MacPhail v Phillips

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 03 February 1904
• Court: Chancery Division (Ireland)
• Docket Number: (1904. No. 10.)
• Date: 03 February 1904

Macphail

and

Phillips.

Barton, J.

(1904. No. 10.)

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.

1904.

Will — Construction — Ejusdem generis — “All my household furniture and effects in my residence” — Wool in store forming part of residence.

A testator bequeathed his house in Abbey-street to his son for life, and, after intervening provisions, bequeathed to him “all my household furniture and effects in my residence, Abbey-street, aforesaid.” At the time of the testator's death there was a large quantity of wool, part of his stock-in-trade, stored in a store which was at the rere of and admittedly formed part of his residence. The will contained a residuary bequest:—

Held, that the wool did not pass under the bequest to the son, but was included in the residuary gift.

Originating Summons.

John Phillips, of Abbey-street, Wicklow, victualler, made his will, dated the 3rd October, 1900, and thereof appointed Francis W. Mac Phail and William Desaix executors and trustees. he directed his debts and funeral and testamentary expenses to be paid, and devised and bequeathed unto his son Francis his house and premises, Main-street, Wicklow, known as the Catholic Club, also his houses in Castle-street and Fitzwilliam-road, Wicklow, also his house in Abbey-street, Wicklow, for his (Francis’) life, with certain remainders for other sons and the children of his daughter; he devised and bequeathed certain lands to his sons Joseph and Francis for their lives, with remainders for other sons and the children of his daughter, and proceeded:—“I bequeath unto my son Francis all my household furniture and effects in my residence, Abbey-street, aforesaid. I bequeath to my sons Joseph and Francis all my live stock, horses, and farm produce. I bequeath the schooner ‘Progress’ to my son Bernard, and the schooner ‘Mary Ann’ to my son Francis. All the rest, residue, and remainder of my property I give” to his trustees upon certain trusts for his sons and daughter and her children.

The testator died on the Sth September, 1903.

William Desaix renounced, and probate was granted to Francis Mac Phail on the 15th October, 1903.

This summons was taken out by Francis Mac Phail as plaintiff against Francis Phillips as defendant, for the determination of the question whether a quantity of wool in a store at the rere of the testators residence passed to the said Francis Phillips, or formed part of the residuary personalty.

Two affidavits were filed on behalf of the plaintiff, from which it appeared that at the testator's death a quantity of wool—amounting to about 4000 lbs.—was stored in a store at the rere of his house: it was so stored since about the end of May, or beginning of June, 1903; the store was situate in a yard at the rere of the testator's residence at Abbey-street, but separated therefrom by a public road called Fitzwilliam-road; the residence fronted Abbey-street, and extended in the rere to Fitzwilliam-road; the store was originally held under a yearly tenancy from Earl Fitzwilliam, at a rent of £7 17s. 6d., but by a lease dated the 29th June, 1901, the earl demised to the testator the dwellinghouse and premises, his residence, and also the said yard and store for ninety-nine years at £10 a year.

An affidavit by the defendant stated that he was the testator's eldest son, and, alone of the brothers, always assisted the testator in his butcher's and wool-dealing business, and he himself bought the wool in question, in addition to about £10 worth, which he bought since his fathers' death, all which wool was at present stored in the yard. That yard had always been used as the yard of the residence in Abbey-street, bequeathed...