “survivor” must be read in its ordinary signification, and not as meaning “other,” with the result that there was an intestacy as regards these funds.

Summons.

By his will, dated 26th January, 1840, Robert Baylor devised the lands of Derrivillane to Henry Smith upon trust for his illegitimate son Thomas for life, and after his decease for his child or children attaining twenty-one, in such shares as he should appoint, and in default of appointment, if more than one child, as tenants in common, and in default of such child, children, or issue, upon similar trusts for testator's illegitimate son Richard, his child, children, or issue, as in the case of Thomas, and in default then upon similar trusts for testator's reputed daughter Ellen Nolan, her child, children, or issue (but as to her life interest for her separate use), as in the case of Thomas, and on failure of the trusts aforesaid there was a gift over in favour of testator's nephew, Arthur Baylor.

After other devises and bequests testator provided as follows:—“I leave and bequeath unto my said illegitimate and reputed son Thomas Baylor the sum of £400; I leave and bequeath unto my said illegitimate son Richard Baylor the sum of £300; I leave and bequeath unto the said Henry Smith, his executors, administrators, and assigns, the sum of £400 in trust for the sole, separate, and only use and benefit of my said illegitimate daughter Ellen Nolan, and to be at her disposal notwithstanding her coverture, &c., and in case of the decease of any or either of them, the said Thomas Baylor, Richard Baylor, and Ellen Baylor, without issue, or leaving issue who shall not live to attain his, her, or their age of twenty-one years, I order and direct that the said several and respective sum and sums of money or legacies, so hereby left and bequeathed to and for them, the said Thomas Baylor, Richard Baylor, and Ellen Nolan, shall go and be equally divided between the survivors and survivor of them for and during the term of their natural lives, and to their issue after their respective deaths who shall live to attain the age of twenty-one years.”

Testator bequeathed all the rest, residue, and remainder of his estate not thereinbefore disposed of unto his brother John Baylor, whom he appointed one of his executors.

Robert Baylor died unmarried on 14th April, 1849, and probate of his will was on 3rd July of that year granted to Henry Smyth, one of the executors named in the will. John Baylor, the other executor and residuary legatee named in the will, predeceased the testator.

Richard Baylor died unmarried on 6th September, 1842.

In 1852 a suit was instituted for the administration of the estate of Robert Baylor, and the assets of the testator were pursuant to order lodged in Court to the credit of the cause, and afterwards to the separate credits of the parties entitled thereto...