Ir Re Pennefather, Deceased Savile v Savile

• Jurisdiction: Ireland
• Judgment Date: 26 March 1895
• Date: 26 March 1895
• Docket Number: (1895. No. 106.)
• Court: Chancery Division (Ireland)

Ir re Pennefather, Deceased.

Savile

and

Savile.

M. R.

(1895. No. 106.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1896.

Will — Devise — Gift to children in priority — Sons to inherit before daughters — Estate tail — Estate for life.

A testatrix left and bequeathed “all the property whether in lands or otherwise” which she might die possessed of to trustees, their heirs and assigns, in trust (after a life estate to her mother who predeceased her)—“To the use of my nephew W. S. for his life use, and then to his children in priority in case he marries, the sons to inherit before the daughters; but in case the said W. S. my nephew should die unmarried, I leave and bequeath for the use of my cousin, M., her heirs and assigns for ever.” The will was made in 1856. W. S. married in 1865, and had a son, J. S., and a daughter, B. The testatrix died in 1892, M. having predeceased her. Testatrix died possessed of real and personal estate.

Held, that W. S. took an estate for life in the real and personal estate of the testatrix, and that J. S. took an estate tail in the realty and an absolute interest in the personalty subject to the life estate of his father W. S.

Held, also that B was entitled to an estate tail in remainder in the real estate after the estate tail of J. S., with an ultimate remainder to the right heirs of the testatrix.

Summons.

By her will, dated 25th March, 1856, Mary Pennefather provided as follows:—“I, Mary Pennefather, do hereby leave and bequeath all the property, whether in lands or otherwise, which I may die possessed of, to Edmund Staples, of Dunmore, and William Barker, their heirs and assigns, in trust for the uses hereinafter specified; first, to the use of my mother, Grace Galeazzi, for the term of her natural life, and after her decease to the use of my nephew, William Savile, for his life use, and then to his children, in priority, in case he marries, the sons to inherit before the daughters; but in case the said William Savile, my nephew, should die unmarried, I leave and bequeath, for the use of my cousin Mary, daughter of Edmund Staples, her heirs and assigns for ever.”

The testatrix died 28th September, 1894, and letters of administration of her personal estate and effects, with her will annexed, were, on 31st January, 1895, granted to the plaintiff, William Savile, who was the plaintiff in the summons.

Edmund Staples and William Barker, both pre-deceased testatrix. Grace Galeazzi, the mother of testatrix, and Mary Staples, also both pre-deceased testatrix. The co-heirs at law of the testatrix, at her death, were her nephew, the plaintiff, William Savile, and the defendant, Stephen Moore, each of whom was a son of a sister of testatrix.

The plaintiff, William Savile, married in June, 1865, and had two children as issue of his marriage, viz. the defendant, John Savile, and the defendant, Beatrice Savile, both of whom had attained age in 1894.

The testatrix died possessed of both real and personal estate.

The questions submitted for the decision of the Court were as follows:—

1. Whether, upon the true construction of the devise and bequest contained in the will of said testatrix, the plaintiff William Savile is entitled to an estate tail in the real estate of said testatrix, and to an absolute interest in the personal estate of said testatrix, or is only entitled to a life estate in said real and personal estate?

2. In the event of the Court being of opinion that the plaintiff is only entitled to a life estate, whether, upon the true construction of said will, the defendant John Savile is entitled to an estate tail in said real estate, and to an absolute interest in the personal estate of said testatrix in remainder, expectant on the determination of the life estate of said plaintiff in said real and personal estate, or is only entitled to a life estate therein in remainder?

3. Is the defendant Beatrice Savile entitled to any, and if so what, estate in said real and personal estate?

4. Has testatrix died intestate as to the ultimate remainder in the real and personal estate of the said testatrix?

Oulton, for the plaintiff:—

As to the real estate, the effect of the limitations in the will is to confer an estate tail on the plaintiff William Savile. The words, “to his children in priority,” are equivalent to “to his children in priority of birth,” and words importing succession, connected with the word “children,” render the latter word a word of limitation: Earl of Tyrone v. Marquis of Waterford (1) and Re Childe (2) are authorities on this point. The fact that the devise to William Savile is expressly for life does not alter this construction: Cleary's Trusts (3); Bowen v. Lewis (4); Jordan v. Adams (5); Robinson v. Robinson (6); Mellish v. Mellish (7). The construction contended for is aided by the use of the word “inherit” in the sentence, “the sons to inherit before the daughters.” This indicates that the sons should take through their father, rather than as purchasers. This construction is also supported by the gift over in case William Savile “should die unmarried.”

