Grealey v Sampson

• Jurisdiction: Ireland
• Judge: Barton J.
• Judgment Date: 29 January 1917
• Court: Chancery Division (Ireland)
• Date: 29 January 1917

Grealey

and

Sampson.

Barton J.

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.

1917.

Will — Republication by Codicil — Date of Will brought down to date of Codicil — 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 republication of the will; that accordingly, in the absence of contrary intention, the language of the will must be 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, surviving his son she should receive out of the lands of Clontra a jointure rent-charge of £200 per annum during her life, but declared that the said jointure should not be paid until the £100 annuity provided for the testator's wife had been discharged.

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 and 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 determination 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 for a 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.C. and H. R. Poole, for the defendants.

The arguments were similar to those in the Court of Appeal.

Cur. adv. vult.

Oulton K.C. and S. Hayes, for the plaintiffs.

H. Wilson K.C. and H. R. Poole, for the defendants.

Barton J.:—

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 he should marry, to be charged on the said lands of Clontra. Charles John Sampson, on 22nd October, 1880, married Ellen Mary McDermott. George Sampson by a second codicil gave to his 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 E. 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

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 importance 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 property at the date of the will, we find that the net rental of the property was only £287 0s. 4d., leaving less than £200 a year after payment of the testator's wife's jointure of £100 a year. The inference seems to be irresistible that the testator did not intend his daughter-in-law to take both jointures, and that the codicil, so far as Ellen Mary Simpson was concerned, impliedly revoked the gift of the power pro tanto. I have not rested my judgment merely on the effect of republication. Earl of Mount-cashell v. Smyth (1) shows that, while a codicil brings the will down to the date of the codicil, it brings it down with all its words including its date, and that, even after republication, words of futurity and adverbs of time, occurring in the will, may be construed by reference to the date of the will, where such a construction would clearly effectuate the testator's intention. I rest my decision upon the construction of the will and codicil taken together, read in the light of the events which happened in the interval, and of parol evidence which, in my opinion, is admissible in this case.

There is, in my opinion, nothing in the point that the words of the will are a jointure “not exceeding” £200, because a jointure of £200 is the complete equivalent of a jointure not exceeding £200, and exhausts the subject-matter of the power.

D. M. S.

The plaintiffs appealed to the Court of Appeal (2).

Jellett K.C., Oulton K.C., and S. Hayes, for the appellants

The gift of the jointure by the codicil did not revoke the power of jointuring given by the will at least quoad the only wife the

testator's son had. Since the gift in the will was a power not a bequest, he need never have exercised it. He could have given less than £200 a year. Property and power are absolutely different things, and a power cannot be substituted for property. The wife's title to each is distinct.

Any circumstance of difference between two gifts strengthens the argument in favour of cumulation: Suisse v. Lowther (1); Hurst v. Beach (2). The use of the word “jointure” in the codicil really indicated an intention on the testator's part to increase the jointure, for he knew his son had executed no settlement on this lady. Why should this jointure not be cumulative merely because it is called a jointure? There is nothing to prevent a person having two jointures. They also referred to Russell v. Dickson (3); Wilson v. O'Leary (4); Osborne v. Duke of Leeds (5): Brennan v. Moran (6); Hodges v. Peacocke (7); Smith's Equity (8).

Herbert...