Re Berryman; Berryman v Berryman

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 19 November 1912
• Court: Chancery Division (Ireland)
• Date: 19 November 1912

In re Berryman, Deceased: Berryman

and

Berryman.

M. R.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1913.

Will — Construction — Gift to widow for benefit of children — Trust.

Held, that under this bequest, the wife became entitled beneficially to the whole of the property.

Originating Summons.

The testator, William James Berryman, made his will in the following terms:—

“I William James Berryman, of Ballylifford, in the parish of Ballinderry, in the county of Derry, do, make this my last will and testament. I leave and bequeath all my property, chattels, money, bank shares, and my life insurance, or whatever I am possessed of or entitled to, to my beloved wife, to be disposed of as she may think best for the good of our children.”

At the time of the said testator's death he was possessed of the following property: (a) A farm of land held in fee-simple; (b) a policy of insurance on his life; (c) twelve Northern Bank shares; (d) farm stock and chattels. He left him surviving his widow, Martha Berryman and the following children:—Esther, Anna Mary, William John, Martha Elizabeth, Samuel Charles, Thomas James.

Martha Berryman, the widow, was on the 13th February, 1912, declared to be a person of unsound mind, and the present summons was brought by the committee of her estate, who was also the administrator (with the will annexed) de bonis non of the estate, to determine the following questions:—

(1) Whether, upon the true construction of the will, Martha Berryman became entitled beneficially to the whole of the property of the deceased; or (2) whether Martha Berryman took the whole of the said property as a trustee for the children in the said will mentioned; or (3) whether the said Martha Berryman took the said property subject only to a trust to apply thereout such portions as she in her discretion might think fit for the maintenance and advancement of the said children.

J. S. Baxter, for the plaintiff:—

The widow took an absolute beneficial interest unaffected by any trust. The words following the gift “to my beloved wife” are only expressive of the testator's motive. This is a “home-made” will, and authorities are of little use; but in O'Brien v. Condon (1) Sir Andrew Porter, M.R., says that the words “to dispose of” do not imply the absence of a beneficial interest: see his dictum at p. 55. The words “as she may think best”...