Kilroy v Parker

• Jurisdiction: Ireland
• Judgment Date: 10 June 1966
• Date: 10 June 1966
• Docket Number: (1965. No. 21 Sp.)
• Court: High Court

(1965. No. 21 Sp.)

Kilroy v. Parker.

In the Matter of the Last Will of PATRICK J. PARKER

Deceased.

Between PETER KILROY and THOMAS L. CALLAN,Plaintiffs, and JOSEPH E. PARKER and CARMEL McGAURAN

Defendants.

Will - Construction - Bequest - Gift to a class - Validity - Direction to pay income amongst testator's necessitous nieces and nephews and their children - Ten-year period - Gift not void for uncertainty - Mode by which effect should be given to direction - Meaning of "necessitous."

Special Summons.

The plaintiffs, Peter Kilroy and Thomas L. Callan, as executors of the last will of Patrick J. Parker, deceased, brought a summons in the High Court for the determination of questions arising on the construction of his will, dated the 31st January, 1959, and a codicil thereto, dated the 10th August, 1960. The testator died on the 13th July, 1963, and probate was granted to the plaintiffs on the 13th October, 1963. The first-named defendant was the sole surviving brother of the testator and the second-named defendant was a niece of the testator and she also represented the general class of nieces and nephews. The class of necessitous nieces and nephews of the testator alive at the date of the death of the testator (including such as might become necessitous during the period of ten years from the date of the death of the testator) was represented by Millie Mangan. The class of nephews and nieces who should be living on a date ten years from the date of the death of the testator was represented by Stephen T. Parker.

The facts have been summarised in the head-note and appear fully in the judgment of Budd J., post.

By his will, dated the 31st January, 1959, a testator provided:—". . . I will devise and bequeath to my executors in trust my holding of Land Bonds and all the rest residue and remainder of my property and I direct them . . . to pay to my niece [M.P.] the sum of £3 per week clear for ten years after my death and to divide the balance of . . . income amongst such of my necessitous nieces and nephews (alive at the date of my death) and such of their children as my executors in their discretion may think fit. I direct my executors on a date ten years from my death to realise the residue of my property including my Land Bonds and convert same into cash and to divide same in equal shares amongst all my nephews and nieces then living." By a codicil to the said will, dated the 10th August, 1960, the testator revoked the direction and bequest ill favour of the said M.P. and, in substitution therefor. he bequeathed to her the sum of £50. He confirmed the will in all other respects.

Held by Budd J. 1, that the trust to divide the income amongst a class of the testator's necessitous nieces and nephews according to the discretion of his executors was not void for uncertainty on the ground that such a class was incapable of ascertainment.

Per Budd J.:—"'Necessitous' is necessitous according to the particular circumstances in life of the individual whose eligibility comes under consideration."

2, That the testator intended to benefit such nieces and nephews as were necessitous over the ten-year period and that his bounty was not confined to those who were necessitous at the date of his death;

3. That all children of necessitous nieces and nephews qualified as members of the class, whether themselves necessitous or not, amongst whom the executors should exercise their discretion in dividing the income;

4, That the fact that the class might fluctuate during the ten-year period did not render the bequest void for uncertainty.

Mahon v. Savage 1 Sch. & Lef. 111; Mitchell's Trustees v. Fraser 1915 S.C. 350 and Magee v. Magee [1936] 3 All E.R. 15 considered and applied.

Per curiam:—"The executors' proper method of procedure would seem to be to find out from time to time the financial position of such nieces and nephews as were alive at the date of the testator's death and then decide which in their respective circumstances of life fall within the category of being necessitous nieces and nephews during the ten-year period . . . . . . They have then to exercise their discretion amongst which of them, and in what proportions, they will divide the annual income."

5, That the ultimate residue should be divided amongst such of the testator's nephews and nieces as should be alive ten years from the date of the death of the testator.

Cur. adv. vult.

Budd J.:—

In these proceedings the executors of Patrick J. Parker, deceased, seek the determination by the Court of certain questions arising on the construction of the deceased's will, dated the 31st January, 1959, and one codicil thereto, dated the 10th August, 1960. The testator died on the 13th July, 1963, and probate of his said will and codicil was granted to his executors on the 13th October, 1963.

