M'Dermott v Anderson

• Jurisdiction: Ireland
• Judgment Date: 01 December 1914
• Date: 01 December 1914
• Court: King's Bench Division (Ireland)

In the Matter of the Estate of Robert Orr, Deceased;

M'Dermott

and

Anderson and Others.

M.R.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1915.

Will — Charitable Bequest payable out of the Proceeds of the Sale of Land — Charities not administered in Ireland — Death of Testator within three months — Failure of Gift — Charitable Donations and Bequests (Ireland) Act, 1844 (7 & 8 Vict. c. 97), s. 16 — Construction — Gift of Income — Absolute Gift.

A testator by his will directed that all his property should be sold by his executors, and directed them, after payment of certain legacies, to invest the residue of the proceeds, and pay the interest on the same to his wife, so long as she should remain single and unmarried, but in case she should marry again, he directed that she should then only receive the interest on half the amount so invested. The will provided that the testator's wife at her death should have power to dispose of half of the money so invested as she should think fit, and that the balance of the other half, after payment of certain legacies, should be divided equally amongst the Presbyterian Orphan Society, the Presbyterian Jewish Mission, the Presbyterian Foreign Mission, and the Presbyterian Colonial Mission. The testator died within three months of the execution of the will; his widow died intestate without ever having married again.

Held—(1) That the words “in Ireland” in section 16 of 7 & 8 Vict. c. 97 (1),

are to be read in connexion with the words, “no donation, devise, or bequest,” and not with the words “pious or charitable uses,” and that therefore the gifts to the charities failed so far as they were payable out of the proceeds of the sale of land.

In re Knox, deceased, Snodgrass v. Gamble. [1910] 1 I. R. 20, and Boyle v. Boyle, I. R. 11 Eq. 433, followed; Brown v. Harrison, 35 I. L. T. R. 25, not followed.

(2) That as regards the lapsed portion of the residue, there was not, on the true construction of the will, an absolute gift to the testator's wife in the first instance, and that therefore on her death it passed to the next-of-kin of the testator as undisposed of.

Summons.

By his will, dated the 21st May, 1891, Robert Orr directed that all his property, both real and personal, should be sold by his executors, and, after bequeathing certain legacies, provided as follows:—“All the rest, residue, and remainder of my money I direct my executors and trustees to invest as they shall think best, and the interest on same I direct them to pay to my wife, Mary Orr, so long as she shall remain single and unmarried, but in case she shall marry again after my death, I direct that she shall then only receive the interest on half the amount so invested as aforesaid, and the interest on the other half I direct shall be paid in equal portions to my friend John M'Corkell, and Robert Laughlin, during the life of my wife. At the death of my wife I desire that she shall have power to dispose of half of my money so invested as aforesaid as she shall think fit.” The balance of the other half of his money, after payment of certain legacies, the testator directed to be equally divided amongst the following Presbyterian societies, namely:—The Presbyterian Orphan Society, the Presbyterian Jewish Mission, the Presbyterian Foreign Mission, and the Presbyterian Colonial Mission. The testator died on the 22nd May, 1891, and probate of his will was granted to the plaintiff, one of the executors named therein, the other executor having renounced. Mary Orr, the testator's widow, died on the 31st December, 1913, without having re-married. By an order of the Master of the Rolls, dated the 21st April, 1914, made on a summons taken out by the defendant, Joseph Anderson, as personal representative of Mary Orr, it was declared that, on the true construction of the will of the testator, Mary Orr took an absolute interest in one moiety of the residue of his estate. The remaining moiety consisted in part of the proceeds of the sale of lands. This summons was taken out by the executor of the testator for the determination of two questions: whether the gift of the residue to the charities lapsed so far as the residue represented the proceeds of the sale of lands; if so, did such lapsed portion go to the next-of-kin of the testator or to the personal representative of the widow?

Pringle for the plaintiff.

Herbert Wilson K.C., for the Presbyterian Foreign, Jewish, and Colonial Missions.

It is submitted that the bequest to these charities is good; no portion of the moneys received by them is applied for pious or charitable uses in Ireland. The words of sect. 16 of 7 & 8 Vict....