Mulhern v Brennan

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice McCracken
• Judgment Date: 01 January 1999
• Neutral Citation: [1998] IEHC 81
• Docket Number: [1997 No. 290Sp]
• Date: 01 January 1999

MULHERN v. BRENNAN

IN THE MATTER OF THE ESTATE OF JOHN O'DONOGHOE (DECEASED)

BETWEEN

SYLVESTER MULHERN

PLAINTIFF

AND

ELLEN TERESA BRENNAN

DEFENDANT

[1998] IEHC 81

No. 290Sp/1997

THE HIGH COURT

Synopsis

Succession

Will; construction; testamentary disposition; interpretation of phrase "dying without issue"; each of the four sons died without issue after the death of the testator; whether the gifts only took effect where the beneficiary died without issue during the lifetime of the testator; consideration of whether there was a contingency; presumption against intestacy considered Held: Last son takes absolutely; gifts took effect upon the death of the beneficiaries without issue at any time, whether before or after the death of the testator (High Court: McCracken J.26/05/1998) - [1999] 3 IR 528

Mulhern v. Brennan

Citations:

HALL, IN RE 1944 IR 54

WOODROOFE V WOODROOFE 1894 1 CH D 299

RICHARDSON, IN RE 1896 1 CH D 512

HARRISON, IN RE 1885 30 CH D 390

1 JUDGMENT of Mr. Justice McCracken delivered the 26th day of May 1998.

2 John O'Donoghue ("the Testator") died on 8th April, 1915. By his Will dated 28th April, 1911 he provided, in relation to the residue of his estate,:-

"All the rest residue and remainder of my estate and effects real and personal I will devise and bequeath to my four sons John Anthony O'Donoghue, James Frederick Caulfield O'Donoghue, David Geoffrey O'Donoghue and Peter Paul O'Donoghue share and share alike as tenants in common and in the event of any of my children dying without issue the surviving brothers or brother shall take his share original and accruing but in the event of his leaving issue such issue shall be entitled to the parent's share."

3 I have been asked to determine three issues arising on the construction of the Testator's Will. These are as follows:-

4 Does the phrase "dying without issue" which appears in the said residuary clause mean:-

5 i "(i) Dying during the lifetime of the deceased to the effect, in the events which have happened, that each of the said sons took absolutely a quarter share of the residue of the estate? or

6 (ii) Dying at any time to the effect that on the death without issue of each son his share passed to the then surviving brother, or brothers, and ultimately, on the death of the last surviving brother (the said John Anthony O'Donoghue) without issue that an intestacy arises? or

7 (iii) Dying at any time but to the effect that the defeasance provision in the said Will only applies for so long as there is a surviving brother?"

8 In the events that happened, the Testator's four sons all survived him, but ultimately all four of them died without issue. It appears from the terms of the Will probable that only one of the sons was of full age at the date of the Will. The primary rule which I must apply in construing the Will is that I must endeavour to ascertain the wishes of the Testator insofar as they are expressed in the words of the Will. If the words of the Will are clear, then the Court must give full effect to them in= their normal meaning, and it is not for the Court to attribute any intention to the Testator which is not expressed in the Will.

9 The first point which I have to consider is whether the phrase " dying without issue" refers to the death of the beneficiary during the lifetime of the Testator only, or whether it refers to his death without issue at anytime. There is a clear rule of construction that, unless the contrary be clearly indicated, a reference in a Will to the contingency of a person dying only refers to that person dying during the lifetime of the Testator, for otherwise it is not a contingency at all, but a certainty. See for example Re; Hall (1944) I.R. 54. In the present case, however, the event triggering a gift over is not simply the death of one of the Testator's sons, but his death without issue.

10 A number of authorities have been opened to me, but only two of them appear to me to be directly relevant. In Woodroofe -v- Woodroofe (1894) 1 Ch.D. 299 there was a very similar residuary gift to that in the present case. The residue of the property was to be divided among the Testator's four sons subject to the proviso " but if any of my said sons shall die without leaving lawful issue him surviving, my Will is that the share of such son shall go and be divided...