James v Shannon

• Jurisdiction: Ireland
• Judgment Date: 17 February 1868
• Date: 17 February 1868
• Court: Rolls Court (Ireland)

Rolls.

JAMES

and

SHANNON

King v. Inhabitants of Ringstead 9 B. & Cr. 218.

Bird v. Hunsdon 2 Swan. 342.

Gardner v. SheldonENR Vaugh. 262, 3.

Fagge v. HeasemanENR Willes, 141.

Jones v. Morgan Fearne, 589.

Brown v. De Laet 4 Br. C. C. 534.

Wilkinson v. AdamsENR 1 V. & B. 466.

Fitzhenr v. BonnerENR 2 Drew. 40.

Bendale v. SummersetENR 5 Burr. 2608.

Franklin v. TroutENR 15 East, 398.

Bird v.Hunsdon 2 Swan. 342.

Blackwell v. BullENR 1 Keen, 176.

Betty Smith's TrustsELR L. R. 1 Eq. 79.

Blake's TrustsELR L. R. 3 Eq. 799.

Humphreys v. HumphreysELR L. R. 4 Eq. 475.

Wright v. CundallENR 9 East, 403.

Hoskins v. HoskinsENR 9 East, 305.

Weddel v. Munday 6 Ves. 341.

Ex parte RogersUNK 2 Mad. 449.

Harman v. Dickinson 1 Br. C. C. 91.

Dowling v. DowlingELR L. R. 1 Eq. 442.

Grey v. PearsonENR 6 H. L. C. 81.

Baker v. BakerENR 6 H. L. C. 616.

Davis v. DavisENR 1 Russ. & M. 645.

Fitzhenry v. Bonner Tud. L. C. 580.

Bowring's TrustsENR 2 Drew. 36.

Gardner v. Sheldon W. N. June 1st, 1867.

Brown v. De Laet 4 Br. C. C. 534.

Doe v. Summerset 5 Bur. 2608; 2 W. Bl. 692.

King v. Ringstead 9 B. & Cr. 218.

Aspinal v. PetvinENR 1 Sim. & St. 544.

Stevens v. HaleENR 2 Dr. & Sm. 22.

Crawley v. DixonENR 23 Beav. 112.

Doe v. Summerset 5 Bur. 2608; 2 W. Bl. 692.

Bird v. Hunsdon 2 Swan. 342.

Blackwell v. BallENR 1 Keen, 176.

Betty Smith's TrustsELR L. R. 1 Eq. 75.

Goodright v. HoskinsENR 9 East, 306.

Davis v. DavisENR 1 Russ. & M. 645.

Ex parte RogersUNK 2 Mad. 449.

Ranelagh v. RanelaghENR 12 Beav. 200.

Lee v. Busk 2 D. M. & G. 812.

Sparks v. BestalENR 24 Beav. 218.

Kinsella v. CaffrayUNK 11 Ir. Ch. Rep. 154.

Horton v. HortonENR Cr. Jac. 74.

Attwater v. AttwaterENR 18 Beav. 330.

Pickering v. Lord Stamford 2 Ves. Jun. 272.

Doe v. SummersetUNK 5 Bur. 2608; 2 Wm. Bl. 692.

Bird v. Hunsdon 2 Swan. 342.

HUmphreys v. HumphreysELR L. R. 4 Eq. 435.

Stevens v. HaleENR 2 Dr. & Sm. 22.

Crawley v. DixonENR 23 Beav. 512.

Bird v. Hunsdon 2 Swan. 342.

Bird v. Hunsdon 2 Swan. 342.

Humphreys v. HumphreysELR L. R. 4 Eq. 475.

Betty Smith's TrustsELR L. R. 1 Eq. 79.

Blake's TrustsELR L. R. 3 Eq. 799.

Goodright v. HoskinsENR 9 East, 306.

Davis v. Davis 2 R. & M. 648.

Fitzhenry v. BonnerENR 2 Drew. 36.

Attwater v. AttwaterENR 18 Beav. 330.

King v. Inhabitants of Ringstead 9 B. & Cr. 218.

Will — Construction — Bequest of Personalty — Estate by implication.

