Re Finnerty; Finnerty v Murphy

• Jurisdiction: Ireland
• Judge: Kenny J.:
• Judgment Date: 01 January 1970
• Neutral Citation: 1965 WJSC-HC 3491
• Date: 01 January 1970
• Docket Number: No. 236 Sp./1968,[1968. No. 236 ]
• Court: High Court

Finnerty (Deceased), In Re

IN THE MATTER OF PETER JEREMIAH FINNERTY, DECEASED

BETWEEN

MARY FINNERTY

Plaintiff

AND

ANTHONY MURPHY, MARTIN ANTHONY FINNERTY AND OTHERS

Defendants

1965 WJSC-HC 3491

No. 236 Sp./1968

THE HIGH COURT

1 Judgment delivered 22nd February 1969Kenny J.:

Kenny J.:

2 Doctor Peter Finnerty, who died on the 12th of July 1964, made his Will on the 4th of April 1959. It read:

"I Peter Jeremiah Finnerty make this my last Will and Testament hereby revoking all previous Wills and Testamentary dispositions heretofore made by me. I appoint Anthony Murphy of Willmoun Athenry to be executor of this my Will. I Will and Bequeath all my property of every kind to my wife, Mary Finnerty in trust for herself and our children knowing that she will promote the education and welfare of each child as far as the money and means at her disposal allow. I direct and Will that should my wife re-marry all the property held by her on re-marriage shall be transferred to and held In trust by my executor, Anthony Murphy, for the use of my children in equal shares".

3 When this ill-drawn Will was made, the deceased's eldest child was four and his youngest one. The Will, which was witnessed by two Solicitors, is written in the language of lawyers but the person who wrote It produced such an obscure document that it has been necessary to bring these proceedings to determine what the Will means.

4 Counsel for the executor has argued that Mrs. Finnerty, the widow, takes a life estate in all the property subject to its being divested if she re-marries and has relied on the decision in Mill v. Mill (1875) I.R. 9 Eq. 104: I.R.ll Eq. 158. In that case, however, the words used made it clear that the capital was not to be distributed until the widow died. In this case the words are "in trust for herself and our children1" and I see no reason why 1 should imply that the widow take a life estate only. I think that Mrs. Finnerty was made a trustee for herself and the four children who were living at the date of the testator's death and that she takes a separate interest.

5 It has been argued that she takes as a joint tenant with the four children. The Will, however, refers to the education and welfare of each child and this suggests that there is a tenancy-in-common. The last clause dealing with the position which would arise if Mrs. Finnerty re-married directs that the executor is to hold the property for the children...