Re McCleary; Moffat v McCleary

• Jurisdiction: Ireland
• Judgment Date: 01 January 1923
• Date: 01 January 1923
• Docket Number: (1922. No. 75.)
• Court: Chancery Division (Irish Free State)

Moffat v. M'Cleary

In re JOHN M'CLEARY, Deceased. MOFFAT

and

M'CLEARY (1)

(1922. No. 75.)

Ch. Div. (N. I.)

Will - Construction - Condition subsequent - "Come to live" - Uncertainty.

A testator bequeathed the residue of his property to his brother Alexander, at present residing in I., New Zealand, provided that he or any of his sons came to live at M. within one year after the testator's death, and in the event of Alexander or any of his sons not so coming to live at M., he bequeathed said residue to his brother Aaron.

Held, that the condition as to residence was too vague to be enforced, and was void for uncertainty, and that Alexander was entitled to the residue of the estate absolutely.

Originating Summons.

John M'Cleary made his will, dated 17th January, 1920, as follows:—"I bequeath to my brother Alexander M'Cleary, at present residing in Invercargill, New Zealand, provided that he or any of his sons come to live at Magherahan within one year after my death, the residue of all the property of which I may die possessed. In the event of the said Alexander M'Cleary or any of his sons not so coming to live at Magherahan as aforesaid, I bequeath said residue to my brother Aaron M'Cleary." The testator died on the 3rd November, 1920, without having revoked or altered his will. Probate was on 31st March, 1921, granted to John Moffat, an executor. Under an earlier will of another brother (Robert M'Cleary) Alexander was already entitled to the farm at Magherahan on the death of John M'Cleary, the above testator.

The plaintiff, John Moffat, brought the present summons for the determination of the following questions:—

1. Whether on the true construction of the will Alexander M'Cleary has fulfilled the conditions of the will?

2. Whether the residuary legacy given by the will is presently payable to Alexander M'Cleary?

3. If not, then to whom is the said legacy and the income thereof presently payable?

Moore L.J. :—

This was an originating summons brought by John Moffat as executor of the will of John M'Cleary, deceased, for the determination of the following questions arising in course of the administration of the estate of the deceased. [His Lordship read the questions (ante, p. 16).]

John M'Cleary, the testator, made his will on January 17th, 1920, of which the following is the material clause so far as the present application is concerned. [His Lordship read the clause in the will (ante, p. 16).]

The testator died on November 3rd, 1920, and Alexander M'Cleary returned to Ireland in October, 1920, and has been living at Magherahan ever since. It may be mentioned that under an earlier will of another brother (Robert M'Cleary) Alexander was already entitled to the farm at Magherahan on the death of John M'Cleary, the above testator.

After the case had been fully argued before me, I discovered that the entire subject-matter of the application was situate outside the jurisdiction of this Court and I declined to make a declaratory judgment not enforceable by this Court, in Southern Ireland, without further argument. However, that difficulty has now disappeared, because the executor has brought into Court a deposit receipt for £775, the property of the testator, to abide any decree which may be made.

There are two questions to be answered in the present case: Is Alexander M'Cleary now absolutely entitled to the residue, because, on the facts, he has sufficiently complied with the terms of the condition in the will? Or, alternatively, are the terms of the will binding in law or too vague, and therefore bad for uncertainty, and consequently to be rejected?

Dealing with the first question, and therefore assuming the condition to be valid, has it on the true construction of the will been sufficiently complied with? The proviso is that Alexander is to have the residue, "provided that he . . . come to live at...