Nolan, Re; Hannon v Attorney-General [Supreme Court.]

• Jurisdiction: Ireland
• Judgment Date: 21 December 1939
• Date: 21 December 1939
• Court: Supreme Court

Supreme Court.

In re Nolan, Hannon v. Attorney-General.

In re NOLAN, Deceased, HANNON AND ANOTHER

and

THE ATTORNEY-GENERAL AND OTHERS

Will - Construction - Real estate devised for charitable purposes - Charitable bequests - Will made within three months of death - Charitable Donations and Bequests Act, 1844 (7 & 8 Vict. c. 97), s. 16 - "O'Hagan clause" -Mixed fund - Marshalling in favour of charities.

Construction Summons.

Catherine Matilda Nolan died on the 30th December, 1934. By her will, made on the 11th December, 1934, she bequeathed several pecuniary legacies to non-charitable beneficiaries and then dealt with her real estate as follows:—"And whereas my father, the late John McLaughlin, bequeathed to my sister, Anna Maria McLaughlin, and myself in equal shares his property in the town of Stradbally, Leix, as part of his residuary estate, now I give, devise and bequeath my share in the said property unto the Reverend Mother of the Presentation Convent, Stradbally, in the County of Leix, at the date of my death, to use the income or the proceeds of sale thereof, if sold, for religious purposes in connection with the convent and orphanage at Stradbally aforesaid." After making a number of charitable pecuniary bequests she gave the residue of her estate to her trustees upon trust to divide and pay one-seventh of the same to each of seven named persons for charitable purposes. The will then contained the following clause:—"If for any reason any charitable bequest made by this will shall be void or of no effect, then, in that event, I give the sum so bequeathed to the person or persons named in such bequest or bequests absolutely."

The estate of the testatrix consisted of pure personalty, a leasehold house in Rathmines, Dublin, which was sold for £806, and the real property in Stradbally already mentioned. At the date of the death of testatrix her sole next-of-kin and heiress-at-law was her sister Anna Maria McLaughlin, who had been taken under the care of the President of the High Court as a person of unsound mind, the Committee of whose estate was Mr. James Robinson.

The executors and trustees of the will issued a summons to have the will construed.

By order of the Court Sister Ignatius O'Sullivan, the Rev. Mother of the Presentation Convent, Stradbally; Sister Margaret Mary Tracey, Superioress of the Convent of St. Vincent de Paul, North William Street, Dublin; Mary Ita McGinty and Isabella Redington Roche were added as defendants and the two last-named were appointed to represent the residuary legatees other than the Convent of St. Vincent de Paul. The Rev. W. Byrne, P.P., Stradbally, was also added as a defendant and was appointed to represent the charitable legatees other than residuary legatees.

The questions for determination by the Court as set out in the summary summons were as follows:—

"1. (a) Whether the devise of the testatrix's moiety of certain real property in the town of Stradbally to the Reverend Mother of the Presentation Convent, Stradbally, is void by virtue of the statute 7 & 8 Vict. c. 97, s. 16;

(b) If so, whether the said property passed to the Reverend Mother of the said convent as her absolute property, or if not, to whom did it pass?

