Motherway v Coghlan and Attorney General

• Jurisdiction: Ireland
• Judgment Date: 14 March 1963
• Date: 14 March 1963
• Court: Supreme Court

Supreme Court.

In re Coghlan, Deceased. Motherway v. Coghlan and the Attorney General

In the Matter of the Estate of Thomas Coghlan deceased. CORNELIUS J. MOTHERWAY

Plaintiff

and

JOHN COGHLAN and the ATTORNEY GENERAL

Defendants.

Will - Construction - Bequest - Condition subsequent - Condition as to marriage and residence - Whether such condition severable - Whether condition void for uncertainty.

Summary Summons.

The plaintiff, Cornelius J. Motherway, was the sole executor and trustee of the last will, dated the 17th August, 1945, of Thomas Coghlan, late of Rathclare, Buttevant, County Cork, a farmer, who died on the 12th November, 1953, and probate of his said will was granted to the plaintiff, on the 20th January, 1954. The testator in his will bequeathed inter alia his"farm and dwelling with all stock thereon and all contents to my said trustee upon trust for my nephew John Coghlan, son of my brother John, provided my said nephew shall marry (if he be not married at my death) and come to reside there within one year from the date of my death, and in the event of my said nephew not marrying and coming to live there as aforesaid, in trust to sell said farm and house and all stock and contents and apply the proceeds of such sale for the celebration of Masses for the repose of my soul and the souls of my late wife and my late brother David." John Coghlan, the nephew, challenged the condition as being void for uncertainty. He had not married and he had not gone to reside on the farm. The summons raised the following questions for decision:—

"1, Whether the entire condition or provision annexed to the devise and bequest to the plaintiff upon trust for the first-named defendant, John Coghlan, contained in the said will of the testator's farm and dwelling at Rathclare, Buttevant, in the County of Cork, with all the stock thereon and all contents, that the first-named defendant shall marry and come to reside then within one year from the date of the testator's death is void for uncertainty?

2, If the answer to question 1 is in the negative, whether that part of the condition or provision set out in question 1 obliging the first-named defendant to marry is void (a) for uncertainty; (b) as contrary to public policy?

3, If the answers to questions 2 (a) and 2 (b) are in the negative, does the said condition or provision obliging the first-named defendant to marry require him to marry within one year of the testator's death?

4, If the answer to question 1 is in the negative, whether that part of the condition or provision in the said will set out in para. 1 above which obliges the first-named defendant to come to reside on the testator's said farm and dwelling within one year from the date of the testator's death is void for uncertainty?

5, If the answer to question 1 is in the affirmative, does the plaintiff hold the said farm and dwelling with all stock thereon and all contents in trust for the first-named defendant?

6, If the answer to question 1 is in the negative and the answer to question 2 (a) or 2 (b) (or both) is in the affirmative and the answer to question 4 is in the negative, that is to say, if that part of the said condition or provision in question 1 which obliges the said defendant to come to reside on the testator's said farm and dwelling within one year from the date of the testator's death is valid, does the plaintiff hold the said farm and dwelling with all the stock thereon in trust for the first-named defendant?

7, If the answer to question 1 is in the negative and the answers to questions 2 (a) and 2 (b) are in the negative and the answer to question 4 is in the affirmative, that is to say, if that part of the said condition or provision which obliges the first-named defendant to marry is valid, and if that part of the condition or provision which obliged the first-named defendant to come to reside on the testator's farm and dwelling withon one year from the date of the testator's death is void, does the plaintiff hold the said farm and dwelling with all the stock thereon and all contents in trust for the first-named defendant, and if so, what is to be the duration of the said trust?"

Dixon J. answered the questions as follows:—

Question 1: The condition was not void in its entirety.

Question 2: The condition obliging the defendant to marry was not void.

Question 3: The said condition or provision contemplated the defendant's marrying within one year of the testator's death.

Question 4: The condition or provision which obliges the defendant to come and reside on the testator's farm within one year from the date of the testator's death was void for uncertainty.

Dixon J. did not consider it necessary to answer question 5 or question 6, and did not think it necessary to answer question 7 at the time of the hearing as the time within which the defendant was required to marry...