Palmer v Orpen

• Jurisdiction: Ireland
• Judgment Date: 01 January 1894
• Date: 01 January 1894
• Court: King's Bench Division (Ireland)

Palmer

and

Orpen.

M.R.

(1892. No. 379.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREPROM IN

THE COURT OF APPEAL.

1894.

Will — Construction — “Then” living — To what period referred — Last antecedent — Ascertainment of class.

A testator devised certain lands in the following terms:—“To my eldest son John and his assigns during his life, and after his death to such one or more of his children or other issue horn in his lifetime, and his, her, and their executors and administrators, at such time and times, in such shares and proportions, and for such estate or estates, and charged with such sum or sums of money for the others or other of them, as my said son shall, by deed or will, appoint; and in default of appointment, I give and bequeath the same to and amongst all his children who shall be living at his decease, or who shall have died leaving issue then living, and their respective administrators and executors, in equal shares, as tenants in common for ever. And in case my said son shall leave no issue living at the time of his decease, then, subject as aforesaid, I give, devise, and bequeath the same to my second son Richard, and his assigns during his life”; and then followed the same provisions and limitations in favour of the children or other issue of Richard, born in his lifetime, as those contained in the devise in remainder after the death of the eldest son.

In the event of the death of Richard without lawful issue, the lands were devised, in similar terms to the testator's third son Emanuel, for his life, with the same provisions and limitations in favour of his children or other issue born in his lifetime; and in the event of the death of Emanuel without issue, the lands were devised in similar terms to the testator's fourth son Robert, for his life, with the same provisions and limitations in favour of his children or other issue born in his lifetime. The will then provided:—“And in case my said son Robert shall leave no issue living at the time of his death, then, subject as aforesaid, I give and bequeath the same to my daughters who shall then be living, or who shall have died leaving issue then living, and their respective executors and administrators, in equal shares, as tenants in common for ever.”

The four sons of the testator mentioned in the will survived him. Robert, the fourth son, died in 1853, unmarried, and without issue; and the third son, Emanuel, died in the same year, also unmarried and without issue. John, the eldest son, died in 1862, without issue, and having survived his wife. Richard, the surviving son of the testator, died in 1892, unmarried and without issue:—

Meld, that the daughters of the testator who were to take as tenants in common, under the provisions of the will, were to be ascertained as a class on the death of Robert in 1853, and not on the death of Richard in 1892, when all the previous limitations in favour of the sons of the testator were exhausted.

Archer v. Jegon (8 Sim. 446) considered and followed.

The general rule of construction in almost all questions arising upon wills is first to ascertain by an examination of the entire will what is the natural and grammatical meaning of the language used by a testator, subject to this, that if the law places a certain signification upon the words he has used, they must, in the absence of a controlling context, be construed in that sense, no matter how he may possibly have meant them to be understood; and having thus arrived at the meaning of the words, they must be so applied, unless so to do would lead to some palpable absurdity, or violate some rule of law.

Action.

