Re Fetherstonhaugh-Witney's Estate and Trusts of the Will of Elizabeth Westby

• Jurisdiction: Ireland
• Judgment Date: 26 May 1924
• Date: 26 May 1924
• Court: Court of Appeal (Irish Free State)

C. A., I. F. S.,

Fetherstonhaugh-Whitney's Estate and the Trusts of the Will of Elizabeth Westby

Real estate - Personalty - Separate dispositions - "Residuary legatee"- Residuary clause - Whether effective to carry real estate - Meaning of the word "property."

A testatrix devised real estate to T. F. for life, with successive estates tail to his sons, charged with certain annuities and jointures, and with an ultimate remainder to the use of T. F., his heirs and assigns for ever. She then disposed of her personal estate, out of which she directed debts and legacies to be paid. Her will concluded: "I leave all the residue and remainder of my property after payment of my debts, legacies, and funeral and testamentary expenses" to T. F. and M. W., and she appointed them residuary legatees and executors. By a codicil she appointed A. F. and W. M. her executors and residuary legatees in the place of T. F. and M. W. T. F. died in the lifetime of the testatrix, and upon the death without issue of H. W.,one of the devisees to whom a life estate was limited by the will, all the successive estates tail had been exhausted. The question then arose as to whether the provision in the codicil appointing A. F. and W. M. executors and residuary legatees in the place of T. F. and M. W. was sufficient to carry the real estate left undisposed of by the will:—Held, by the Court of Appeal (Molony, C.J., and O'Connor, L.J.; Ronan, L.J., dissentiente), reversing Wylie, J., that the residuary clause in the will did not carry the real estate, inasmuch as (1) the will showed a clear division between real and personal property, and made a complete disposition of each, and used appropriate words exclusively for the gifts of each, (2) testatrix had no real estate...