Mullally v Walsh

• Jurisdiction: Ireland
• Judgment Date: 09 May 1879
• Date: 09 May 1879
• Court: Chancery Division (Ireland)

Appeal.

Before BALL, C., and DEASY and FITZ GIBBON, L.JJ.

MULLALLY

and

WALSH

Cambridge v. Rous 8 Ves. 12, 26.

Hodgson v. Jex 2 Ch. Div. 122.

Chapman v. Chapman 4 Ch. Div. 800.

Kendall v. KendallENR 4 Russ. 360.

Gover v. DavisENR 29 Beav. 222.

King v. George 4 Ch. Div. 435; affirmed on appeal, 5 Ch. Div. 627.

Smyth v. Smyth 8 Ch. Div. 561.

Attree v. AttreeELR L. R. 11 Eq. 280.

Newman v. NewmanENR 26 Beav. 220.

Barnaby v. TassellELR L. R. 11 Eq. 363.

Kendall v. KendallENR 4 Russ. 370.

Slingsby v. GraingerENR 7 H. L. C. 273.

Lowe v. ThomasENR Kay, 369; 5 D. M. & G. 315.

Dean v. GibsonELR L. R. 3 Eq. 713.

Hodgson v. Jex 2 Ch. Div. 123.

King v. George 5 Ch. Div. 627.

Smyth v. Smyth 8 Ch. Div. 567.

Will — Construction — Residuary gift — "The remaining part of my whole property, both in stock, household furniture, cash, &c., &c." — Chattels real included.

WARREN, J. :- The first question in this case is the construction of the clause, " This codicil only to take effect in the event of my surviving my eldest son as aforesaid ; and if I do not survive, then this codicil to be destroyed, and not to form part of the probate ; and I conÂfirm my will in all other respects." I hold it clear that this is a conditional codicil, and therefore as a will, as distinguished from a codicil, would not be admitted to probate. Suppose there was no other codicil, and it turned out that the original will was not duly executed, if this codicil was not admitted to probate the whole of the testamentary dispositions would fail. But the codicil was a complete testamentary act upon its execution, and a confirmation of the will, whether the execution of the will was valid or invalid. The case would come under the words of the rule in Da Silva's Case, except for the direction that the codicil should not be proved. This direction, in my opinion, is wholly immaterial, and upon the authority and principle of .Da Silva's Case the codicil must be adÂmitted to probate. Solicitors : Messrs. William Fry Son. MULTALLY v. WALSH (1). Will-Construction-Residuary gift-" The remaining part of my whole proÂperty, both in stock, household furniture, cash, 4c., 4 c."-Chattels real included. A testator, having freehold and chattels real, and personal property conÂsisting of cash, farming stock, furniture, and Government Stock, bequeathed to M. W., his niece, £200, to be paid to her by his wife or by his executors, and bequeathed to his wife " the remaining part of my whole property, both in stock, household furniture, cash, &c., &c." Held (reversing the decision of Sullivan, M. R.), that the chattels real [with which alone the suit was conversant] passed by the will. (1) Before BALL, C., and DEASY and. FITZ GIBBON, L.JJ. VOL. III.] CHANCERY DIVISION. 245 APPEAL by the Defendants, pursuant to leave reserved by order Appeal. of the 28th of June, 1878, from a decree of the Master of the Rolls, _ 1879. dated the 20th of March, 1872. The notice of appeal sought to MULLALLY Wes, have the bill dismissed, or that His Honor's decree might be W LISH. reversed or varied so far as it directed certain inquiries and acÂcounts. The hearing below is reported, I. R. 6 Eq. 227, and the facts are also fully stated in the judgment, post. When the appeal was about to be opened by Mr. Jellett, Q. C., Mr. Ryland objected that under 0. LVIII., R. 11, the leave of this Court should have been obtained to bring the appeal, and that the order of the 28th of June, 1878, having been made by the Court of first instance, was not sufficient. He also referred to section 25 of the Judicature Act, as showing that Rule 11 applied to the present case. THEIR LORDSHIPS having ruled in favour of the objection, and Mr. .Ryland dispensing with notice of motion, Mr. Jellett formally moved for leave to appeal, and Mr. Ryland opposed the appliÂcation. THE COURT gave leave as sought, THE LORD CHANCELLOR observing that the circumstances were very special, and not to be taken as a precedent. The appeal was then proceeded with. Mr. Jellett, Q. C., and The Mae Dermot, Q. C. (with them Mr. M. Kavanagh), for the Appellants : The testator evidently considered the beneficial estate given to his widow commensurate with the legal estate given to his execuÂtors. As to the expression " my whole property both in stock [&c.]," in Cambridge v. Rous (1), the words " all the rest and residue of my property and effects, whether in money, or in the public funds, or other securities of any sort or kind whatsoever," were held to conÂstitute a general residuary bequest. " &c. &c.," must mean either everything else, i. e. the residue, or everything else ejusdem generis. [DEASY, L. J. The testator could not have had anything else of the same kind beyond what he enumerated.] In Hodgson v. Jex (2), and other effects," following after a gift of " plate, linen, furniÂture," was held not to be restricted to articles ejusdem genera's, and (1) 8 Ves. 12, 26. (2) 2 Ch. Div. 122. 246 LAW REPORTS (IRELAND). [L. R. Appeal. to include money. So in Chapman v. Chapman (1) freeholds were 1879* held to pass under " &c.," following a gift of " all my money, muLEALLY cattle, farming implements ; " and in Kendall v. Kendall (2) stock v. WALSH. and money passed under " all moneys, goods, chattels, clothing, &c." [DEASY, L. J., " &o." e., et ecetera, means literally, " and the rest ".] In Gover v. Davis (3) Sir John Romilly held that the whole residue, including a reversionary interest in the produce of the sale and conversion of realty, passed under the words " the whole of my property and effects, that is to say, my box, clothes, bedding, &c., &c." But even if the ejusdem,"generis doctrine...