Murphy v Murphy

• Jurisdiction: Ireland
• Judgment Date: 01 October 1964
• Date: 01 October 1964
• Docket Number: (1961. No. 76 P.)
• Court: High Court

(1961. No. 76 P.)

Murphy v. Murphy.

In the Matter of the Estate of Michael Murphy

Deceased.

BRENDAN MURPHY

Plaintiff

and

PATRICK MURPHY and JAMES J. BYRNE and by Order SEÁN eán MURPHY

Will - Construction - Freehold lands - Life estate for widow, then "for my son"S. "absolutely provided he has attained the age of twenty-five" - Gift over"For my son" M. "provided he attains the said age of twenty-five years" - Residuary clause - Death of testator in 1935 - Death of widow in 1937 -S. attaining twenty-five in 1956 - Destination of income between 1937 and1956 - Whether S. took vested or contingent estate - Rule in Edwards v.Hammond and Phipps v. Ackers.

Summary Summons brought by Brendan Murphy, a beneficiary under the will, made on the 10th April, 1935, of Michael Murphy, Geoghanstown, Co. Kildare, to determine questions 1, whether under the terms of the said will of Michael Murphy, deceased, the testator's son, Seán Murphy, took a vested estate in a freehold property at Geoghanstown, on the death of his mother on the 1st November, 1937, or alternatively when he (Seán) attained the age of twenty-five, and 2, who was entitled to the income of the property arising between the said dates of the 1st November, 1937, and the 13th May, 1956?

The facts appear fully in the judgment of Kenny J., post.

M.M. made his will in 1935. He devised his freehold farm in trust for his wife for her life and after her death in trust "for my son" S. "absolutely provided he has attained the age of twenty-five and in the event of my said son" S."predeceasing my said wife or dying before reaching the said age of twenty-five years then in trust for my son" M. "provided he attains the said age of twenty-five years." The will contained a residuary clause. M.M. died on the 16th April, 1935; his widow died on the 1st November, 1937. S. attained twenty-five years on the 13th May, 1956. On questions arising on the construction of the said will 1, as to whether S. took a vested estate on the death of the testator's widow on the 1st November, 1937, or on his attaining twenty-five on the 13th May, 1956, and 2, as to the destination of the income arising from the farm between the said dates, it was

Held by Kenny J. 1, that the property passed to S. on the 13th May, 1956, when he attained the age of twenty-five.

2, That the income of the farm arising between the 1st November, 1937, and the 13th May, 1956, was held by the trustees on the trusts declared by the residuary clause of the will.

Edwards v. Hammond (1683) 3 Lev. 132; Bromfield v. Crowder (1805) 1 Bos. and P. N. R. 313; Randoll v. Doe d. Roake (1817) 5 Dow 202; Phippsv. Ackers 9 Cl. & Fin. 583; Pearks v. Moseley5 App. Cas. 714.; McGredy v.Inland Revenue Commissioners[1951] N. I. 155 distinguished.

Cur. adv. vult.

Kenny J. :—

Michael Murphy, of Geoghanstown, County Kildare, a farmer, made his will on the 10th April, 1935. He appointed the defendants, Patrick Murphy and James J. Byrne, to be his executors and trustees and then provided:—

"I leave my holding at Geoghanstown aforesaid to my said trustees in trust for my wife for life or until such time as she may remarry and after her death or on her remarriage in trust for my son Seán absolutely provided he has attained the age of twenty-five and in the event of my said son Seán predeceasing my said wife or dying before reaching the said age of twenty-five years then in trust for my son Michael provided he attains the said age of twenty-five years. I charge the said lands with the payment to each of my sons Michael and Brendan of the sum of £300 said sums to be paid to them at such times as my said executors may in their absolute discretion deem fit. In the event of the said lands passing to my said son Michael then I charge same with the payment of the sum of £600 to my said son Brendan to be paid by my executors in manner aforesaid and in which event the said charge of £300 in favour of my said son Michael is to be determined. I also charge the said lands with the payment of the debt due by me to the Munster and Leinster Bank. All the rest residue and remainder of my property of every nature and description I leave to my said trustees to apply the income or proceeds thereof in paying the outgoings of said lands and the support and maintenance of my wife and children and the education...