Morrison v M'Ferran

• Jurisdiction: Ireland
• Judgment Date: 06 February 1901
• Docket Number: (1900. No. 668.)
• Date: 06 February 1901
• Court: King's Bench Division (Ireland)

MORRISON

and

M'FERRAN.

(1900. No. 668.)

Chancery Division

Will — Construction — Document found with will — Secret trust — Beneficial gift or trust — Husband and wife — Advancement — Presumption — Rebutting evidence — Estoppel.

Briggs v. PennyUNK 3 De Q. & Sm. 525; 3 M. & G. 546.

Clarke v. HiltonELR L. R. 2 Eq. 810.

Croome v. CroomeUNK 59 I. T. R. 582.

Dawson v. Clarke 18 Ves. 247.

Downing's EstateUNK 60 L. T. R. 140.

George v. GroseELR [1900] 1 Ch. 84.

Hughes v. Evans 13 Simon, 496.

In King's EstateUNK 21 L. R. Ir. 273.

In re BoyesELR 26 Ch. D. 531.

Irvine v. SullivanELR L. R. 8 Eq. 673.

Johnson v. BallENR 5 De G. & Sm. 85.

King v. DenisonENR 1 V. & B. 260.

M'Cormick v. Grogan L. R> 4 H. L. 82.

Moos v. CooperENR 1 J. & H. 352.

Mullen v. BowmanENR 1 Coll. 197.

Re FleetwoodELR 15 Ch. D. 594

Riordan v. Banon Ir. Rep. 10 Eq. 469.

Scott v. BrownriggUNK 9 L. R. Ir. 246.

Sherratt v. BentleyENR 2 My. & K. 149.

Singleton v. TomlinsonELR 3 App. Cas. 404.

Sweeting v. SweetingUNK 3 N. R. 240.

Talbot v. Cody I R. l0 Eq. 138.

Tucker v. KayessENR 4 K. & J. 339.

Williams v. Roberts 27 L. J.Ch.177.

Williams v. Roberts 4 Jurist (N. S.) 18.

Wood v. CoxENR 2 My. & Cr. 684.

360 THE IRISH REPORTS. [1901. Appeal. 1901. WAR SECRETARY V. STITDDERT. than if the case were tried before a jury, with the incompleteness, as pointed out by my colleagues, that would be entailed by that course. Solicitors for the plaintiff : S. 8; R. C. Walker. Solicitor for Charles W. Studdert : F. G. Herin. Solicitor for Thomas Studdert and J. W. Gregg : Denroche. Solicitor for John A. Studdert : J. B. Molony. Solicitor for John Widger : Dunford. R. D. M. (1900. No. 668.) Jan. 25, 26. Feb. 6. bill—Construction—Document found with will—Secret trust—Beneficial gift or trust—Husband and wife—Advancement—Presumption—Rebutting evidence—.Estoppel. A testator bequeathed all his real and personal estate " for the use of my wife M., her heirs, executors, or administrators respectively upon trust that she my wife M. . .. shall thereout in the first place pay my funeral expenses and debts (if any), and in the next place my testamentary expenses and debts, and in the next place do all things I have requested of her at my decease. I appoint my wife M. to be one of my executors or executrix and administrator of this my will." Then followed a proper attestation clause. And then testator appointed C. " as one of my executors." Probate was granted to the widow M., the other executor having renounced. There was no real estate. At the date of testator's death £600 bonds (valued at £667) were standing in the names of the testator and his wife, representing stock mainly purchased by the testator out of his own money, and were stated in an affidavit made by her as executrix for purposes of probate to be part of the assets of her deceased husband, the net value of which was £991. In a docuÂment found with the will after the death of testator these £600 bonds were mentioned by testator as his property, and the document stated that it was drawn up in the presence of his wife M., she agreeing to pay the sums mentioned in it to certain named persons and the treasurers of certain charitable organizations. These gifts would have exhausted the assets. This document was signed by testator. It was signed by M. without knowing the contents thereof, though at the time she knew it had something to do with the disposition of testator's property. Testator at the time of signing told M. R. M. to pay four sums of money to four persons (whose names and the sums 1901. directed to be paid to each, respectively, were mentioned in the document of MORRISON 1899), and she agreed to do so. These sums amounted in all to £120. No v. other request as to disposition of the property was made to M. The document was signed by C. as witness. Held, 1. That under the circumstances of the case the £600 bonds belonged to the widow M. by survivorship, the presumption of advancement not having been rebutted. 2. That under the provisions of the will M. took a beneficial interest in all the personal estate of the testator, subject to the payment of debts, etc., and subject to a secret trust for the payment of the four sums she agreed to pay when so requested by testator. By his will, dated 17th August, 1893, Robert M'Ferran proÂvided as follows :—" I leave and bequeath all my real and personal estate of every kind and description of or to what I shall at my death be seized possessed or entitled unto for the use of my wife Margaret M`Ferran her heirs executors or administrators respectively upon trust that she my wife Margaret M'Ferran or the survivors of her or her heirs executors or administrators respectively of such survivors therein his or her assigns shall thereout in the first place pay my funeral expenses and debts if any and in the next place my testamentary expenses and debts and in the next place do all things I have requested of her at my decease. I appoint my wife Margaret MTerran to be one of my executors or executrix or administrator of this my will." There then followed a proper attestation clause, and after it there was this additional clause :—" I appoint John Cameron, Carrickfergus, as one of my executors." Robert M'Ferran died on 30th March, 1900, and probate of his will was, on 16th May of the same year, granted to his widow, Margaret MTerran, John Cameron, the other executor named in the will, having renounced .The testator left no children surviving him. The gross value of the personal estate, as stated in the affidavit made by Mrs. M'Ferran for the purposes of probate, amounted to the sum of £1008 4s. 7d., and the net value to the sum of £991 14s. 7d. This included £600 bonds of the Belfast Water Commissioners, standing in their books in the names of the testator and Margaret M'Ferran. A few days after the death of 1901—VOL. I. 2 F 362 THE IRISH REPORTS. [1901. M. R. the testator John Cameron opened a safe which had belonged to 1901. the testator in the presence of Mrs. MTerran, and found therein the will and another document dated 18th December, 1899, which v. isi,FERvaN. was signed by the testator and Mrs. KFerran, and was witnessed by John Cameron himself. According to the statement of John Cameron the deceased asked him to witness the signing of the document, and informed him at the time that he intended it should form part of the disposition of his estate. The document was as follows :— WHITEHEA.D, "18th December, 1899. " Cash in Water Commissioners' hands, £600 in bonds at 3i per cent., in the names of Robert M'Ferran and Margaret M'Ferran, say £660 (or survivor), insurance on my life, £200 with bonuses. " This draft was drawn on 18th December, 1899, in the presence of my wife, Margaret M'Ferran, of David Gillespie, and John Cameron, my wife agreeing at my death or as soon as possible or convenient for her to have carried out, and paying the following sums mentioned in this draft, namely, to the following persons named by me :—Annie M'Ferran, widow of my late brother James, £50; Lizzie M'Ferran, daughter of Anne M'Ferran, £50; Rachel Gordon, £10."...