(c) Whether the gifts following, or any of them, are either wholly or partially void by virtue of the statute 7 & 8 Vict. c. 97, s. 16, viz.:—(1) £100 to the President of the Council of St. Vincent de Paul; (2) £50 to the Rev. Father Stephen Clune for Masses; (3) £25 to Father William Kane for Masses; (4) £25 to Father James Doyle for Masses; (5) £200 to the plaintiffs for the erection of a stained glass window; (6) £3 or such other sum as may be necessary to the plaintiffs to purchase a seat in the Church of the Holy Name, Beechwood Avenue, Dublin; (7) £100 to the Parish Priest at Stradbally for the poor of Stradbally; (8) £10 to the Parish Priest at Stradbally for Masses; (9) £100 to the Parish Priest at Myshall, Carlow, for the poor at Myshall; (10) £10 to the Parish Priest at Myshall for Masses; (11) one-seventh of the residue to the Superioress of the Sacred Heart Home, Drumcondra; (12) One-seventh of the residue to the Superioress of the Little Sisters of the Assumption, Upper Camden Street, Dublin; (13) one-seventh of the residue to the Sister Superior of the Convent of the Sisters of Charity of St. Vincent de Paul, North William Street, Dublin; (14) one-seventh of the residue to the Prioress of St. Joseph's Carmelite Convent, Ranelagh, Dublin; (15) one-seventh of the residue to the Mother Abbess of St. Clare's Convent, Harold's Cross, Dublin; (16) one-seventh of the residue to the President for the time being of the Council of the Charitable Society of St. Vincent de Paul; (17) one-seventh of the residue to the Trustees of the Catholic Institution for the Deaf and Dumb, Cabra, Dublin.

(d) If any of the last mentioned gifts are partially void, to what extent are same void and how are same to be apportioned between the real and chattel real and personal estate of the deceased?

(e) If any of the said last mentioned gifts are wholly void, do same devolve upon the donees thereof named in the said will as their absolute property, or if not, upon whom do same devolve?

(f) If any of the said last mentioned gifts are partially void, do the real and chattel real property thereby released devolve upon the said donees as their absolute property, or do same devolve upon the heir-at-law or next-of-kin of the deceased, or, if not, upon whom do they devolve?"

The defendants representing the residuary legatees appealed to the Supreme Court (1) against the order of Gavan

Duffy J. in so far as it declared that the residuary gifts numbered 11 to 17 in the summary summons were void to the extent to which they comprised real or chattel real property and being partially void did not devolve on the donees thereof in the said will mentioned but devolved, so far as the chattel real property was concerned, upon the next-of-kin of the deceased, and, so far as the real property was concerned, upon the heiress-at-law.

N. died on the 30th December, 1934, having made her will on the 11th December, 1934, whereby, after making several pecuniary bequests, she devised real property to the Rev. Mother of the Presentation Convent, Stradbally, to use the income or the proceeds of sale thereof, if sold, for religious purposes in connection with the convent and orphanage at Stradbally. She then left the residue of her estate to trustees in trust to pay the same in equal shares to seven named charitable institutions. The will then contained the following clause:— "If for any reason any charitable bequest made by this will shall be void or of no effect, then in that event I give the sum so bequeathed to the person or persons named in such bequest or bequests absolutely."

Held by Gavan Duffy J. that the devise of the real property at Stradbally, being for charitable uses, was void by reason of s. 16 of the Charitable Donations and Bequests Act, 1844, the will not having been made three months before the death of the testatrix, and, further, that these lands did not pass to the Rev. Mother of the said Convent for her own benefit under the above-recited clause in the will, not being a "sum so bequeathed."Accordingly this property fell into the residue and, as the residuary devisees were also charitable, they were incapable of taking it and it devolved on the heiress-at-law absolutely.

Held also that the residuary gifts were valid as to so much of the residuary estate as consisted of pure personalty and void as to so much as consisted of real property or chattels real.

Held further that the pecuniary charitable legacies were valid to their full amount, as the extent of their validity depended upon the applicability of the principle of marshalling: the non-charitable money legacies, to be paid in the first instance out of the chattels real as far as they might go, thuspro tanto liberating pure personalty for the pecuniary charitable legacies.

An appeal to the Supreme Court by the residuary donees, claiming that they were beneficially entitled as being the persons named in the gifts for charitable purposes, failed, and the judgment of Gavan Duffy J. was affirmed.

Gavan Duffy J. :—

I answer the questions on this summons as follows:—

1 (a). The devise of real property at Stradbally is void.

1 (b). That property does not pass to the Reverend Mother of the Presentation Convent as her own absolute property, but falls into residue and, the residuary devisees being incapable of taking the devise because they are all charitable devisees, the property devolves upon the heiress-at-law absolutely; the "O'Hagan clause" in the will has no...