McGowan Enery; O'Connell v Attorney General and Others

• Jurisdiction: Ireland
• Judgment Date: 24 March 1941
• Date: 24 March 1941
• Court: High Court

In re McEnery; O'Connell v. Attorney-General

In the Matter of the Estate of MICHAEL JOSEPH McENERY, Deceased; J. A. O'CONNELL

Plaintiff

and

THE ATTORNEY-GENERAL, GERALDINE C. McENERY, MABEL M. McENERY,and Others

Defendants.

Will - Construction - Charitable trust - Bequest of income of trust fund after death of testator's wife - To be applied to enable sons and daughters and made descendants of testator's brothers to obtain professions - Validity of gift - Whether charitable - 43 Eliz. c. 4 - 10 Chas. 1, Sess. 3, c. 1.

Construction Summons.

Michael Joseph McEnery died on 12th March, 1940, having made his will, dated the 3rd August, 1915, and a codicil thereto, dated the 5th March, 1919. The testator having given a number of pecuniary legacies and directed that "the remainder of my money, stocks, shares and so forth is to be invested and the dividends thereon paid to my said wife during her life" proceeded as follows:—"After the death of my said wife I direct that the moneys then invested, stocks and so forth, shall be regarded as a trust fund for enabling the sons and daughters and male descendants of my brothers to obtain professions, each suitable student to receive one hundred pounds yearly for a reasonable time from the dividends arising from said trust fund; and if a sufficient number of suitable students shall not be forthcoming in any one year to exhaust the dividends the unexpended balance shall be invested and added to the trust fund. The executors are to nominate the first three trustees of this fund and the number of trustees is to be kept up to three by co-option. The trustees are to decide who are to be the beneficiaries when more suitable students offer than the dividends can meet."The testator by the codicil directed that certain pecuniary legacies should not be paid until after the death of his wife, and that they should then be paid out of the dividends from the fund previously paid to his wife to the several legatees or any persons that they should by will appoint and that "the bequest regarding the professions should then come into operation."

The executor issued a summons to have the following questions inter alia determined:—"Whether the bequest subject to the life estate of the testator's widow was a valid charitable bequest or was void as offending against the rule against perpetuities?" And "if the said bequest was valid, to whom should it be paid, and whether the trusts of the same should be carried into effect without the settlement of a scheme, and, if not, to have the matter referred to Chambers for the settlement of a scheme?"

A testator by his will gave the following bequest: "After the death of my said wife I direct that the moneys then invested, stocks, and so forth, shall be regarded as a trust fund for enabling the sons and daughters and male descendants of my brothers to obtain professions, each suitable student to receive one hundred pounds yearly, for a reasonable time, from the dividends arising from said trust fund; and if a sufficient number of students shall not be forthcoming in any one year to exhaust the dividends the unexpended balance shall be invested and added to the trust fund . . . the trustees are to decide who are to be the beneficiaries when more suitable students offer than the dividends can meet."

Held that the trust was not charitable, and its validity could not be upheld even to a limited extent.

Cur. adv. vult.

Gavan Duffy J. :—

This is an interesting will, and I am called upon to decide whether or not the testator's bountiful provisions for the sons and daughters and male descendants of his brothers are valid, and, if not valid generally, whether or not they can be supported to a limited extent.

On the general question I shall assume, for the purposes of this case, that charitable purposes in law comprise those described, and those analogous to the purposes described, in the English Act of Elizabeth and the Act passed in the reign of Charles I for this country; both of those Acts have been repealed, though the Elizabethan classification has been kept alive by statute in England; I shall also assume, for the purposes of educational charity here, that there is, apart from certain religious questions, no substantial difference between the intent of the old English Act and that of the...