By his said will, after making certain other provisions and bequests not material, the testator made certain provisions for his nephews and nieces and their children in the following terms:—

"Notwithstanding any direction heretofore contained in this my Will I Will Devise and Bequeath to my executors in trust my holding of Land Bonds and all the rest residue and remainder of my property and I Direct them to retain said Land Bonds or to reinvest same and any other residue from time to time in such trustee securities as my executors may be advised and out of the income therefrom after paying all legal and necessary expenses to pay to my niece Miss Marie Parker the sum of £3 per week clear for ten years after my death and to divide the balance of such income amongst such of my necessitous nieces and nephews (alive at the date of my death) and such of their children as my executors in their discretion may think fit. I Direct my executors on a date ten years from my death to realise the residue of my property including my Land Bonds and convert same into cash and to divide same in equal shares amongst all my nephews and nieces then living."

The said codicil to the testator's will contained a clause revoking the bequest to Marie Parker and is as follows:—

"Whereas by my said Will I directed my executors to pay to my niece Miss Marie Parker a sum of £3 per week clear for ten years after my death Now I Hereby Revoke the said direction and bequest in favour of my said niece Miss Marie Parker and in substitution therefor I will devise and bequeath the sum of fifty pounds to my said niece Marie Parker."

After providing for another bequest and dealing with a

matter of identification, the testator confirmed his said will in all other respects.

The questions that have been raised in the Special Summons herein are as follows:—

"1 (a). Is the devise and bequest and direction contained in the said will in the following terms: 'I will devise and bequeath to my executors in trust my holding of Land Bonds and all the rest residue and remainder of my property and I direct them . . . to pay to my niece Miss Marie Parker the sum of £3 per week clear for ten years after my death and to divide the balance of such income amongst such of my necessitous nieces and nephews (alive at the date of my death) and such of their children as my executors in their discretion may think fit' as altered by the revocations by the codicil of the direction to pay to the testator's said niece the sum of £3 a week clear for ten years after the testator's death and the substitution therefor of a legacy of £50 void for uncertainty or for any other reason and if so to what extent?

1 (b). If the answer to the above is in the negative:

(i) By what method or by what standards are the executors to decide which of the nieces or nephews of the testator and such of their children come within the class, 'necessitous'? or

(ii) Are the executors entitled both as to person and as to amount to select from amongst the necessitous nephews and nieces of the testator and their children the persons to share in a division?

(iii) Are the executors entitled to distribute the entire of the income from the Land Bonds and other residue amongst such of the necessitous nephews and nieces and such of their children as they at their discretion may select and if so for what period?

2 (a). If the answer to 1 (a) above is in the affirmative or if there are no necessitous nieces or nephews of the testator is the direction and bequest contained in the will in the following terms: 'I direct my executors on a date ten years from my death to realise the residue of my property including my Land Bonds and convert same into cash and to divide the same in equal shares amongst all my nephews and nieces then living' void for uncertainty or for any other reason? or

(b) Are the executors entitled to divide the proceeds of the conversion of the said Land Bonds and residue amongst the nephews and nieces of the testator living (i) at the date of death of the testator; (ii) who shall be alive at a date ten years from the date of the testator's death; (iii) or is there an intestacy as to the testator's Land Bonds and residuary estate?"

The testator's residuary estate has now been ascertained and the nephews and nieces of the testator are known to the executors. A number of their children are likewise known and since the names and addresses of the parents are known there should be no difficulty in ascertaining the others. The testator's brothers and one sister all pre-deceased him with the exception of one brother, the defendant, Joseph E. Parker.

The main matter at issue is as to whether or not the gifts in trust of income and capital contained in the will are void for uncertainty. The contention made on behalf of the defendant, Joseph E. Parker, is that the gift of income is void for uncertainty and that since the whole residuary clause should be read as one the whole gift of residue is void and falls to be dealt with as on intestacy. Alternatively, it is contended that the gift of income is void for uncertainty and that...