Re Meehan, Tobin and Another v Cohalan and Another

• Jurisdiction: Ireland
• Judgment Date: 01 December 1960
• Date: 01 December 1960
• Docket Number: (1959. No. 463.)
• Court: High Court

(1959. No. 463.)

In re Meehan, Deceased.

In the Matter of the Estate of CATHERINE MEEHAN, Deceased. REDMOND TOBIN and JAMES TOBIN

Plaintiffs

and

THE MOST REVEREND DANIEL COHALAN and JOHN MEEHAN

Defendants.

Will - Construction - Charitable legacies - Mixed fund - Partial failure of charitable legacies - "O'Hagan clause" - Whether ultimate gift "to the Bishop of Waterford and Lismore" to be construed as charitable or for his own benefit.

Summary Summons.

Catherine Meehan died on the 28th March, 1957, having made her last will, dated the 21st January, 1957, probate of which was duly granted to the plaintiffs. By her said will the testatrix bequeathed all her property to her executors and trustees upon trust to sell and convert the same into cash and to distribute the same amongst certain named charitable and non-charitable legatees. The deceased died possessed of pure personalty and freehold registered land which was sold for a sum of £4,800. The will concluded with a bequest in the following terms:—"I expressly declare and direct that if any bequest hereinbefore bequeathed for any purpose purporting to be charitable shall fail for any reason then I bequeath the amount of such bequest so failing to his lordship the Bishop for the time being of the Diocese of Waterford and Lismore absolutely." The legacies to charitable objects having partially failed by reason of the death of the testatrix within three months of the making of her will, the plaintiffs as executors and trustees of the will of the deceased sought the decision of the Court on the question as to (a) whether the said final bequest took effect upon a partial, but not total, failure of the said charitable legacies, and (b) whether the bequest to the Bishop was a gift to him for charitable purposes or for his own benefit. At the hearing before Budd J. it was conceded and agreed that the said bequest took effect on a partial failure of the charitable bequests, and accordingly that point was not argued.

The testatrix by her will devised and bequeathed all her property real and personal to her executors and trustees upon trust to sell and convert into cash, and directed her trustees inter alia to pay certain legacies of a charitable nature from the fund so arising and to distribute the ultimate residue of the fund amongst certain named charitable legatees. In the final paragraph of her will she declared "that if any bequest hereinbefore bequeathed for any purpose purporting to be charitable shall fail for any reason then I bequeath the amount of such bequest so failing to his Lordship the Bishop for the time being of the Diocese of Waterford and Lismore absolutely."The testatrix having died within three months of the making of her will, the charitable legacies failed in so far as they were payable out of funds representing the realty of the deceased.

Held by Budd J. that the ultimate residue passed to the said Bishop beneficially and free from any trust.

Halpin v. Hannon, 82 I. L. T. R. 74, and Reddy and Another v. Fitzmaurice and Others, 86 I. L. T. R. 127, distinguished.

Cur. adv. vult.

Budd J. :—

This is a summary summons in which the Court is concerned with the construction of the will of Catherine Meehan, deceased. The testatrix died on the 28th March, 1957, having previously made her last will, dated the 21st January, 1957. Probate was granted to the plaintiffs on the 30th August, 1958.

By her will the testatrix devised and bequeathed all her property of every kind real and personal to her executors upon trust to convert the same into cash by sale as soon as they considered reasonable, and to pay thereout her debts, funeral and testamentary expenses and two non-charitable legacies which were to be paid in priority to the other legacies bequeathed by the will. The other legacies consisted of two non-charitable legacies to relatives to the value of £550 free of tax and legacies for charitable purposes to the value of £3,990. The testatrix also requested her executors to expend a sum not exceeding £250 in the erection of a headstone over the family grave and she gave the executors a small legacy each. Out of the residue of her estate she directed her executors to pay certain further sums to the charitable legatees already named in her will and she directed the distribution of the ultimate residue among the Superiors for the time being of the Sacred Heart College, Cork; the Holy Ghost Order, Kimmage; St. Patrick's, Kiltegan, Co. Wicklow; and the Franciscan Missionary Union, Merchant's Quay, Dublin, to be applied for the general missionary objects in Ireland. The testatrix further expressly declared that if any of the bequests contained in her will and which were bequeathed for any purpose purporting to be charitable should fail for any reason she bequeathed the amount of such bequest so failing "to His Lordship the Bishop for the time being of the Diocese of Waterford and Lismore absolutely."

The assets of the deceased consisted partly of pure personalty and partly of realty. The realty comprised parts of the lands of Shanrahan and Garrymore contained in folios 8640 and 20614 of the County of Tipperary. These lands were sold on the 24th October, 1958, for £4,800. The executors of the deceased were advised that by reason of the fact that the deceased died within three months from the date of the execution of her will the charitable legacies contained would fail to the extent that they were payable out of the proceeds of the sale of the real estate by virtue of the provisions of the Charitable Donations and Bequests Act, 1844.

In In re Solomon; Bank of Ireland v. Solomon(1) the Supreme Court decided that where the estate of a deceased person consists of a mixed fund derived from pure personalty and funds representing realty which has been converted, legacies are to be paid rateably out of the fund and if the death of the testator occurs within three months of the making of the will the charitable legacies fail to the extent that they are payable out of the funds representing the realty. It was further decided...