Re O'Hare. Madden v M'Givern (No 1)

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 30 January 1918
• Court: Court of Appeal (Ireland)
• Date: 30 January 1918

In re O'Hare.

Madden

and

M'Givern.

M. R.

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.

1918.

Will — Absolute bequest — Gift over in the event of the legatee dying childless — Validity of gift over.

A testator bequeathed certain farms held as yearly tenancies to his son J. and his heirs, and in case of his son J. dying childless he directed that the farms should be given to his son P. Both J. and P. survived the testator, and both died without ever having had children, P. in 1882 and J. in 1917.

Held, that the gift over was valid, and that the personal representative of P. was entitled to the farms.

A gift over which is intended to have, or in fact has, the effect of preventing the exercise of a legal right attached to the estate devised is invalid.

Shaw v. Ford, 7 Ch. D. 669, considered and distinguished.

Summons.

Edward O'Hare by his will, dated the 20th November, 1879, bequeathed all his chattels, crops, cattle, and farming implements and also two farms of land, held by him as yearly tenancies, to his son John and his heirs, and in case of his son John dying childless he directed that these farms should be given to his son Patrick, on condition that there should be a valuation of the chattels and property to be equally divided amongst his sons and daughters. The testator died on the 9th December, 1879, and his will was proved by the plaintiff, the surviving executor, on the 5th August, 1917. Patrick O'Hare died on the 1st January, 1882, intestate, and letters of administration of his estate were granted to his sister, the defendant, Bose M'Givern, on the 15th September, 1917. After the testator's death his son, John O'Hare, entered into possession of the farms bequeathed to him, and continued in the possession and enjoyment thereof until his death on the 18th May, 1917. John O'Hare never had any children, and by his will, dated the 18th January, 1917, he made his wife, Mary Anne O'Hare, his universal devisee and legatee.

The summons was taken out by the executor of Edward O'Hare against Rose M'Givern as personal representative of Patrick O'Hare, and Mary Anne O'Hare as universal legatee of John O'Hare, for the administration of the estate of Edward O'Hare, and for the purpose of having it determined who was entitled to the two farms in the events that had happened.

Cusack, for the plaintiff.

Redmond, for the defendant, Mary Anne O'Hare:—

The bequest to John O'Hare was an absolute gift, and the event on which the gift over took effect was one which could only be ascertained at the death of the devisee, i.e., at the moment when the gift over took effect; the gift over is therefore bad: Shaw v. Ford (1); In re Parry and Daggs (2); M'Connell v. Beattie (3); Kirkpatrick v. King (4). The rule is the same as regards gifts of personal property: Holmes v. Godson (5).

T. W. Brown, for the defendant, Rose M'Givern:—

In re Parry and Baggs (2) was decided on the ground that the effect of the gift over was to render the estate inalienable, and M'Connell v. Beattie (3) on the ground that the gift over was in restraint of marriage. If the dicta of Fry J. in Shaw v. Ford (1) are good law, every executory gift over, whether on failure of issue or any other event, must be invalid.

Cur. adv. vult.

Cusack, for the plaintiff.

Redmond, for the defendant, Mary Anne O'Hare:—

T. W. Brown, for the defendant, Rose M'Givern:—

O'Connor M.R.:—

In this case, Edward O'Hare made his will, dated 20th November, 1879, whereby he bequeathed all his chattels, crops, cattle, and farming implements, and also certain farms of land, to his son John and his heirs, and, in case of his son John dying childless, he directed that the farms should be given to his son Patrick, on condition that there should be a valuation of the chattels and property to be equally divided amongst his sons and daughters. He then gave certain small pecuniary legacies to his children, including a legacy of £50 to his son Patrick, and appointed Robert Kelly and James Madden his executors.

The testator died on the 9th December, 1879, but his will was not proved until the 15th August, 1917, when probate of the will was granted to James Madden the surviving executor.

The testator's son John, to whom the farms were in the first instance bequeathed, went into possession thereof immediately after his father's death, and remained in possession till his own death on the 18th May, 1917. There is no evidence what became of the stock, crops, and implements on the farms.

John O'Hare made a will dated the 18th January, 1917, and he thereby made his wife, Mary Anne O'Hare, his universal devisee and legatee. Patrick O'Hare died on the 1st January, 1882, intestate, and letters of administration of his estate were granted his sister, Rose M'Givern. John O'Hare never had any children, so that he died childless, being the event on which the farms were to be given to Patrick.

The present proceeding is by summons to administer the estate of Edward O'Hare. His executor, James Madden, is the plaintiff, and the defendants are Rose M'Givern, the administratrix of Patrick O'Hare, and Mary Anne O'Hare, the executrix of John O'Hare. Rose M'Givern claims the farms under the gift over...