Re Mulcair, McCarthy and Another v Mulcair and Others

• Jurisdiction: Ireland
• Judgment Date: 01 January 1960
• Date: 01 January 1960
• Docket Number: [1958. No. 1186.]
• Court: High Court

In re Mulcair, Deceased.

In the Matter of the Trusts of the Will of Thomas Mulcair, Deceased. Between JOHN McCARTHYand PATRICK HENNESSY, Plaintiffs, and MARGARET MULCAIR, ANNA McENIRY, MARGARET HICKEY and EILEEN CLIFFORD

Defendants.

[1958. No. 1186.]

Will - Construction - Gift of lands to wife for life with remainder to person to be nominated by testator - Gift of residue to wife charged with payment of money to person to be nominated by testator - Failure of testator to nominate remainder man or recipient of money - Whether residuary legatee and devisee entitled.

The testator by his will devised and bequeathed all his lands to his executors in trust to permit his wife to work and manage the same and to reside in the dwelling-house on the said lands for her own absolute use and benefit during her life, and from and after her death in trust for such person or persons as he should by a subsequent will or writing direct. He also bequeathed all the cattle, stock, chattels and effects on the lands and any thing else he might die seised, possessed of, or entitled to to his wife subject to the payment by her of a sum of £1,500 to his executors in trust for such person or persons as he might by subsequent writing in his will direct and appoint. The testator never gave any directions as to the disposition of the remainder interest in the lands or as to the recipient of the sum of £1,500.

Held by Budd J. 1, that the gift of the sum of £1,500 was not to be treated as an exception out of the residue, but as a charge upon the residue which had failed and had sunk into the residue which the testator's wife took free from the charge;

2, That the words, "anything else I may die seised, possessed of, or entitled to," constituted a true residuary clause from which the lands were not expressly or impliedly excepted and that the remainder interest in the lands passed to the testator's wife under that clause.

Blight v. Hartnoll 23 Ch. D. 218 applied; In re Fraser, Lowther v. Fraser[1904] 1 Ch. 726 distinguished.

Summary Summons.

Thomas Mulcair died on the 7th February, 1958, having previously made his last will, dated the 20th June, 1956, probate of which was granted to the plaintiffs, John McCarthy and Patrick Hennessy, the executors named therein, on the 29th May, 1958. The will was in the following terms:—"I Thomas Mulcair of Kilmoylan, Shanagolden in the County of Limerick, Farmer, hereby make publish and declare this to be my last will and testament revoking all former wills and testamentary dispositions heretofore made by me. I nominate and appoint as Executors of my will John McCarthy of Ballyshonakin, Kilmallock, Farmer, and Patrick Hennessy of Kantoher, both in the County of Limerick. In the first instance I leave devise and bequeath to my said executors all my lands in trust to permit my wife to work and manage same, and to reside in the dwelling-house on my said lands of Kilmoylan for her own absolute use and benefit for and during her life and from and after her death in trust for such person or persons as I shall by a subsequent will or writing direct. To my said wife for her own absolute use and benefit I leave and bequeath one-half of my holding of Exchequer Bonds which I at present have, or any monies or securities representing same at the time of my death for her own absolute use and benefit, and the balance of my holding of Exchequer Bonds or any securities or monies representing same at the date of my death I leave and bequeath in equal shares to my nieces Bridget and Pauline McEniry for their own uses and benefits. All the cattle stock chattels and effects on the lands and anything else I may die seised possessed of or entitled to I leave and bequeath to my said wife subject to the payment by her of a sum of One thousand five hundred pounds to my said executors in trust for such person or persons as I may by a subsequent writing to this my will direct and appoint. In witness whereof I have hereunto set my hand this 20th day of June One thousand nine hundred and fifty six."

The testator having failed to give any directions as to the disposition of the remainder interest in the lands or as to the disposition or appointment of the sum of £1,500, the plaintiffs brought proceedings in the High Court (Budd J.) for the determination of the following questions:—

"(i) In the events which have happened do the said testator's freehold registered lands devolve after the life estate of the first-named defendant therein upon (a) the first-named defendant in fee simple by virtue of the residuary disposition in her favour contained in said will, or (b) all the defendants as widow and next of kin respectively of the said deceased according to their respective interests under the Statute of Distribution and the Intestates' Estates Act, 1954, or (c) some other person or persons, and, if so, whom?

(ii) In the events which have happened does the sum of £1500. 0. 0 mentioned in said will devolve as part of the deceased's assets upon (a) the testator's widow by falling into the residuary estate of the said testator, or (b) the testator's widow and next of kin according to their respective interests under the Statute of Distribution and the Intestates' Estates Act, 1954, or (c) some other person or persons and if so, whom?"

The defendant, Margaret Mulcair, was sued as the widow and a beneficiary under the said will; the other defendants were sued as the only next of kin of the deceased.

Budd J. :—

The testator died on the 7th February, 1958, having previously made his last will, dated the 20th June, 1956...