The personal estate devised by the will belongs to the plaintiff absolutely.

Shekleton, Q.C., for the defendant John Savile:—

Under the provisions of the will, the plaintiff takes an estate for life only in the realty, and the defendant John Savile is entitled to an estate tail. The devise to the children prima facie passes the fee, but the creation of successive estates shows an intention to create estates of inheritance, and the result is (as successive estates in fee are impossible) to limit successive estates tail to the children of the plaintiff in priority according to the order of birth. In this context the word “children” is a word of purchase and not of limitation: Ginger d. White v. White (1); Lewis d. Ormond v. Waters (2); Kershaw v. Kershaw (3); Hennessey v. Bray (4). When there is a devise to several in succession in words sufficient to pass the fee, or the whole interest of the testator in freeholds, the Court will, in order to give effect to the general intent, construe the gift as of successive estates tail: Studdert v. Von Steiglitz (5). In Watkins v. Frederick (6), Lord Westbury says, p. 366: “That the grandsons take estates tail follows, of necessity, from the direction that they shall take in succession one after another, ‘the elder son to inherit before the younger,'” and that is strictly applicable to the present case. The general intention to be gathered from the will is to create estates of inheritance in the children of the plaintiff, and that general intention will be carried out as far as possible, viz.: by giving to the children successive estates tail. The general intention is to prevail: Robinson v. Robinson (7), Cleary's Trusts (8). The decision in Jordan v. Adams (9) does not apply to the present case, nor does Palmer v. Palmer (10).

The Earl of Tyrone v. Marquis of Waterford (11) is really an authority in our favour, for there the father and sons were treated

as forming one class, and the words “in succession” referred equally to him and them. Re Childe (1) is distinguishable.

Consequently the defendant John Savile as the eldest and only son of the plaintiff is entitled to an estate tail in the real estate, and to the personal estate absolutely, subject to the life interest of his father the plaintiff in both the realty and the personalty.

Ball, for Beatrice Savile:—

The plaintiff William Savile takes an estate for life only. The children take by purchase. There are no words of limitation attached to the gifts to the children, and they take also life estates in succession, leaving the inheritance in the realty and the remainder in the personalty undisposed of. There is an intention to confer successive life estates on the children. And apart from question of intention the authorities are conclusive on the subject. Foster v. Lord Romney (2); Purcell v. Purcell (3); Bevan v. White (4); Bridger v. Ramsey (5); Palmer v. Palmer (6).

In Robinson v. Robinson (7) the circumstance of a “name and arms” clause was considered a material element in arriving at the decision; on this point see Bevan v. White (4) and Studdert v. Von Steiglitz (8). In Hennessey v. Bray (9) the question was as between an estate in fee and an estate in tail, the words used, unless cut down by implication, necessarily conferring an estate in fee. Earl of Tyrone v. Marquis of Waterford (10) is distinguishable. In Kershaw v. Kershaw (11) the general intention of the testatrix in favour of successive estates tail being given to the sons of James Kershaw (the younger) was plainly manifested.

Matheson, Q.C., for Stephen Moore:—

We adopt and support the contention put forward on behalf of the defendant Beatrice Savile that, on the construction of the will, the plaintiff and the defendants John and Beatrice Savile

take life estates only in the real and personal estate. And Mary Staples having died in the lifetime of the testatrix, the ultimate remainder in the real and personal estate, expectant on the determination of the successive life estates, is undisposed of, the reversion in the real estate passing to the co-heirs of the testatrix, and the remainder in the personal estate to her next-of-kin.

Oulton, in reply.

Oulton, for the plaintiff:—

Shekleton, Q.C., for the defendant John Savile:—

The Master of the Rolls [after stating the facts, as already given, his Lordship continued]:—

I propose to deal with the case first as if the will were conversant with real estate alone. The first matter which strikes one in considering Miss Pennefather's will is that it is perfectly apparent that she intended to dispose of her whole property real and personal. No larger wording could be suggested than “all the property whether in lands or otherwise which I may die possessed...