Mullaly v Walsh

• Jurisdiction: Ireland
• Judgment Date: 26 January 1872
• Date: 26 January 1872
• Court: Queen's Bench Division (Ireland)

Q. Bench.

Before WHITESIDE, C. J., and O'BRIEN and FITZGERALD, JJ.

MULLALY

and

WALSH.

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

Dobson v. BownessELR L. R. 5 Eq. 404.

Sanderson v. DobsonENRENR 1 Ex. 141; S. C. 7 C. B. 81.

O'Toole v. BrowneENR 3 E. & B. 572.

Re Greenwich Hospital Improvement ActENR 20 Beav. 458.

Wilce v. WilceENR 7 Bing. 664.

Roberts v. Sampson 1 Ir. Jur. N. S. 364.

Fitzgerald v. Westropp 3 Ir. Jur. N. S. 395.

Rex v. Inhabitants of Harborne 2 A. & E. 540.

Re Phene's TrustsELR L. R. 5 Ch. App. 139.

Timewell v. PerkinsENR 2 Atk. 102.

Doe v. DeakinENR 3 Car. & Payne, 402; S. C. sub nom. Doe v. Wolley, 8 B. & C. 22.

In re Webb I. R. 5 Eq. 235.

In re Phene's TrustsELR L. R. 5 Ch. App. 139.

Will Construction "Property" Residue confined to Personal Estate Presumption of death without issue.

MULLALY v. WALSH (1). Will-Construction-" .Property"-Residue confined to Personal Estate- Presumption of death without issue. A testator having both freeholds and chattels real, and also personal estate, consisting of cash, farming stock, furniture, and Government Stock, bequeathed 200 to his niece, and the " remaining part of his whole property, both in stock, household furniture, cash, &c., &c.," to his wife :-Held, that the freeholds and chattels real did not pass by the will. A married woman emigrated, along with her husband and seven children, to America, in 1847, where she died in 1866, and none of the children had been heard of for ten years preceding the trial :-Held, that it could not be preÂÂsumed that all the seven children had died without issue. EJECTMENT ON THE TITLE, to recover certain portions of the lands of Ballywater. At the trial, before George, J., at the Clonmel Summer Assizes, 1871, it appeared that John Doherty, being seised of the lands in question for three lives, two of which were still subsisting, and being also possessed of personal estate, made his will as follows :- " I will and bequeath unto Margaret White, my niece, the sum of 200 sterling, to be paid unto her by my lawful wife, Anastatia Doherty, or my exeÂÂcutors ; I also will and bequeath unto my lawful wife, Anastatia Doherty, the remaining part of my whole property, both in stock, household furniture, and cash, &c., &c. : I also nominate and appoint the Rev. M. Walsh, P. P., of RosÂÂbercon, and John Walsh, of Harristown, farmer, to be my executors of this, my last will and testament." John Doherty died, leaving surviving him his wife, Anastatia (who, upon his death, went into possession of the farm), and five sisters-namely, Mary Sullivan, Alice Mullaly, Bridget -White, Margaret Mockler, and Judith Hearn, his coheiresses. Anastatia Doherty, the widow, died in 1870, having by her will purported to devise the lands of Ballywater to the Defendant. Margaret Mockler, one of the co-heiresses, died without issue ; Judith Hearn, another of the co-heiresses, died leaving one son, who died shortly (1) Before WHITESIDE, C. J., and O'BRIEN and FazeRRALE,JJ. VoL. VI.] COMMON LAW SERIES. after his mother, unmarried and intestate, but leaving his father surviving. Mary Sullivan, another of the co-heiresses, had seven children, and she and her children emigrated, in 1847, to America, where she died, in 1866, and none of her children had been heard of for ten years, but it was not proved they were dead. Bridget White, another of the co-heiresses, was dead, leaving children, some of whom were still living ; and Alice Mullaly was dead, leaving the Plaintiff her eldest son and heir-at-law, who brought the ejectÂÂment, contending that, inasmuch as Margaret Mockler and Judith Hearn were admittedly dead, and there had been a failure of issue of both of them, and as Mary Sullivan should also be preÂÂsumed to have died without issue, he was entitled to one moiety of the lands of Ballywater, as heir-at-law of John Doherty, who, it was contended, had died intestate as to his realty ; on the other hand, the Defendant contended that Ballywater had been devised, by the will of John Doherty, to his wife Anastatia, and claimed as devisee under her will. The learned Judge, by consent of the...