Re Hickey, Deceased; Hickey v Hickey

• Jurisdiction: Ireland
• Judgment Date: 24 April 1913
• Date: 24 April 1913
• Court: Court of Appeal (Ireland)

In re Hickey, Deceased;

Hickey

and

Hickey (1).

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.

1913.

Will — Construction — Beneficial interest or trust.

Held, that the wife took no beneficial interest.

Appeal by Edmond Hickey from the order of O'Connor, M.R., dated the 7th December, 1912, refusing his application on summons for the administration of the real and personal estate of his late father, Patrick Edmond Hickey, on the ground of want of interest.

The question turned on the construction of Patrick Edmond Hickey's will, dated the 5th January, 1901, which was as follows:—

“I, Patrick Edmond Hickey, farmer, residing in the townland of Knockmeelmore … Co. of Waterford, make this my last will and testament. I bequeath to my wife, Catherine Hickey (maiden name Hannifer), my entire worldly effects, to be managed as best she can for the benefit of our children.”

Testator died on the 15th January, 1901, leaving his widow and seven children (including the plaintiff) him surviving. Two of these children died intestate and unmarried. On the 22nd of June, 1910, administration with the will annexed was granted by the King's Bench Division (Probate) of the High Court of Justice in Ireland to Catherine Hickey as universal legatee in trust. Catherine Hickey was named defendant in the summons.

Timothy Sullivan, for the appellant:—

The Master of the Rolls adhered to his own recent decision in Berryman v. Berryman (2), which he thought was undistinguishable from the present case. But both decisions are at variance with

that of the Court of Appeal in In re Delahunty; O'Connor v. Butler (1), where the view taken by Meredith, M.R., of a will substantially the same as the present, was held erroneous. The case which perhaps is closest in its resemblance to Hickey's will is Barnes v. Grant (2), where there was a bequest of all testator's property to his wife “under the firm conviction that she would dispose of and manage the same for the benefit of their children.” Kindersley, V.-C., held that she was only a trustee for the children, who took the whole beneficially. There, as here, there was no possibility of a construction which would give the wife a share with the children. “Benefit” is a larger word than “maintenance and education.” In Blakeney v. Blakeney (3) the words were “to dispose of amongst her children as she may think proper,” and it was held by Shadwell, V.-C., that the mother took no beneficial interest.

Norwood, for the defendant, Catherine Hickey:—

There is here an absolute gift to the widow, with words superadded which merely express what a testator would naturally expect in the case of the mother of a family of children who were not of an age to be able...