Re MOORE, DECEASED. Long v MOORE

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 11 May 1907
• Court: Chancery Division (Ireland)
• Docket Number: (1907. No. 315.)
• Date: 11 May 1907

In Re Moore, Deceased.

Long

and

Moore.

Barton, J.

(1907. No. 315.)

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.

1907.

Gift of land to charity — Will — Republication by subsequent codicil — Death of testator within three months — Validity of gift — 7 & 8 Vict. c. 97, s. 16.

Held, that the devise of the lands for charitable purposes was not invalidated.

By his will dated 6th January, 1906, John Davis Moore, of 18 Monaghan Street, Newry, appointed Robert J. Long and James Hendren executors and trustees of his will, and, after certain legacies, bequests, and directions, devised and bequeathed the residue of his real and personal estate to his trustees and executors upon trust “for and to pay over the same to or for the benefit of the society formed in Belfast in the year 1866, called ‘the Presbyterian Orphan Society.’”

By a codicil to his will dated 21st August, 1906, testator bequeathed a legacy of £50 to a legatee therein named, and in all other respects confirmed his said will.

By a second codicil to his will, dated 7th September, 1906, testator declared certain trusts concerning property belonging to him in Belfast, to take effect upon the death of the survivor of the persons to whom it had already been devised and bequeathed for life by his will, and in all other respects confirmed his will as altered by the former codicil thereto.

Testator died on the 9th September, 1906, less than a month after the execution of the first codicil, and three days after the execution of the second codicil to his will, and probate of the will and codicils was granted to Robert J. Long and James Hendren, the executors named in the will, on the 31st October, 1906.

Portion of the residue devised in trust for the Presbyterian Orphan Society consisted of certain house property in Belfast.

The question raised was, whether the devise of lands for a charitable purpose was invalidated by the fact that the will containing the devise was confirmed and republished by codicil, executed less than three months before the death of the testator.

Cusack, for the executors and trustees.

Megaw, for the Presbyterian Orphan Society:—

There is no reported authority on the question, but the Courts have always assumed that the actual date of the execution of the will was the crucial date. Section 16 of the 7 & 8 Vict. c. 97, requires that the will should be duly “executed” three calendar months at the least before the death of the testator. A codicil only affects publication, and not execution. The distinction is apparent in the Wills Act, section 9, which prescribes the requisites for valid execution. Section 23 of that Act is distinct legislative authority to the effect that a codicil, unless it expressly revokes a will, shall not prevent the operation of the will. Since the Wills Act every will speaks as if executed just before testator's death, but this does not affect the validity of gifts of land to charities where the will is actually executed three months before death. Powys v. Mansfield (1) is an authority that a codicil is not a republication of the will for all purposes. In Hopwood v. Hopwood (2) Lord Campbell lays down that the effect of a codicil does not necessarily operate as if the will had been made at the date of the codicil. Stilwell v. Mellersh (3) is an authority to the same effect. Section 16 of the 7 & 8 Vict. c. 97, refers to the actual date on which the will was executed. Republication only brings down the date for the purpose of construing the provisions of...