Mackessy v Fitzgibbon

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 01 January 1993
• Neutral Citation: 1993 WJSC-HC 940
• Date: 01 January 1993
• Docket Number: No. 445SP/1991,[1991 No. 445 Sp.]
• Court: High Court

1993 WJSC-HC 940

THE HIGH COURT

No. 445SP/1991

MACKESSY v. FITZGIBBON

IN THE MATTER OF THE WILL AND ESTATE OF JOHN J. (OTHERWISE

JACK) FITZGIBBON DECEASED

AND IN THE MATTER OF THE SUCCESSION ACT 1965

BETWEEN

MAUREEN MACKESSY

PLAINTIFF

AND

MARK FITZGIBBON, CORA MULLANE AND WILLIAM FITZGIBBON

DEFENDANTS

Citations:

SIFTON V SIFTON 1938 AC 656

HENNESSY, IN RE 98 ILTR 39

MOFFAT V MCCLEARY 1923 1 IR 16

MOTHERWAY V COGHLAN 98 ILTR 134

SUCCESSION ACT 1965

Synopsis:

WILL

Construction

Land - Devise - Gift over - Condition subsequent - Event - Uncertainty - Devisee required to live and work on the land - Bequest of goods and chattels - Bequest restricted to articles on the property devised - (1991/445 Sp - Carroll J. - 31/7/92)1993 1 IR 520

|Mackessy v. Fitzgibbon|

1 Judgment given on the 31st of July 1992 by Miss Justice Carroll.

2 The Testator John J. Fitzgibbon by his Will dated the 19th of February 1990 appointed the Plaintiff as his Executrix and made the following devise and bequest:

"I leave devise and bequeath my farm of land at Clouncourivane together with dwelling house and out-office, cattle and stock, goods and chattels therein and thereon to my grand-nephew Mark Fitzgibbon son of my nephew Joe Fitzgibbon of Carlow provided he lives and works on the land but if he does not then I leave my land together with dwelling house and out-office and all goods and chattels, cattle and stock to my niece Mrs. Cora Mullane absolutely."

3 He then made a number of pecuniary legacies. There was no residuary clause. He died on the 31st of March 1990 and probate was granted to the Plaintiff on the 10th of December 1990. She has brought a construction summons to construe the Will. The Beneficiary Mark Fitzgibbon was a minor at the date of the Testators" death, having been born on the 29th of August 1973. He is now full age. The Testator left a nett estate of about £196,000.

4 In construing this Will there are certain principles of law to be applied. Firstly there is a presumption in favour of early vesting; if there is a doubt about whether a condition is precedent or subsequent, the Court prima facie treats it as subsequent. Secondly, where a vested estate is to be defeated by a condition on a contingency that is to happen subsequently, the condition must be such that the Court can see from the beginning precisely and distinctly upon the happening of what event it was that the preceding vested estate was to determine. (See Sifton v. Sifton 1938 A.C. 656)

5 Here there are two elements to the condition "provided he lives and works on the land" and there are two questions to be answered:-

6 1. Is the condition a condition precedent or subsequent? and

7 2. Is the condition void for uncertainty?

8 I am satisfied the condition is a condition subsequent. It provides for two requirements which if they are not fulfilled would lead to a forfeiture. Accordingly the condition is a condition subsequent.

9 As to whether the composite condition, "living and working", is void for uncertainly, an examination of some decided cases is of help.

10 In the case of In re Hennessy deceased ( 98 I.L.T.R. 39) there was a devise of land to a son

"if he wishes to farm it and carry on same as he thinks best, if not to my daughter Yvonne. If either my son or my daughter do not survive or wish to carry on the farm I wish it to go to my brother J.H. for one of his sons".

11 The condition as to farming was held by Budd J. to be a condition subsequent void for uncertainty. He said at page 45 he found it impossible to say with any degree of certainty what is the meaning of the words "to farm it and carry on same as he thinks best."

"Is it meant that the Beneficiary must farm himself as it were with his own hands personally or is it sufficient if he or she farms through an agent or indeed let the lands in grazing or conacre. It is sufficient in the circumstances to say it is not clear precisely what is meant and it is therefore not possible to say upon the happening of what event the estate given would determine. In my view therefore the condition as to farming is void for uncertainty."

12 In Sifton v. Sifton 1938 A.C. 656 a provision in a Will that payments be made "only so long as she shall continue to reside in Canada" was held to be void for uncertainty. In a decision of the House of Lords Lord Romer said at page 675

"Their Lordships" attention was called during the arguments to numerous authorities in which the Court has been called upon to consider the meaning of the words "reside" and "residence", and the like. But these authorities give their Lordships no assistance in construing the present will. The meaning of such words obviously depends upon the context in which the words are used. A condition, for instance, attached to the devise of a house that the devisee should reside in the house for at least six weeks in a year can present no difficulty. In some contexts the word "reside" may clearly denote what is sometimes...