Mahony v Donovan

• Jurisdiction: Ireland
• Judgment Date: 18 November 1863
• Date: 18 November 1863
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

MAHONY

and

DONOVAN.

Timewell v. PerkinsENR 2 Atk. 103.

Roberts v. KuffinENR 2 Atk. 113.

Cook v. Oakley 1 P. W. 302.

Hotham v. Sutton 15 Ves. 319.

Re Ludlow 1 Swa. & Tri. 29.

Swinfen v. SwinfenENR 29 Beav. 207.

Gover v. Davis Ib. 222.

Gibbs v. Lawrence 30 L. J., Ch., 171; S. C., 7 Jur., N. S., 137.

Popham v. AylesburyENR Amb. 68.

Lamphier v. Despard 2 Dr. & War. 59.

Sanders v. Earl 2 Chan. Rep. 98.

Chapman v. Hart 1 Ves. 271.

Stafford v. Berridge 1 Eq. Ca. Abri. 201, pt. 14.

Arnold v. Arnold 2 M. & K. 365.

Creagh v. Creagh 13 Ir. Chan. Rep. 28.

Popham v. Lady AylesburyENR Amb. 68.

Arnold v. Arnold 2 M. & K. 365.

Swinfen v. SwinfenENR 29 Beav. 207.

Gover v. DavisENR 29 Beav. 222.

Roberts v. KuffinENR 2 Atk. 112.

388 CHANCERY REPORTS. 1863. Ch. Appeal. Court of apptai in Cbanttry. MAHONY v. DONOVAN. Nov. 18. Bequest of THIS case came before the Court upon appeal from an order of his "All my right and title to my Honor the Master of the Rolls, reported supra, p. 262. The fol property in the town of R.- lowing were the material circumstances of the case namely, my dwelling house On the 30th January 1860, Charles O'Donovan, a Roman Ca and household furniture, and tholic clergyman, the testator in the cause, made his will, in the ther all thiei, in ngs nomw y following terms :-G°I, Charles O'Donovan, Roman Catholic cler- possession, es- gyman of the parish of Rathcormac, barony of Barrymore, and pecially my car-horse, and county of Cork, being sick, but of sound mind and perfect judg covered and side cars."- ment, do make this my last will and testament, hereby revoking Held, that bank notes, all former wills or settlements whatsoever. I bequeath unto my known by the testator to be beloved niece Honora Donovan, at present living with me, my in the house at the time the right and title to my property in the town of Rathcormac-namely, will was made, my dwelling-house, household furniture, and all things now therein, passed to the legatee. in my possession, especially my car-horse, and covered and side cars. I will unto my faithful steward Thomas Ahern my property in Monananig, parish of Gortroe-namely, the farms, and entire stock now thereon, without any profit rents, subject only to the rent agreed on between me and the Right Hon. Lord Fermoy, the landlord. I now name and appoint Mr. Michael Arnold, of this town, as my executor, whom I charge to have this my will fulfilled and executed, according to my expressed intentions. I now will my body to be buried in the parish church of Rathcormac, among my beloved parishioners." It appeared that this will had been prepared and executed in the presence of the Rev. Maurice Kenefick and of the Rev. Daniel M'Swiney, at the house of the testator, on the night of the 30th of January 1860 ; that, after having been duly executed, it was given into the custody of the said Rev. Maurice Kenefick, who took CHANCERY REPORTS. 389 same away with him ; and that, after the will was executed, and after the Rev. Maurice Kenefick had departed from the house, 'havÂing same in his custody, the Rev. Daniel M'Swiney remained in attendance upon the testator, and while there he accidentally disÂcovered the sum of £1081 ; which was, after the death of the testator, deposited in the Provincial Bank, for the benefit of all parties interested therein. It further appeared that the testator was perfectly aware, at the time of making the will, that this money was in the house, but did not communicate it to the persons drawing his will. The sum realised for the house and furniture mentioned in the will was £30, and no more. The car therein mentioned was not sold at all,.and it was not worth more than £10; and it--did not appear that the testator possessed any further property. The Master in the matter having declared that the testator died intestate as to the sum of £1081, the...