Grealey v Sampson

JurisdictionIreland
CourtChancery Division (Ireland)
Judgment Date29 January 1917
Date29 January 1917

CHANCERY DIVISION

Appeal.

Barton J.

GREALEY
and

SAMPSON.

Acherley v. VernonENR 3 Bro. P. C. 107.

Acherley v. VernonENR 3 Bro. P. C. 85.

Allen v. Callow 3 Ves. 289.

Att.-Gen. v. Downing Ambl. 573.

Barnes v. Crowe 1 Ves. Jun. 485.

Barnes v. Crowe 1 Ves. Jun. 486.

Beckford v. Parnecott Cro. El. 493.

Benyon v. Benyon 17 Ves. 34.

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Will — Republication by Codicil — Date of will brought down to date of Codicil — Substitutional Gift — Extrinisic Evidence.

286 THE IRISH REPORTS. [1917. Barton J. GREALEY v. SAMPSON. 1916. March 30. Will—Republication by Codicil—Date of Will brought down to date of Codicil—April 12. Substitutional Gift—Extrinsic Evidence. A testator, by his will, gave to his son a power to appoint a jointure, not exceeding £200 per annum, charged on the lands of C., to any woman the son might marry. The son, subsequently to the date of the will, having married E., the testator, by a codicil, revoked certain devises contained in the will, and directed that E. should receive out of the lands of C. a jointure rent-charge of £200 per annum during her life. Held, by Barton J., that parol evidence was admissible to show the testator's intention, and that, so far as E. was concerned, the jointure in the codicil was in substitution for, and not in addition to, the power of jointuring given by the will. Held, by the Court of Appeal, that the judgment of Barton J. should be affirmed. Held, by Sir I. J. O'Brien C., that, on the true construction of the will and codicil, the jointure given by the codicil was in substitution for that given by the will ; but that extrinsic evidence as to the value of the testator's estate was not admissible, the question being one purely of construction. Held, by Ronan and Molony L.JJ., that the codicil operated as a republiÂcation of the will ; that accordingly, in the absence of contrary intention, the language .of the will must he construed as of the date of the codicil, and that there was no evidence of any such contrary intention. The principle and effect of republication of a will by a codicil of later date considered. Dicta in Mountcashell v. Smyth, [1895] 1 I. R. 346, discussed. ORIGINATING SUMMONS. By his will dated 8th July, 1878, the testator, George Sampson, devised the lands of Clontra (subject to a jointure in favour of his own wife of £100 a year) to trustees for the benefit of his son Charles John Sampson for life, and in case his son Charles John should marry, the testator authorized him to appoint a jointure not exceeding £200 per annum for any wife he should marry. On the 22nd October, 1880, Charles John Sampson married Ellen Mary McDermott. By a second codicil to his will dated 28th April, 1881, the testator directed that in the event of his daughter-in-law Ellen Sampson, wife of his son Charles John, VOL. I.] CHANCERY DIVISION. 287 surviving his son she should receive out of the lands of Clontra a Barton .1. jointure rent-charge of £200 per annum during her life, but 1916. declared that the said jointure should not be paid until the £100 GREALEY annuity provided for the testator's wife had been discharged. SAMPSON. On the 10th January, 1883, Charles John Sampson executed his last will, whereby after reciting that power had been given to him by the will of his father George Sampson to appoint a jointure not exceeding £200 for any wife he should marry, to be charged on the lands of Clontra, he appointed said jointure of £200 per annum charged as aforesaid to his wife Ellen Mary Sampson, to be payable to her from arid after his decease, and declared that same should be in addition to any other benefit that Ellen Mary Sampson should take under the will of his father. Charles John Sampson died on the 19th August, 1886, leaving his wife Ellen Mary Sampson him surviving. Ellen Mary Sampson died on the 14th September, 1915. The executors of the Will of Ellen Mary Sampson brought the present summons against the trustees of the will of George Sampson, deceased, for the determiÂnation of the following among other questions :—Whether according to the true construction of the will and second codicil thereto of George Sampson the jointure rent-charge of £200 per annum bequeathed to Ellen Mary Sampson for life by the second codicil was in addition to or in substitution fora jointure not exceeding £200 per annum which Charles John Sampson had power to appoint under the will for any wife he should marry. Oulton K. C. and S. Hayes, for the plaintiffs. H. Wilson K.O. and H. R. Poole, for the defendants. The arguments were similar to those in the Court of Appeal. Cur. adv. vult. BARTON J.:— April 12. By his will dated 8th July, 1878, the testator, George Sampson, devised the lands of Clontra (subject to a jointure in favour of his own wife of £100 a year) to trustees for the benefit of his son Charles John Sampson for life, and empowered him to appoint a jointure not exceeding £200 per annum for any wife with whom Y2 288 THE IRISH REPORTS. [1917. Barton J. he should marry, to be charged on the said lands of Clontra. 1916. Charles John Sampson, on 22nd October, 1880, married Ellen Mary. GREALEY McDermott. George Sampson by a second codicil gave to his V. SAMPSON. daughter-in-law Ellen Mary Sampson a jointure of £200 charged on the same lands of Clontra, again taking care to give priority to the jointure in favour of his own wife of £100 a year. Charles J. Sampson afterwards purported to appoint a jointure of £200 a year to Ellen Mary Sampson under the' power in his father's will. The question for decision is whether she can take both jointures. In Osborne v. The Duke of Leeds (1), Sir R. P. Arden M.R. put an analogous question, and had no doubt as to how it should be answered. He said at p. 382 :—" I will put this case, and no one can doubt upon it. Suppose a testator by a will made before his marriage gave to any woman he might afterwards marry £2000 a year by way of jointure ; that afterwards he married ; and then by a codicil gave his wife the same jointure, could it possibly be intended she should have two jointures ? " The force of this dictum of Sir R. P. Arden's is strengthened when we bear in mind the nature of a jointure. A wife may receive any number of annuities or rent-charges, but, in ordinary parlance, as well as according to ordinary legal notions, it is unusual to hear of a wife receiving more than one jointure. That is because a jointure is a special kind of annuity or rent-charge intended, according to its recognized definition, as a provision for the wife after her husband's death, and having from the earliest times a special relation to her right to dower. If this had been a mere disposition of two ordinary annuities or rent-charges, the intention of the testator might not be so clear as it is. The present case differs from the case put by Sir R. P. Arden, because it is a case of a creation of a power to jointure by will, followed, after the marriage of the donee of the power, by the giving of the jointure by codicil to the donee's wife. Accordingly, the question is not whether the gifts are cumulative ; but the question is an analogous one, depending upon the construction of the will and codicil taken together. In construing the will and codicil together, we are at liberty to take into account that the son (1) 5 Ves. 368, VOL. I.] CHANCERY DIVISION. Charles John Sampson married in the interval between the will and the codicil. We are also, I think, at liberty, in the present case, to look at the value of the property, because the testator in both will and codicil has made the state of the property of imÂportance by insisting upon the priority of his own wife's jointure of £100, and by providing in express terms for the possibility of the estate proving insufficient to pay both his wife's jointure and his daughter-in-law's jointure. When we look at the value of the...

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