Re Patterson, Deceased. Dunlop v Greer

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 09 December 1898
• Court: Chancery Division (Ireland)
• Docket Number: (1898. No. 1106.)
• Date: 09 December 1898

IN RE PATTERSON, DECEASED.

DUNLOP

and

GREER

(1898. No. 1106.)

Chancery Division

Will — Principles of construction — Reading in words — Invalid appointment — Implied trust — "Empower" — "Blood relations" — Next-of-kin taking per capita.

Abbott v. MiddletonENR 7 H. L. C. 68.

Brown v. Higgs 8 Ves. 561

Daniel's Settlement 1 Ch. Div. 375.

Eagles v. Le BretonELR L. R. 15 Eq. 148; 42 L. J. Ch. (N.S.) 362.

Finch v. HollingsworthENR 21 Beav. 112.

Grant v. LynamENR 4 Russ. 292.

Greenwood v. Greenwood 5 Ch. Div. 954.

Grey v. PearsonENR 6 H. L. C.61.

Harding v. GlynENR 1 Atk. 469.

Harding v. GlynUNK 2 W. & T. L. C. 335.

In re DeakinELR [1894] 3 Ch. at p. 575.

Lawler v. Henderson I. R. 10 Eq. 151.

Moore v. FfolliotUNK 19 L. R. Ir. 499.

Pope v. WhitcombeENR 3 Mer. 689.

Re Redfern 6 Ch. Div. 133.

Reade v. Reade 5 Ves. 744.

Roach v. Hammond Gilbert's Eq. Rep. 92.

Tiffin v. LongmanENR 15 Beav. 275.

Towns v. Wentworth 11 Moore, P. C. C. 526.

Wilson v. Duguid 24 Ch. Div. 244.

324 THE IRISH REPORTS. [1899. M. R. 1898. Nov. 28, 30. Dec. 9. IN RE PATTERSON, DECEASED. DUNLOP v. GREER. (1898. No. 1106.) TVill—Principles of construction—Reading in words—Invalid appomtntentÂImplied trust—" Empower "—" Blood relations"—Next-of-kin taking per capita. In construing wills it is the duty of the Court to ascertain, if it be possible, what the testator really meant from the language he has used. The exact words are not to be followed in their literal meaning if it be plain that to do so would frustrate the real intention of the testator. If, from a consideration of the whole will, it is plain that to place a literal meaning upon one clause would have the result of defeating the clear intention, it is necessary even to do violence to the language used. The thing to be ascertained is, what is the testator's will. After certain other dispositions of his residuary personal estate a testator provided as follows :—" I empower the survivor of them [the testator's two brothers] by deed or will to appoint the said personal estate to and amongst my blood relations in such shares and subject to such limitations as he may think fit." There was no gift of the residue in default of appointment. J., the surviving brother of the testator, who took a life interest in the residuary personal estate, by his will purported to make an appointment of the residue in favour of three cousins, having allocated merely nominal sums to the children of a deceased sister, a living sister, and her children. Held, that the appointment to the cousins being invalid, there was an implied gift in favour of the class who would have taken under an exercise of the power, and that the class entitled were the next-of-kin, who were to be ascertained at the date of the death of the tenant for life. Held also, that the objects of the power under the implied trust, in default of appointment, took in severalty and per capita, ALEXANDER PATTERSON made his will, dated 17th March, 1887, the material parts of which were as follows :—" I appoint Thomas Mae Gregor Greer of Ballymoney, in the county of Antrim, and my brother John Patterson of Drumlee, hereinafter called my trustees, to be the executors and trustees of this my will, and I Tu. 1.] CHANCERY DIVISION 325 devise and bequeath all my real and personal estate whatsoever M. R. and wheresoever unto my trustees, upon the trusts following, that 1898. is to say, in trust as to my lands and hereditaments in the town- DUNLOP V. land of Knockans, for my brothers John Patterson and Samuel G _ ER Patterson, as tenants in common, for their respective lives, and from and after their decease, respectively, for their respective wives and children, in such shares as they shall respectively appoint, and in default of appointment for such wives and children equally ; and in the event of any of my said brothers dying without leaving any wife or children him surviving, then it is my desire that the share of such deceased brother in the said hereditaÂments and premises shall from and after his decease be held in trust for my surviving brother for his life, and after his death for his children, in such shares as he shall appoint, and in default of appointment for such children in equal shares ; but in the event of my two brothers dying without leaving any issue, then the said hereditaments and premises shall, on the death of the survivor of them, be held in trust for my nephew David Dunlop, the son of Alexander Dunlop of Drumlee absolutely, and I declare that my trustees shall stand possessed of my personal estate and money lent on mortgage, upon trust either to permit the same to remain in its present investments, or at their discretion to sell, call in, and convert into money the same, or such part thereof as shall not consist of money, and shall with and out of the moneys produced by such sale, calling in, and conversion, and with and out of my ready money, pay my funeral and testamentary expenses and debts and the legacies bequeathed by this my will, or any codicil thereto, and invest the residue of the said moneys in such stocks, shares, mortgages upon freehold or leasehold property or upon personal security as to my trustees shall seem desirable, and shall stand possessed thereof upon trust to pay the interest or annual income to arise therefrom to my said brothers Samuel Patterson and John Patterson during their joint lives in equal shares, and from and after the death of either of them to pay one moiety of my residuary personal estate to his wife and children in equal shares, and in the .event of his dying without leaving a wife or children him surÂviving, then upon trust to pay the entire of the interest or annual proceeds thereof to my surviving brother during his life, and from 326 THE IRISH REPORTS. [1899. M. R. and after his decease, then upon trust as to my entire residuary estate to pay the same to and amongst his children in such shares DUNLOP as be shall appoint, and in default of appointment to such children v. GIEI.R. equally. In case, however, the said Samuel Patterson and John Patterson shall not have any child or children, then I empower the survivor of them by deed or will to appoint the said personal estate to and amongst my blood relations in such shares and subject to such limitations as he may think fit." The testator Alexander Patterson died on the 23rd April, 1887, without having altered or revoked his will, being possessed of several farms, including that of Knockans (which was real estate), and probate of his will was, on the 20th July, 1887, granted to the defendant Thomas Mac Gregor Greer and John Patterson. Samuel Patterson, the testator's brother, died on the 29th March, 1898, having by his will, dated the 28th March, 1893, bequeathed his interest in the farm at Drumlee, with all his other property, to his brother John Patterson, whom he appointed...