Morrow v M'Conville

JurisdictionIreland
Judgment Date18 April 1883
Date18 April 1883
CourtChancery Division (Ireland)

V. C.

MORROW
and
M'CONVILLE.

Dillon v. Reilly I. R. 10 Eq. 152.

Boyle v. Boyle I. R. 11 Eq. 433.

Stewart v. Green I. R. 5 Eq. 470.

Delany's EstateUNK 9 L. R. Ir. 226.

Cocks v. MannersELR L. R. 12 Eq. 574.

Carne v. LongUNK 2 D. F. & J. 75.

Thomson v. ShakspeareUNK 1 D. F. & J. 399.

Elton v. ShephardENR 1 Br. Ch. Cas. 532.

Attorney-General v. Drummond 2 H. L. Cas. 837.

In re Delany's Estate 9 L. R. I. 226.

Carne v. Long 2 De. G. F. & J. 75.

Delany's Estate 9 L. R. I. 226.

Henrion v. Bonham O'Leary on Char. 90.

Carbery v. Cox 3 Ir. Ch. R. 231.

Hogan v. ByrneUNK 13 Ir. C. L. R. 166.

Duddy v. Gresham 2 L. R. I. 1.

Stewart v. Green I. R. 5 Eq. 481.

Morice v. The Bishop of Durham 10 Ves. 521.

Copinger v. Crehane I. R. 11 Eq. 429.

Boyle v. Boyle Ibid. 433.

Legacies for charitable or religious purposes Convent Masses Perpetuity Completion of church Discretionary power of executors "Moiety" Will Construction.

