Mullen Junior v Mullen
| Jurisdiction | Ireland |
| Judge | Ms. Justice Finlay Geoghegan |
| Judgment Date | 14 April 2016 |
| Neutral Citation | [2016] IECA 107 |
| Docket Number | Appeal No. 2014/ 1455 |
| Court | Court of Appeal (Ireland) |
| Date | 14 April 2016 |
[2016] IECA 107
THE COURT OF APPEAL
CIVIL
Finlay Geoghegan J.
Appeal No. 2014/ 1455
Finlay Geoghegan J.
Peart J.
Irvine J.
IN THE MATTER OF THE WILL OF ELIZABETH (OTHERWISE BETSY) MULLEN, DECEASED, LATE OF FAHY, CLIFDEN, CO. GALWAY
Wills and probate ? Bequests ? Subjective meaning ? Appellant seeking to appeal against the construction of a bequest ? Whether respondent established that he subjectively required the plot for the purpose of using same as a garden
Facts: The appellant/defendant, Mr Mullen, is the son and executor of the will of the late Mrs Mullen who died on the 24th May, 2012, having executed her last will and testament on the 19th July, 2004. The respondent/plaintiff, Mr Mullen Jr, is a grandson of the deceased and a nephew of the appellant. The appellant appealed to the Court of Appeal against the construction of a bequest in the will to the plaintiff in the judgment of the High Court (Cregan J) of the 31st July, 2014, and declaration granted in the order of the 15th October, 2014, pursuant to the said judgment. The bequest in dispute was: ?I also give, devise and bequeath to James Mullen Junior, son of my son John, a small plot or piece of land of not more than half an acre to make up the site of his proposed new house should he require same?. The defendant contended that the words used by the testatrix in the disputed bequest have a different meaning to the construction placed on them by the trial judge. The defendant submitted that the intention of the testator from the words used was to bequeath a small piece of land should the plaintiff require same for the proposed construction of a house. He submitted that the purpose was identified by the testator as being ?to make up the site of his proposed new house? which he contended means the site required the construction of a house. He submitted that as the house had been built the plaintiff could not be considered as of the date of death to require the plot for that purpose. The plaintiff submitted that the trial judge was correct in construing the phrase ?should he require same? as having a subjective meaning. He further submitted that the trial judge was correct in finding that the word ?site? as used by the testatrix may include more than the foot print of a dwelling house constructed thereon and may include a garden. He referred to the background fact that the site already owned by the plaintiff was 1.2 acres and the additional plot bequeathed was to measure up to half an acre; each of these of themselves it was submitted exceed the probable footprint of a house. The plaintiff also relied upon the initial words used in the bequest ?I also give, devise and bequeath to?? as evidencing a clear intention to make a bequest to the plaintiff of a small plot or piece of land which was then described as being ?of not more than half an acre to make up the site of his proposed new house? subject only to the condition ?should he require same?. It was submitted that it was unnecessary to consider whether the condition by which the devise was to be limited was a condition precedent or subsequent as it had clearly been fulfilled by the plaintiff subsequent to the death of the testatrix.
Held by Finlay Geoghegan J that, having applied Re Rafter: Thornton v Timlin [2012] IEHC 239, the use of the term ?the site? by the testatrix was not confined to the footprint of a constructed site but included the immediately adjacent amenity land such as a garden. Further, Finlay Geoghegan J held that the words ?should?he?require same? clearly indicated that it was the plaintiff?s subjective assessment as to whether he required the plot for the purpose of the site of his new house in the sense already indicated that was relevant. Finlay Geoghegan J held that the trial judge was correct on the evidence before him that the plaintiff had established that he did subjectively require the plot for the purpose of using same as a garden to make up the site of his new house.
Finlay Geoghegan J held that there would be an order dismissing the appeal save in relation to a variation in the terms of the declaration in the High Court order of the 15th October, 2014.
Appeal dismissed.
