Kinsella v Caffrey

• Jurisdiction: Ireland
• Judgment Date: 20 November 1860
• Date: 20 November 1860
• Court: Rolls Court (Ireland)

Rolls.

KINSELLA

and

CAFFREY.

Ranelagh v. RanelaghENR 12 Beav. 200.

Addison v. BuskENR 14 Beav. 459.

Towns v. Wentworth 11 Moo., P. C. C., 543.

Sparks v. RestallENR 24 Beav. 21.

Scott v. BargemanENR 2 P. Wms. 68.

Graves v. HollandUNK 11 Ir. Eq. Rep. 234.

Doyne v. CartwrightENR 1 Coll. 482.

Dp\oe d. Clift v. BirkheadENR 4 Exch. Rep. 110.

Ranelagh v. RanelaghENR 12 Beav. 200.

Sparks v. RestallENR 24 Beav. 218.

Addison v. BuskENR 14 Beav. 459.

Lee v. Busk 2 D., M. De G. 810.

Ranelagh v. RanelaghENR 12 Beav. 200.

Addison v. BuskENR 14 Beav. 459; 2 De. G., M. & G. 810.

Ex parte RogersENR 2 Madd. 449.

154 CHANCERY REPORTS. 1860. ICINSELLA. v. CAFFREY. May 1. (In the Rolls.) Nov. 20. Where there TIMOTHY KINSELLA by his will, bearing date the 24th of Septem is an indefinite bequest to the ber 1839, bequeathed to each of his grand-nephews, Laurence parent, and, if he die without Caffrey and Thomas Caffrey, respectively, one annuity of £50, havin 0. or leav- ing children charged on the dividends of his Government stock, payable during over, the child- cha lives half-yearly, at the times of the payment of the dividends ren do not take by implication' of said stock, with a clause against alienation ; and he directed that, Where there is a bequest to on the death of either of them, leaving issue lawfully begotten, his the parent for life, and, if he annuity should go to such issue equally ; the share of such child or die without children as should happen to die before the age of twenty-one years, having or leav- ing children, or day or days of marriage, to go to and be equally divided amongst over, the child- tied are not en- the survivor or survivors of such issue, during their respective titled by en- plication. lives ; and if but one child, the whole of said annuity of £50 a-year Where there is a bequest to to go to such only child for life ; and in the case of the death of the parent for life, and, if he either of them, Laurence and Thomas Caffrey, without lawful issue die without living at his death o , he ordered that his annuity should g to the having or leav- ing children, survivor for life ; and in case of the death of both his grand over, and there are matters in nephews, " without leaving issue, or, leaving such, and that such the will to raise an infer- issue should die before the age of twenty-one years," in either ence in favour of the children, the Court is at liberty to take them in connection with the bequest in the event of the parent dying without having or leaving issue, and to hold that the children are entitled by implication. A testator bequeathed to each of his grand-nephews, A and B, an annuity for their respective lives, and, in case of the death of either of them, leaving issue, he directed that the annuity of him so dying should go to such issue, if more than one, share and share alike ; the share or shares of such child or children as should die under twenty-one or marriage to go to and be equally divided amongst the surÂvivor and survivors of such issue, during their respective natural lives ; and if but one, the whole of the annuity to go to such only child for life ; and in case of the death of either A or B, without lawful issue living at his death, that the annuity of him so dying should go to the survivor for his life ; and in case of the death of both A and B, without leaving issue, or, leaving such, and that such issue should die before the age of twenty-one years, then, after the death of the survivor of such issue of A and B, he directed that the said two annuities should sink into his residuary personal estate. A died without issue.-Held, that there was a bequest, by impliÂcation, of A's annuity to the children of B. CHANCERY REPORTS. 155 ease, and immediately after the death of the survivor of such issue, the said two annuities of £50 a-year should sink into and forth part of his capital stock and funds, for the residuary purposes of his will ; and he bequeathed the residuary fund, subject to an annuity, to his nephew John Kinsella. The exact terms of the bequest are stated by his Honor, in his judgment, infra, pp. 156, et seq. Timothy Kinsella died shortly after his will ; and a bill having been filed to carry the trusts of the will into execution, by a decree in the cause, bearing date the 13th of May 1847, two sums of stock were set apart, and directed to be carried to a separate credit, to answer the annuities. Thomas Caffrey left Ireland in April 1847 ; and not having been heard of afterwards, an order was made, on the 13th of July 1858, referring it to the Master to inquire and report whether the said Thomas Caffrey was living or dead ; and if the said Thomas was married, and, if married, whether' he had any child or children: The Master, by his report, dated the 17th of February 1860, found that,. he was dead, and had died on the 22nd of April 1847, and that he was not married at the time of or previous to his death. Laurence Caffrey died on the 19th of October 1857, leaving five children, Thomas, Marian, Rosanna, Laurence and John Joseph, all under age. A motion was now •made by John Kinsella, the residuary legatee, that the stock set apart to answer Thomas Caffrey's annuity might be transferred to him. Mr. S. Ferguson and Mr. Lindsay, in support of the motion, Argument. contended that, on the death of Thomas Caffrey, his annuity sank into the residue. There was no bequest by implication to the children of the survivor. In order to create a gift by implication, a clear intention to that effect must be collected from the will. The intention to be collected in this will was rather against such an imÂplication, for both annuities...