By his will, dated 14th August, 1847, the Rev. John Emanuel Orpen devised certain lands in the following terms:—“To my eldest son John Herbert Orpen, and his assigns, during his life, and after his death to such one or more of his children, or other issue born in his lifetime, and his, her, or their executors and administrators, at such time and times, in such shares and proportions, and for such estate or estates, and charged with such sum or sums of money for the others or other of them as my said son shall by deed or will appoint; and in default of such appointment, I give and bequeath the same to and amongst all his children who shall be living at his decease, or who shall have died leaving issue then living, and their respective administrators and executors, in equal shares, as tenants in common for ever. And in case my said son shall leave no issue living at the time of his decease, then, subject as aforesaid, I give, devise, and bequeath the same to my second son Richard Ashe Orpen, and his assigns, during his life, and after his decease, to such one or more of his children or other issue born in his lifetime, and his, her, or their executors and administrators at such time and times, and in such shares and proportions, and for such estate or estates, and charged with such sum or sums of money for the others or other of them as my said son Richard Ashe Orpen shall by deed or will appoint; and in default of such appointment I give and bequeath the same to and among all his children who shall be living at his decease, or shall have died leaving issue then living, and their respective executors and administrators, in equal shares, as tenants in common for ever. And in case my said son Richard Ashe Orpen shall leave no lawful issue at the time of his death, then, subject as aforesaid, I give and bequeath the same to my third son Emanuel Henry Orpen, and his assigns, during his life, and after his decease to such one or more of his children or other issue born in his lifetime, at such time and times, in such shares and proportions and for such estate or estates, and charged with such sum or sums of money for the others or other of them as my said son Emanuel Henry Orpen shall by deed or will appoint; and in default of such appointment, I give and bequeath the same to and among his children who shall be living at his decease, or shall have died leaving issue then living, and their respective executors and administrators, as tenants in common for ever. And in case my said son Emanuel Henry Orpen shall leave no lawful issue living at the time of his death, then, subject as aforesaid, I give and bequeath the same to my fourth son Robert Hutchinson Orpen, and his assigns, during his life, and after his decease to such one or more of his children or other issue born in his lifetime, at such time and times, in such shares and proportions, and for such estate or estates, and charged with such sums or sum of money for the others or other of them as he my said son Robert Hutchinson Orpen shall by deed or will appoint; and in default of such appointment, I give and bequeath the same to and among all his children who shall be living at his decease, or shall have died leaving issue then living, and their respective executors and administrators, in equal shares, as tenants in common for ever. And in case my said son Robert Hutchinson Orpen shall leave no issue living at the time of his death, then, subject as aforesaid, I give and bequeath the same to my daughters who shall then be living, or who shall have died leaving issue then living, and their respective executors and administrators, in equal shares, as tenants in common for ever.”

There were other lands devised by the will to the testator's children, but in a different order of succession.

The testator died in June, 1852, and probate of his will was duly granted to the executors in July of the same year. He left four sons surviving, viz. John Herbert Orpen, Richard Ashe Orpen, Emanuel Henry Orpen, and Robert Hutchinson Orpen; and three daughters, Hannah Hutchinson Orpen, Margaret Lucy Orpen who married the plaintiff Thomas Palmer, and Fanny Sophia Orpen who subsequently married William Smith.

Robert Hutchinson Orpen, the fourth son of the testator, died in 1853, unmarried, and without issue; and Emanuel Henry Orpen died in the same year, also unmarried, and without issue.

John Herbert Orpen, the eldest son of the testator, died in 1862, without issue, and having survived his wife.

Richard Ashe Orpen, the surviving son of the testator, died in 1892, unmarried, and without issue.

Hannah Hutchinson Orpen died in October, 1878, unmarried; and Frances Sophia Smith died on the 6th April, 1883, having survived her husband, and without issue.

The third daughter, Margaret Lucy Palmer, survived Richard Ashe Orpen, and was one of the plaintiffs in the action.

The question which arose for decision in the case in the events that happened was whether, under the terms of the limitations in the testator's will, the time for the ascertainment of the daughters, who were to take as tenants in common, as a class, was on the death of Robert Hutchinson Orpen, or on the death of the survivor of the brothers, Richard Ashe Orpen. The plaintiff Margaret Lucy Palmer claimed to be entitled to all the lands so devised, as being the only daughter of the testator living at the death of Richard Ashe Orpen.

The defendant claimed to be entitled to two-thirds of the lands so devised, as being entitled to the shares of Hannah Hutchinson Orpen and Frances Sophia Smith, under the dispositions of their respective wills, which shares it was contended became vested in them respectively on the death of Robert Hutchinson Orpen in 1853.

Sergeant Jellett, Q.C., Ronan, Q.C. (with them Martin Burke, Q.C., and Conner), for the plaintiffs:—

The plaintiff, Mrs. Palmer, as the only daughter who survived Richard Ashe Orpen, is entitled to the lands devised on the construction of the clause in question. Under the general scheme of the will it is plain that the real estate is not intended to pass to the female issue till all the issue of all the sons is exhausted, and the intention of a testator, when it can be collected from the whole...