Re Taylor, Deceased. Shaw v Shaw

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 01 December 1913
• Court: Chancery Division (Ireland)
• Date: 01 December 1913

In Re Taylor, Deceased.

Shaw

and

Shaw.

Barton, J.

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.

1914.

Will — Construction — Devise — Property neither to be mortgaged nor sold — Life interest — Married woman — Restraint on anticipation.

Held, that M. took only a life interest for her separate use, with a restraint on anticipation during coverture.

Originating Summons.

The question raised by the originating summons was as to the true construction of the following devise in the will, dated the 22nd day of February, 1860, of Robert Taylor, deceased, who died on the 21st day of May, 1861:— “I will, devise, and bequeath to my beloved daughter, Margaret Taylor, alias Shaw, all those two dwelling-houses, together with the appurtenances thereto belonging, situate and numbered respectively 75 and 77 Joy Street, Belfast, for her sole use, said houses neither to be mortgaged nor sold, and at her demise to descend to her next-of-kin, and neither to be mortgaged nor sold as long as the lease of the said houses shall last.”

Margaret Shaw was a married woman at the date of the will and of the testator's death. The houses in question were held under a lease for lives renewable for ever.

M'Gonigal, K.C., for the plaintiff, Margaret Shaw:—

The question for decision is, whether the plaintiff, Margaret Shaw, takes an absolute estate under the will. The testator bequeathed to her the two houses “for her sole use, said houses to be neither mortgaged nor sold, and at her demise to descend to her next-of-kin, and neither be mortgaged nor sold as long as the lease of the said houses shall last.” The intention of the testator was to give the plaintiff an absolute estate; to accomplish this he gave the property “for her sole use.” The words “said houses to be neither mortgaged nor sold,” &c., were appended to the absolute gift. These words are incompatible and inconsistent with the absolute gift already given, and cannot have any effect in reducing the absolute gift to a life interest.

J. H. Dixon, for the defendant:—

The Court has no power to make a will for the testator, and the intention of the latter must be gathered from the words used in the will. The testator did not give the plaintiff an absolute estate. The words of the will are “for her sole use, said houses neither to be mortgaged nor sold, and at her demise to descend to her next-of-kin, and...