Re Morrissey; Carey v Cronin

• Jurisdiction: Ireland
• Judgment Date: 04 July 1944
• Date: 04 July 1944
• Court: High Court

In re Morrissey; Carey v. Cronin.

In re KATE MORRISSEY, Deceased, EDWARD CAREY and ANOTHER

Plaintiffs

and

CATHERINE CRONIN and OTHERS

Defendants.

Will - Charitable bequests - Whether marshalling applicable in favour of charities - Mixed fund comprising interest in land and pure personalty - Bequests out of mixed fund for charitable purposes - Will made within three months of death of testatrix - Charitable Donations and Bequests Act, 1844 (7 & 8Vict., c. 97), s. 16.

Where a testator gives legacies to charities payable out of a mixed fund or estate and dies within three months from the date of his will, the gift must be thrown proportionately on the proceeds of the pure personalty and the proceeds of lands, and the gift fails to the extent to which it is payable out of the proceeds of land. The Court will not apply the principle of marshalling in favour of the gift.

So held by Overend J.

In re Clancy; McDonald v. Attorney-General, [1943] I. R. 23, followed.

In re Nolan; Hannon and Another v. Attorney-General and Others, [1939] I. R. 388, and Fitzpatrick v. Maynooth Mission to China (Incorporated)reported ante p. 344 not followed.

Construction Summons.

Kate Morrissey, of Ballyfoleen, Kilfinney, County Limerick, died on the 5th July, 1942, and by her will, dated 24th June, 1942, she appointed, as executors and trustees, the plaintiffs, Edward Carey, John Lillis and the defendant, the Reverend James O'Byrne.

At the date of her will the testatrix and her brother, James Morrissey, one of the defendants, were the sole surviving next-of-kin of two deceased brothers and a deceased sister, viz., Patrick Morrissey, Michael Morrissey, and Mary Morrissey, each of whom died unmarried and intestate. Letters of administration to the estates of the said brothers and sister were granted to the testatrix, but she died without having fully administered these estates, and since her death grants of administration de bonis non were issued to the defendant, the Reverend James O'Byrne as Committee of the estate of the said James Morrissey, who was a person of unsound mind.

The only property which the testatrix owned at the date of her death was her distributive share of the assets of her said deceased brothers and sister, which consisted of two farms in Ballyfoleen South, registered under Part IV of the Local Registration of Title (Ir.) Act, 1891, and of pure personalty to the amount of £1,257 17s. 0d. The farms were sold after the death of the testatrix and the net proceeds of the sale, after deduction of costs, expenses and duties payable in respect of the estates of her deceased brothers and sister and of the expenses of the said sale, were £2,251 4s. 4d.

The material portion of the will of the testatrix was as follows:—

"I leave and bequeath my interest in the two farms of land at Ballyfoleen South to my executors and trustees hereinafter named in trust with power to sell and dispose of the farms as soon as possible after my death, and after deduction of all legal expenses and revenue duties I direct my executors to set aside one half share of the proceeds of said sale and to apply same for the maintenance and care of my brother James Morrissey in a Home during his life.

I also direct my executors to sell all stock and effects on the lands and in the house after my death and out of the proceeds thereof together with any money I may die possessed of and the proceeds of the remaining half share of the lands I leave and bequeath the following bequests. . . ."

The bequests included two sums of £100 each for masses, one to the defendant, the Reverend James O'Byrne, and the other to the Parish Priest for the time being of the Parish of...