The appellant is the son and executor of the will of the late Elizabeth (otherwise Betsy) Mullen who died on the 24th May, 2012, having executed her last will and testament on the 19th July, 2004. The respondent is a grandson of the deceased and a nephew of the appellant.
The appeal is against the construction of a bequest in the will to the plaintiff in the judgment of the High Court (Cregan J.) of the 31st July, 2014, and declaration granted in the order of the 15th October, 2014, pursuant to the said judgment.
The bequest in dispute is: ?I also give, devise and bequeath to James Mullen Junior, son of my son John, a small plot or piece of land of not more than half an acre to make up the site of his proposed new house should he require same?.
The principles applicable to the construction of the will are not in dispute. They were as set out by Laffoy J. in Re. Rafter :Thornton v Timlin [2012] IEHC 239 (Unreported, High Court, Laffoy J., dated 13th June, 2012), in reliance upon the guidance given by Lowry L.C.J. in Heron v. Ulster Bank Limited [1974] NI 44. They were set out by the trial judge at para. 12 of his judgment:-
?12. Laffoy J. In Re Rafter [2012] IEHC 239 considered how the court seeks to construe a will and to give effect to the intention of the testator and referred to the principles set out by Lowry LCJ in Heron v. Ulster Bank Limited as follows at para. 14:-
?The primary duty of the Court in construing a will is to ascertain and give effect to the intention of the testator. In recent years the High Court in this jurisdiction has adopted the guidance on the construction of wills generally given by Lowry LCJ in Heron v. Ulster Bank Ltd. [1974] N.J. 44, as appears from Howell v. Howell [1992] 1 I.R. 290 (Carroll J.), Corrigan v. Corrigan [2007] IEHC 367 (McGovern J.), and, most recently, O'Donohue v. O'Donohue [2011] IEHC 511 (Gilligan J.). Lowry LJC stated as follows:-
?I consider that, having read the whole will, one may with advantage adopt the following procedure:
1. Read the immediately relevant portion of the will as a piece of English and decide, if possible, what it means.
2. Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole, or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
3. If the ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
4. One may at this stage have resort to rules of construction, where applicable, and aids, such as the presumption of early vesting and the presumption against intestacy and in favour of equality.
5. Then see whether any rule of law prevents a particular interpretation from being adopted.
6. Finally, and, I suggest, not until the disputed passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar words, rarely as binding precedents, since it has been well said that ?no will has a twin brother? .??
In addition ss. 89, 90 and 99 of the Succession Act 1965, are relevant and provide:-
?89. Every will shall, with reference to all estate comprised in the will and every devise or bequest contained in it, be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.
90. Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will.
99. If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which the devise or bequest will be operative shall be preferred.?
The will provides as follows:-
?This is the last will and testament of me, Elizabeth Mullen (otherwise Betsy Mullen) of Fahy, Clifden, County Galway. I revoke all former wills and testamentary dispositions heretofore made by me
I appoint my son James Mullen to be executor of this my will subject to the payment of my lawful debts funeral and testamentary expenses.
I give devise and bequeath as follows:
My house and garden at Fahy, Clifden to my three daughters,
Lily Kane of Dawros Letterfrack
Rita McNamara of Tullyvoheen, Clifden
And Margaret Pride of Letternoosh, Clifden
In equal shares.
The field opposite my house at Fahy, Clifden as to one half thereto to my son, Marty Mullen and as to the other half thereof to my son Thomas. They are each to have the half nearest to their respective houses.
To my executor and son James Mullen the land upon which his house stands at Fahy, Clifden together with the well and water supply servicing same which comes from adjoining lands and also I give devise and bequeath to him the lands running to the sea which he presently occupies.
I also give devise and bequeath to my son, James Mullen the site of the house my late husband James Mullen senior was born in which is situated at Fahy, Clifden and is half way between the Low Road and the Sky Road.
I also give, devise and bequeath to James Mullen Junior, son of my son John, a small plot or piece of land of not more...
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