Howell v Howell

• Jurisdiction: Ireland
• Court: High Court
• Judge: Miss Justice Carroll
• Judgment Date: 07 February 1992
• Neutral Citation: 1992 WJSC-HC 523
• Docket Number: [1989 No. 639 Sp.],No. 639Sp./1989
• Date: 07 February 1992

HOWELL v. HOWELL

IN THE MATTER OF THE LAST WILL AND TESTAMENT OF FREDERICK

HOWELL DECEASED

BETWEEN

GEORGE HOWELL

PLAINTIFF

AND

RICHARD HOWELL

DEFENDANT

1992 WJSC-HC 523

No. 639Sp./1989

THE HIGH COURT

Synopsis:

WILL

Construction

Legatee - Death - Bequest - Lapse - Residuary clause - Existence - Dispute - (1989/639 Sp - Carroll J. - 7/2/92) - [1992] 1 I.R. 290

|Howell v. Howell|

WORDS AND PHRASES

"Any other assets"

Will - Bequest - Lapse - Residue - Existence - Dispute - Words used to distinguish between properties intended to be bequeathed - (1989/639 Sp - Carroll J. - 7/2/92) - [1992] 1 I.R. 290

|Howell v. Howell|

Citations:

SUCCESSION ACT 1965 S89

HERON V ULSTER BANK LTD 1974 NILR 44

KING, IN RE 200 NY 189, 192 (1910)

ATKINSON, IN RE 1942 IR 268

MULCAIR, IN RE 1960 IR 321

SUCCESSION ACT 1965 S91

1 Judgment of Miss Justice Carroll delivered the 7th day of February 1992.

2 By his Will dated the 8th of August 1966 Frederick Howell the Testator provided as follows:

"I give devise and bequeath my farm of land in the townlands of Drumpeak and Corinshigo together with the furniture and machinery thereon to my brother Joseph. I give devise and bequeath all my stock and any other assets I may have to my brother Richard."

3 He appointed his two brothers Joseph and Richard to be Executors. He died on the 3rd of August 1988. Joseph pre-deceased the Testator having died on the 26th of June 1980. Probate was extracted by Richard on the 17th of January 1989.

4 The question arises on the Will whether the gift to Richard was a full comprehensive residuary gift. The Plaintiff, another brother of the deceased, as one of the next-of-kin claims that the phrase "any other assets" must be construed as meaning any assets other than the farm, furniture and machinery and, of course, the stock which is specifically mentioned. The Defendant claims that the phrase "any other assets" makes the bequest a true residuary gift.

5 The applicable statutory provisions are Section 89 of the Succession Act 1965which provides that a Will speaks from death unless a contrary intention appears, and Section 91 which provides that residuary bequests include lapsed and void gifts unless the contrary intention appears.

6 Reference to decided cases where other Wills have been interpreted, is of limited help in construing a Will. I agree with the procedure suggested by Lord Chief Justice Lowry in Heron -v- Ulster Bank Limited 1974 N.I.L.R. 44 at page 52 where he says:

"I consider that, having first read the whole will, one may with advantage adopt the following procedure:"

1. Read the immediately relevant portion of the will as a piece of English and decide, if possible, what it means.

2. Look at the other material parts of the Will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole or, alternatively, whether an ambiguity in the immedately relevant portion can be resolved.

3. If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.

4. One may at this stage have resort to rules of construction, where applicable, and aids, such as the presumption of early vesting and the presumptions against intestacy and in favour of equality.

5. Then see whether any rule of law prevents a particular interpretation from being adopted.

6. Finally, and, I suggest, not until the disputed passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar words, rarely as binding precedents, since it has been well said that "No will has a twin brother" (per Werner J. in Matter of King 200 N.Y. 189, 192 (1910)), but more often as examples (sometimes of the highest authority) of how judicial minds nurtured in the same discipline have interpreted words in similar contexts."

7 Following that procedure, the immediately relevant portion of the Will is "any other assets I may have". As a piece of English that means any assets other than the farm, furniture, machinery and stock already mentioned.

8 Apart from the two bequests the Will consists of an opening sentence revoking any earlier Wills and a closing sentence appointing Executors. There would be absolutely no problem in construing the Will if Joseph and Richard had survived the Testator or if Joseph had survived and Richard had pre-deceased him. In the first case there would be a division of his entire estate where Joseph got the farm, furniture and machinery and Richard got everything else. In the second case Joseph would get the farm, furniture and...