Guiry v Condon

• Jurisdiction: Ireland
• Judgment Date: 25 July 1917
• Date: 25 July 1917
• Court: Chancery Division (Ireland)

Guiry

and

Condon.

Barton J.

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.

1918.

Will — Ademption — Bequest of chattel real — Agreement for sale prior to be quest — Sale completed after testator's death — Purchase — money paid to executors — Legacies how payable — Residuary Gift — Debts and testamentary expenses.

After certain pecuniary legacies and bequests of chattels a testator provided as follows:—“Subject to the foregoing I will devise and bequeath my lands of T. unto J.& and I direct that he shall pay thereout the foregoing legacies and obligations and in case the said J. is not willing to accept this devise and bequest I direct that all my lands cattle goods and chattels be sold by public auction and that the foregoing legacies obligations and bequests be paid and discharged thereout and that the residue of my estate be paid to C.”

The testator, at the date of his death, was possessed of certain lands of T., held under a statutory tenancy. At the date of the execution of his will he had entered into an agreement for sale of other lands of T., also held under a statutory tenancy, and after his death the sale was completed, and the purchase-money (a sum of £650) was paid to his executors.

Held, 1. That the sum of £650 was undisposed of by the will, and passed as on intestacy to the next-of-kin.

2. That the residuary bequest in favour of C. was contingent on an event which had not happened, and that it failed.

3. That the debts and testamentary expenses were payable primarily out of the undisposed of residuary estate.

4. That the legacies were primarily payable out of the property bequeathed to J.

Originating Summons.

By his will, dated the 6th June, 1914, Maurice Condon of Tiermena, in the county of Limerick, directed that certain legacies (including a legacy of £50 to his housekeeper, Mary Ryan, with bed and bedding, donkey-car and tackling, and fowl), as well as his debts and testamentary expenses, “shall be paid out of my estate.”

After setting out the legacies therein bequeathed the will proceeded as follows:— “Subject to the foregoing I will devise and bequeath my lands of Tiermena with all the cattle goods and chattels thereon save as aforesaid unto Joseph Mulcahy son of the late William Mulcahy of Bridge Street Newcastle West and nephew of my late wife and I direct that he shall pay thereout the foregoing legacies and obligations as soon as possible after my death and in case the said Joseph Mulcahy is not willing to accept this devise and bequest I direct that all my lands cattle goods and chattels be sold by public auction and that the foregoing legacies obligations and bequests be paid and discharged thereout and that the residue of my estate be paid unto Mrs. David Condon wife of my said brother David Condon of Chicago.”

Testator died on the 3rd day of August, 1914, and probate of his will was granted to the plaintiffs, the executors therein named.

Testator died possessed of certain lands of Tiermena, containing forty-two acres and six perches, held for a statutory term, at the yearly rent of £30 4s. At the date of the execution of his will he had entered into a contract for sale of another part of the lands of Tiermena, also held under a statutory tenancy. The sale was not completed at the date of his death, but it was subsequently completed by the executors, and the sum of £650 purchase-money was paid to them in respect of the sale, and lodged on deposit receipt in the Munster and Leinster Bank, Rathmines. The defendant, Joseph Mulcahy, accepted the devise and bequest of the lands of Tiermena, with the cattle, goods, and chattels thereon, as set forth in the...