Re McComiskey; Gibson v Paterson

• Jurisdiction: Ireland
• Judgment Date: 21 July 1939
• Date: 21 July 1939
• Court: High Court

In re McComiskey; Gibson v. Patterson.

In the Matter of the Trusts of the Will of JAMES McCOMISKEY, Deceased; ARTHUR WILLIAM GIBSON

Plaintiff

and

LAMBERT PATTERSON AND OTHERS

Defendants.

Will - Construction - Gift of income of testator's property to his daughter for life free from the control "of any husband she may hereafter marry" - On the death of daughter "if such husband should survive her to the use of such husband for life" - Marriage of daughter but husband subsequently divorced by her - Divorced husband surviving wife - Effect of divorce on status of parties - Whether wife "died unmarried" - Whether divorced husband could claim life estate as "husband."

On the construction of a will, the Court held that a woman who had been married, but whose marriage had been dissolved in England, did not "die unmarried," nor did she leave "a husband surviving her" although her divorced husband survived her, the husband being domiciled in England at the time when the English Court pronounced a dissolution of the marriage and, in the absence of an Irish law invalidating that decree, the law of his domicile determined whether he was married or not, when that question arose on a claim on which a marriage was the foundation.

Under the will the testator left the residue of his property on trust to pay the income to his daughter for life, free from the control "of any husband she may hereafter marry," and, after her death, "if such husband shall survive her, to the use of such husband for life." The daughter married but she divorced her husband and the divorced husband survived her. He claimed the life estate given to him under the will, contending that he took a vested interest in the life estate at the moment of his marriage and that the divorce could not affect his right in the absence of a special order as to the property by the Court which dissolved the marriage.

Held that the husband has not a vested interest and therefore his claim failed.

Construction Summons.

The plaintiff, as administrator of Jane Elizabeth Cottu, deceased, who was one of the beneficiaries under the trusts of the will, dated the 31st of May, 1869, of James McComiskey, brought this summons for the determination of certain questions arising thereon. The said James McComiskey died on the 10th of August, 1869.

The material parts of the will were as follows:—"I direct that my said trustees shall set or otherwise manage as in their discretion they may think best such lands as may be in my occupation at my decease and shall dispose of my stock and effects and call in all moneys outstanding at my decease and invest same and the proceeds of such sales upon such securities as they may approve of, in the purchase of land I would prefer, but do not bind them thereto, and shall stand and be possessed of all said lands, securities and moneys upon trust to pay the annual interest, proceeds and dividends thereof to my only daughter Jane Elizabeth McComiskey during her life on her sole receipt, free from the debts, control or engagement of any husband she may hereafter marry, and after the decease of the said Jane Elizabeth McComiskey, if such husband shall survive her, to the use of such husband for life, and after the decease of the survivor of them to and amongst the issue of the said Jane Elizabeth McComiskey in such shares and proportions and subject to such limitations and conditions as the said Jane Elizabeth McComiskey shall by deed or will appoint, and, in default of such appointment, as such husband shall by deed or will appoint, and, in default of such appointment, equally to be divided to and amongst such issue and if but one child then to such only child, provided that it may be lawful for the trustees for the time being of this my will at the request in writing of the said Jane Elizabeth McComiskey and her husband or the survivor of them to advance for the advancement in life of any child of the said Jane Elizabeth McComiskey out of the principal fund then standing in their names such a sum as they may deem reasonable and proper not exceeding one half of the share to which such child would presumptively become entitled, and in case my said daughter shall attain age and die unmarried then as to all said lands, securities and moneys one-third thereof is to go to such person or persons as my said daughter may by her last will and testament direct and the remaining two-thirds thereof to go to and be divided amongst my next-of-kin, and in the event of my said daughter marrying and dying leaving a husband and no issue her surviving then (subject to such husband's life estate therein) one-fourth of all said lands, securities and moneys is to go absolutely to such husband, his executors, administrators and assigns, and the remaining three-fourths thereof to and amongst my next-of-kin, provided that in case my death shall occur before my said daughter attain the age of twenty-one years or marry, then the annual interest, proceeds and dividends of said lands, securities and moneys are to accumulate and be added to the principal save such annual sum as my said trustees shall think right to apply, which I hereby authorise them to do, for the proper support, maintainance and education of my said daughter, and, in the event of the death of my said daughter under age and unmarried, then as to all said lands, trust funds and securities unto and to the use of my nephews and nieces hereinafter named and my sister Rose Mackintosh, or such of them as shall be living at the time of my daughter's decease in equal shares and proportions."

The testator executed a codicil to his will on the 8th July, 1869, but it did not alter the disposition of the trust property. Probate of the said will and codicil was granted forth of the Principal Probate Registry in Ireland on the 17th November, 1869, to the...