Macnamara, Re; Coe v Beale

• Jurisdiction: Ireland
• Judgment Date: 10 June 1943
• Date: 10 June 1943
• Docket Number: (1942. No. 1599.)
• Court: Court of Appeal (Ireland)

(1942. No. 1599.)

In re Mcnamara; Coe v. Beale

In the Matter of the Estate of ELIZABETH A. M. MACNAMARA, Deceased; and in the Matter of the Charity Procedure Act, 1812; WILLIAM COURTENAY ROCHE COE

Plaintiff

and

ALFRED BEALE AND OTHERS

Defendants.

Will - Construction - Gift of house to Young Men's Christian Association - Whether a valid charitable gift - Absolute gift - Desire of testatrix that said Association should use house as a rest and holiday home for Protestant men - Gift of income from certain property for the maintenance of said holiday home - If "impracticable" so to use house said income to be applied for the general benefit of the Association - Whether said desire of testatrix created a trust - Alternative gift if said house not so used - Charitable gift accompanied by non-charitable trust - Gift over of non-charitable trust funds - Gift void for remoteness - Rule against perpetuities.

Construction Summons.

Construction summons brought by the plaintiff as one of the executors of the will, dated the 12th day of August, 1937, of Elizabeth McDonnell Macnamara, deceased, for the determination of certain questions arising upon the construction of the will.

The will, after bequeathing certain pecuniary legacies, continued as follows:—

"I give, devise and bequeath to the Young Men's Christian Association, Cork, my dwelling-house and premises known as Glenseskin absolutely, and I desire that the said Association use same as a rest and holiday home for Protestant men, and I direct my trustees to pay out of the income from my property in Grafton Street and Parliament Street, Dublin, the sum of £20 per annum to the trustees for the Asylum for Distressed Widows of Clergy, Langford Place, Cork, and subject thereto to apply the remainder of the income from said property for the maintenance of said holiday home, but in the event of it being found impracticable to use Glenseskin as such holiday home then I direct that the income from my said property in Grafton Street and Parliament Street aforesaid shall be applied for the general benefit of the Young Men's Christian Association, Cork."

The plaintiff sought the determination of the following questions arising on the construction of the said will:—

(1) Is the bequest in the said will contained of the dwelling-house and premises known as Glenseskin a bequest(a) to the Association, or (b) to the trustees of the Association, or (c) to the members of the Association at the date of the death of the testatrix?

(2) Is the said bequest absolute and unfettered or is it coupled with a trust to use the subject of the bequest as a rest house and holiday home for Protestant men?

(3) Is the bequest a valid charitable bequest?

(4) If not charitable, is the bequest void as tending to a perpetuity or otherwise?

(5) If the bequest is a valid bequest to the members of the Association living at the death of the deceased free from any trust are the members or their trustees competent to dispose of the same?

(6) If the bequest constitutes a charitable trust which cannot be performed, does the property fall into residue or must a scheme be settled for its future management?

(7) If the direction to apply the surplus rents of the Dublin property of the testatrix for the maintenance of the said holiday home cannot be complied with, how, and for whom, should the same be applied and paid?

(8) (a) Does the direction to apply the surplus of the income of the property of testatrix in Grafton Street and Parliament Street carry with it the fee simple of the said property? (b) Does the said direction to the trustees create a perpetual trust? (c) If so, is the same a valid devise or gift of the said property? (d) Who, in the events which have happened, is entitled to the said property?

(9) Is the sum of £20 per annum out of the income of the property of testatrix in Grafton Street and Parliament Street to the trustees of the Asylum for Distressed Widows of Clergy, Langford Place, Cork, payable irrespective of whether or not it is found impracticable to use Glenseskin as a holiday home for Protestant men?

George Bird, the General Secretary of the Cork Branch of the Young Men's Christian Association, in an affidavit averred that by an indenture of the 8th day of April, 1892, it was declared that the premises of the Cork branch of the said Association at Marlboro' Street, Cork, were vested in trustees who...