Porter v Fay

• Jurisdiction: Ireland
• Judge: Mr. Justice McWilliam
• Judgment Date: 25 April 1978
• Neutral Citation: 1978 WJSC-HC 1928
• Docket Number: No. 122 Sect. 5/1977
• Court: High Court
• Date: 25 April 1978

1978 WJSC-HC 1928

THE HIGH COURT

No. 122 Sect. 5/1977

PORTER v. FAY

THOMAS PORTER

.V.

ELIZABETH FAY & OTHERS

1 Judgment delivered by Mr. Justice McWilliamon Wednesday the 25th day of April 1978

2 The Plaintiff is the executor of the last Will, dated 8th August, 1974, of Martin Porter (hereinafter called the Testator), who died on 15th January, 1976, a widower, leaving four children and twelve grandchildren, him surviving.

3 By his said will the Testator made the following bequest:- I bequeath my house to my four children, Elizabeth Fay, Anne Caffrey, Thomas Porter and Mary Ivory in equal shares and in the event of their death to their children, on condition that my children, Elizabeth, Anne and Thomas already mentioned or their children do not lay claim to their share during the lifetime of my daughter Mary Ivory. In the event of my daughter Mary Ivory predeceasing her husband Patrick Ivory it is my wish that he should be allowed to continue to occupy the houseforso long as he should require the same as a residence, on condition that he does not let or sublet the house.

4 The Testator did not make any residuary bequest.

5 The first question I am asked to decide is whether the Testator's four children take the property absolutely or as life tenants with remainder to their children, and, if they take as life tenants only, do the grandchildren take per stirpes or per capita. Each of the children of the Testator married and had children.

6 The effect of the general rule as stated in Jarman on Wills (See Ed. 8, Vol. 3, p. 2003) is that, where there is a gift over in the event of death and there is no indication as to the time to which a testator intended the death to relate, it will be presumed that he meant to refer to death occurring in his own lifetime. I was referred to the cases of Re Neary's Estate 7 L.R.Ir. 311 and In Re Bourke'sTrusts 27 L.R.Ir. 573., The rule is based on the proposition that a person must necessarily die sometime and that an expression such as "the event of death" must mean the event of death at or before some particular time.There is no indication in this will of any time other than the death of the Testator being intended. Therefore I hold that the four children, having survived the Testator, took absolute interests.

7 The next question arising is whether the condition that Elizabeth, Anne and Thomas do not lay claim to their share during the lifetime of Mary gives Mary a...