Re Boland, Smithwick v Smithwick

• Jurisdiction: Ireland
• Judgment Date: 23 October 1961
• Date: 23 October 1961
• Docket Number: (1960. No. 1051.)
• Court: High Court

(H.C.)

In re Boland

Smithwick

and

Smithwick

Excercise - Whether exercised by general words in appointor's will -Reference to any general power - Whether intention to exercise special power.

M.B. died in 1882 having made her will in 1879. By her will she provided, inter alia, that five-sevenths of her residuary estate was to be held on trust for her five daughters in equal shares, to pay the share of the income to each daughter for her life, and to each daughter's husband for his life should he survive her and then in trust for the child or children of such daughter as she should by deed or will appoint and in default of appointment to the children of such daughter in equal shares. One of the daughters, G.M.B., married J.S. in 1900. The marriage settlement recited that G.M.B. was absolutely entitled to certain securities, etc., and these were declared to be the "trust funds". It also recited the terms of M.B.'s will and that certain funds lodged in Court in a Chancery suit relating to the said will represented the value of G.M.B.'s interest under the said will. The trustees were empowered to expend not more than £14,000 out of the trust funds on the purchase of specified properties at Kilcreene. The income of the fund was directed to be paid to G.M.B. for life and after her death £200 per annum to her husband, J.S., for life and subject thereto to the children or remoter issue of G.M.B.as she should by deed or will appoint and, in default, as J.S. might similarly appoint, and in default to the children equally subject to a hotchpot clause, with remainders over. There was also a provision that G.M.B. might appoint such of the specified properties as might be bought to any person discharged of any trusts, but that in default of such appointment such property was to be subject to the provisions relating to the trust funds. In 1901 the trustees bought estates at Kilcreene out of the trust funds and in 1918 bought other estates. J.S. died in 1930. In 1933, G.M.S. (nee G.M.B.) appointed irrevocably (subject to a life estate for herself) all of the lands bought in 1918 and part of those bought in 1901 to her son, W.S. In 1939 G.M.S.appointed irrevocably the remainder of Kilcreene to W.S. and released her life estate in the previously appointed portion. The deed provided that W.S. was to share in the unappointed trust funds without bringing the appointed lands into hotchpot. On the 21st July, 1959, G.M.S. died, having made her will, dated the 5th...