118 THE IRISH REPORTS. hardly be deemed satisfactory. I therefore shall feel justified in certifying for costs. Solicitor for the Plaintiff : Air. John T. Hamilton (the Queen's Proctor). Solicitor for the Defendants : Hr. Joseph H. Doran. JA WS v. SHANNON. Will-Constrv,etion-Bequest of Personalty-Estate by implication. A. testator devised to A. all his real estate, including chattels real, in trust for B. and her heirs, for her sole and separate use. Provided, that if B. should die under the age of twenty-one years, and unmarried, he bequeathed all the property he should be possessed of or entitled to at his decease to A., his heirs, &a., for ever, subject to a life annuity ; and he bequeathed a legacy of £500 to A., whom he appointed his executor. Held, that there was no gift by implication of the personal estate to B. GEORGE LIDWELL SHANNON made his will, dated the 15th of February, 1864, as follows :- "I give and bequeath unto JohnJames, Esquire, of, &c., and unto his heirs, executors, and administrators, respectively, all my real estate of every tenure, including chattels real, of, or to which, I shall at my death be seised, possessed, or entitled in trust, for Catherine Anne M'Donnell, her heirs, executors, and administrators, for her sole and separate use, independently of her husband (if any) for the time being, and of his debts, control and engagements, and her receipt alone shall be a discharge. Provided, however, if she, the said Catherine Anne Inonnell, who was born at Kilkenny in the year of our Lord, 1854, shall die under the age of twenty-one years, and unmarried, then I bequeath all the property of every nature and kind whatsoever of which I shall be possessed or entitled to at the time of my decease, unto the aforesaid John James, Esquire, of, &c., and to his -heirs, executors, and administrators for ever ; EQUITY SERIES. subject to an annuity of .R50 yearly, to be paid in two equal half-yearly portions, to Catherine M'Donnell, mother of Catherine Anne M`Donnell, &c. I hereby appoint the said John James, Esquire, of, &c., sole executor of this my last will and testament, and I beÂÂÂqueath to him the suna. of X500 sterling." The testator died without issue on. the 3rd of October, 1866, seised and possessed of considerable real and personal estate, leavÂÂÂing a widow and several next of kin. The will was proved by the executor, who instituted this suit for the administration of the testator's real and personal estate. The Master, to whom the cause petition was referred, by a deÂÂÂcretal order dated the 9th of December, 1867, declared that the residue of the personal estate consisted of £12,302 Os. 10d., GovernÂÂÂment stock, after payment of debts and the legacy of £500 ; and that upon the true construction of the will the income of the perÂÂÂsonal estate, less by certain payments in the interval between the death of the testator and the marriage or death under age of the minor, Catherine Anne M'Donnell, was undisposed of, and that the bequest to the Petitioner was contingent upon the death under age and unmarried of the said minor, and that if such an event takes place, the Petitioner will be entitled to the entire real and personal estate of the said testator, inducting the accumulations of the income of the personal estate. And he further declared that the minor was entitled to the entire of the real and freehold estate of the testator, subject to the defeasance of her estate and interest therein on her death, wader the age of twenty-one and unmarried, and that in the event of the said minor attaining the age of twenty-one years, or marrying under that age, Emily Shannon, the testa, tor's widow, and his next of kin will be entitled to the personal estate, and the accumulations of the personal income. Catherine Anne M'Donnell moved, by way of appeal, that the order might be varied in the foregoing declarations as to the perÂÂÂsonal estate, and that it might be declared that on the true conÂÂÂstruction of the will she was presently entitled to the whole of the residuary personal estate, but that her estate or interest therein was defeasible on her death under the age of twenty-one years or unmarried. 12 0THE IRISH REPORTS. Rolls. Mr. Thomas E. Webb (with whom was Mr. F. W. Walsh, Q. C.) 1868. in support of the appeal. JAMES The words introducing the limitation over, "provided, however, v. if," refer to both the real and the personal estate. This is not a SHANNON. case on which the distributive construction can be adopted : King v. Inhabitants of Ringstead (1). Such a construction is positively excluded by the context. The immediate gift of £500 to John James is inconsistent with the notion that he was intended to take the whole personal estate immediately. The words of proviso or postponement, therefore, apply to both the real and the personal estate, and there are thus two distinct gifts which must be conÂÂÂsidered distinctly-the one, an express devise with an executory limitation over ; the other, an executory limitation over with no anterior express bequest. What, then, is the effect of a gift of personal estate to B., if A. should die under twenty-one and unmarried. As there is no exÂÂÂpress provision for the alternative events if A. should live and attain the age of twenty-one or marry, it is clear that it is a case either of a partial intestacy or of a gift by implication. But the Court will not presume a partial intestacy to avoid such a conclusion. In Bird v. Hunsdon (2) a life interest was implied in favour of a person to whom a less 'interest had been expressly limited. On the whole of this will it is evident that the testator was under the impression that he was dying fully testate. It is equally evident that there is an omission in the will, and the question to be decided is, whether the will itself supplies such intimations of intention that the omission can be legally supplied. The personal estate is to go to James, provided Catherine Ann 3,1`Donnell dies under the age of twenty-one and unmarried.. Here there are three events, each personal to Catherine Ann li'Donnell, the concurrence of which is necessary in order that the limitation over should take effect ; and, on the authorities, each of these three events supplies a base for the implication of an interest to Catherine Ann AI'Donnell in the alternative events of her living to attain the age of twenty-one, or...