MORROW v. M'CONVILLE. Legacies for charitable or religious purposes-Convent-Masses-PerpetuityÂÂCompletion of church - Discretionary power of executors -" Moiety "- Will-Construction. A testator bequeathed his property to his wife for life ; and after her death he empowered his executors to let his property ; and as to the profit-rent, he directed " one moiety " to be applied to the use and benefit of the Roman Catholic convent of St. Joseph, Lurgan, and another " moiety " to be applied to the completion of the Roman Catholic church of St. Peter, Lurgan, and anoÂÂther " moiety " (sic) to be given to the Roman Catholic clergy of the Lurgan church, to say masses for the repose of his soul and the soul of his wife, " the several moieties to be arranged by the executors." He appointed M. and C. his acting executors, with power to appoint " successors " from time to time during the term of his lease, which he described as being for nine hundred and ninety-nine years : Held, first, applying the principle of Stewart v. Green (I. R. 5 Eq. 470), that the gift to the convent could not be sustained as a charitable gift ; and further, upon the construction of the will, and distinguishing In re Delany's Estate (9 L. R. Ir. 226, 236), that it could not be construed as a gift to indiviÂÂdual members of the convent. The Court also declined to direct an inquiry as to the objects and purposes of the convent. The authorities upon gifts to reliÂÂgious communities reviewed and commented on. Held, secondly, that the word " moiety," as used in the will, meant equal part or share, and that by directing " the several moieties to be arranged by the executors," the testator meant that his executors should only have a power of carrying out conveniently an equal division of the profit-rent,' and arrangÂÂing the payment of the shares to the objects intended ; that, therefore, the gift for the completion of the church, which was in other respects a good charitable gift, was not open to objection on the ground of uncertainty. Held, thirdly, that the gift for masses, not being a charitable gift, was void, as an attempt to create a perpetuity. THIS case came before the Court upon a special inquiry directed as to who were the persons entitled to the residue of the personal estate of Edward Murray. Edward Murray, whose estate was being administered by summons at Chambers, had made a will dated the 16th April, 1868, in the following terms:ÂÂ" The last will and testament of Edward Murray of Lurgan, in the county of Armagh and parish of Shankhill, showeth that Vor,. XI.] CHANCERY DIVISION. 237 I am possessed of property in the town of Lurgan known by Y. C. the name of Murray's-place. At my demise I bequeath to my 1883. wife Mary Murray all the property which I possess, to her for her MORROW use and benefit during the term of her natural life, to be enjoyed M LLE. by her under the control of my executors ; and that no description of that property shall be removed or otherwise made away with ; and she will not be at liberty to marry ; and if she does so marry she is to lose all control and. benefit arising out of said property. I will and bequeath to my two daughters, whose maiden names were Elizabeth Murray and Marian Murray, the sum of 100 sterÂÂling each, to be paid to them twelve months after my decease : they both now reside in Midlothianshire, Scotland. I will and beÂÂqueath to my sister Mary Anne Redan, now in North America, 100 sterling, to be paid at the death of my wife Mary Murray ; and to my wife's niece Anne Swaney, now in Australia, I leave the sum of 100 sterling, to be paid at the death of my wife Mary Murray ; and after the death of my wife I empower my executors to let my property to the highest bidder, and the profit-rent arising therefrom to be applied to the use and benefit of the Roman Catholic convent of St. Joseph's, Lurgan, one moiety, and another moiety to be applied to the completion of the Roman Catholic church of St. Peter's, Lurgan, and another moiety to be given to the Roman Catholic clergy of the Lurgan church to say masses for the repose of my soul and the soul of my wife Mary Murray, and the several moieties to be arranged by my executors. And I appoint the Rev. John M'Conville of Lurgan, and Robert Campbell of Kinnegor, my acting and transacting executors to this my last will and testament, with power to appoint successors from time to time during the term of my lease, which is for 999 years." Edward Murray died on the 9th April, 1869 ; and his will was proved on the 20th July, 1869, by Robert Campbell, one of the executors. Campbell subsequently died, and probate was granted to M'Conville, the other executor. The questions in dispute arose out of the charitable legacies. Hr. H. Fitz Gibbon, Q. C., for the Plaintiff : These legacies are void. The bequest for masses violates the rule against perpetuities, and comes directly under the 238 LAW REPORTS (IRELAND). [L. R. L V. C. authority of Dillon v. Reilly (1). The gift for the church is 1883. also void : there is a trust that a share of the profit-rent should. Monnow be applied till the church was completed, and after that it is to cease. The last clause of the will would seem to suggest that McCONi LLE. the trust was to continue for 999 years. By the terms of the will, a moiety of the profit-rent is to be applied to each of three several purposes. Construing the word " moiety " as " portion," so as to give an intelligible meaning to what would otherwise be insensible, a discretion is vested in the executors to apply the profit-rent to each of the three objects in such proportions as they please ; and therefore, even supposing the completion of the church to be a purpose strictly charitable, the trust for this purpose is part of a trust for other purposes, as to which it cannot be sustained; and the allocation of the proportions being left to the uncontrolled discretion of the executors, all the gifts must fail : Boyle v. Boyle (2). The gift to the convent is void. There is nothing on the face of the will to show that it was intended for a charitable purpose in the legal sense of the term ; nor is there extrinsic evidence offered here of the purposes to which it would be applicable by the community, even if such evidence could be admitted. Therefore this legacy cannot be supported as a valid charitable gift : Stewart v. Green (3). There is no resemblance between this legacy and the gift in Delany's Estate (4) ; because in that case the gift was to indiviÂÂduals, the Sisters of Mercy at Bantry ; here it is to the convent, that is to the community. Cocks v. Manners (5) may be cited ; but there the gift was upheld by Wickens, V.C., on the ground that it was ordered to be paid to the superioress for the time being. It is impossible to construe the legacy in this case as one for the benefit of the individual members of the community, and as vesting absolutely in them, or one of them, at a given time. It was not to take effect until the death of the testator's widow. At that time the individual members of the convent might have been completely changed. The intention of the testator was to create a continuing trust of part of the profit-rent of the leasehold, during the whole term, for the permanent (1) I. R. 10 Eq. 152. (4) 9 L. R. Ir. 226. (2) I. R. 11 Eq. 433. (5) L. R. 12 Eq. 5'74. (3) I. R. 5 Eq. 470. VOL. XI.] CHANCERY DIVISION. 239 endowment of the community ; and as the gift cannot be sustained Y. C. as a charitable one it must fail : first, because as pointed out in 1883. Stewart v. Green (1), such a community has no corporate existence; Moscow and. secondly, as tending to a perpetuity : Carne v. Long (2), and m'Con;ILLE. Thomson v. Shakspeare (3). Mr. P. F. White, Q. C., and Mr. R. D. Murray, for the Rev. James M'Kenna, representing the Roman Catholic charities : All these legacies are capable of being supported. 1. The gift for masses is not rendered. void by the rule against perpe tuities. There are no words necessarily involving a continuance of the trust ; the property is to be given at once, and not to be doled out during a term of years. The power...

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