Re O'Brien; O'Brien v O'Brien

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 14 February 1906
• Court: Court of Appeal (Ireland)
• Date: 14 February 1906

In Re O'Brien; O'Brien

and

O'Brien.

M. R.

Appeal.

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.

1906.

Will — Construction — Bequest of house furniture and whatever is in the house — Sum of money in the house at death — Held not to pass under bequest — Residuary clause — Scope of will — Words ejusdem generis.

Held, that the sum of money found in the box in the testator's house at his death did not pass under the bequest to M., but fell into the residue.

By his will, William O'Brien, of Limavady, county Derry, made the following bequest:— “I bequeath all my house furniture and whatever is in the house I now dwell in, and in the house adjoining, so far as it belongs to me, to my sister Roseanne Doherty.” By a codicil executed on the day after the will was signed, the testator revoked the bequest and bequeathed the same property to William Murphy, in the same terms.

By his will the testator gave some pecuniary legacies, differing in amount and in no case exceeding £500, to several persons, one legacy of £500 being given to Roseanne Doherty, and one legacy of £500 to William Murphy.

The will contained a residuary clause by which the testator directed that the residue of his property (which he estimated at “over £5,000”) should be divided amongst his pecuniary legatees “not strictly share and share alike, but in the proportion of the money bequests to them to whom I have made money bequests, so that those to whom I have bequeathed £500 shall get five times as much as those to whom I have bequeathed £100.” Internal communication existed between the house occupied by the testator and the adjoining house, which was occupied by a relative.

After his death, a sum of £320 was found in a box in the testator's residence. Evidence was given showing that the testator kept in his house a box which usually contained money to meet outgoings and requirements, fluctuating in amount between £4000 and little or nothing.

The question for decision was whether the sum of £320 found in the box in the testator's house passed to William Murphy under the terms of the will and codicil, or fell into the residue.

Wylie, K.C., and G. W. Walker, for William Murphy:—

The words of the gift are extensive, and are sufficient to pass the money found in the house. General words will not be limited to property ejusdem generis, such as that stated or enumerated in a will, where the enumeration only precedes the words in question, nor where there is no enumeration beyond the mention of one specified portion of property: Mahony v. Donovan (1); Swinfen v. Swinfen (2); Arnold v. Arnold (3). Campbell v. M'Grain (4) is distinguishable. There was an enumeration of different classes of property: the testator bequeathed all “my estate and interest in said dwelling-house, together with all my household furniture, plate, linen, and all other effects therein.” Here the single word “furniture” occurs as in Swinfen v. Swinfen (2), and that decision shows that where there is a bequest particularized by one word, followed by general words, the latter will not be restricted to things ejusdem generis: Chapman v. Hart (5); Roberts v. Kuffin (6); Popham v. Lady Aylesbury (7); Sanders v. Earle (8). There was a residuary devise in the will in Arnold v. Arnold (9), so nothing turns on that point.

Henry, K.C., and Osborne, for Roseanne Doherty:—

The money found in the testator's house does not pass to William Murphy under the bequest to him. The latter words of the bequest indicate a gift of things ejusdem generis with the furniture; and a sum of money is so different in character from household furniture that it must be excluded from the operation of the bequest: Campbell v. M'Grain (1). There is a residuary clause in this will to aid this construction: as there was in the last-mentioned case. There was no gift of the residue in Mahony v. Donovan (2) or Swinfen v. Swinfen (3), and these cases are distinguishable from the present. In Arnold v. Arnold (4) no doubt there appears to have been a gift of the residue; but the words there were “my wines and property...