Re Gibbons. D'alton v Gibbons

• Jurisdiction: Ireland
• Judge: Barton J.
• Judgment Date: 11 May 1917
• Date: 11 May 1917
• Court: Chancery Division (Ireland)

In re Gibbons.

D'Alton

and

Gibbons.

Barton J.

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.

1917.

Will — Trust — Charity — Bequest to executors for the testator's “best spiritual advantage.”

Gift, in the will of a Roman Catholic clergyman, of residue to the testator's executors, who were also Roman Catholic clergymen, to dispose of it “to my best spiritual advantage, as conscience and sense of duty may direct,”

Held, not charitable, but a lawful trust which the executors might execute.

Summons.

The testator, the Very Rev. Edward Canon Gibbons, late of Balla in the county of Mayo, Parish Priest of Balla, by his will dated the 16th May, 1901, having made certain bequests not material to the present report, appointed the Very Rev. Edward Canon D'Alton and John Gibbons to be his executors, and disposed of his residuary property in the words following:— “I appoint my executors residuary legatees to dispose of my residuary property, if any, to my best spiritual advantage, as conscience and sense of duty may direct.” The testator died on the 12th day of May, 1905.

The executors proposed to apply the moneys constituting the residuary estate for the purpose of the building of the Parish Church of Balla and founding at that church perpetual masses for the repose of testator's soul, this being the manner in which the executors considered they could most appropriately dispose of the fund to the best spiritual advantage of the testator. Doubts, however, were suggested as to whether the gift was valid and legal, or whether the residue passed as on intestacy to the next-of-kin. With the exception of Rev. John Gibbons, the executor, there were no next-of-kin with whom the executors could communicate. The testator in his will stated that he had had two married sisters, both dead—Mrs. Burke and Mrs. Delaney—and made the following provision:— “The former reared a family for the most part in England, whom I have not seen; the other died after giving birth to a son, who is now a lawyer in America; to any of those who should appear as a claimant I bequeath one shilling, I owe them nothing.” The executors caused inquiries to be made, but failed to trace any of the descendants of Mrs. Burke or of Mrs. Delaney. The plaintiff, Canon D'Alton, one of the executors, brought the present summons to obtain the decision of the Court as to the validity of the residuary gift in the will. In his affidavit he stated it to be the intention of the executors, if the residuary gift should be declared to be good, to apply the money for the building of the Parish Church of Balla and the founding of perpetual masses for the repose of the testator's soul. An affidavit was also made by the Rev. Jeremiah Kinnane, Professor of Canon Law, Maynooth, explaining the doctrines of the Roman Catholic Church with reference to the dead and the benefits to be conferred on the dead by the acts of the living. The defendant, Rev. John Gibbons, did not appear in the case and took no part in the argument.

Hugh Kennedy, for the plaintiff:—

This was an absolute gift to the executors. The testator did not impose a legal trust, but only a precatory request or moral obligation. The words, “as conscience and duty may direct,” show that the testator did not fix on the legatees any obligation enforceable in law. The tendency of the Courts is against precatory trusts: In re Williams (1). Alternatively, the plaintiff submits that this is a good charitable trust, and this view will be argued by counsel for the Commissioners of...