Re Thomasine Eleanor Swan, Deceased; Reid v Swan

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 29 June 1911
• Court: Court of Appeal (Ireland)
• Docket Number: (1910. No. 608.)
• Date: 29 June 1911

In Re Thomasine Eleanor Swan

Deceased

Reid

and

Swan.

Barton, J.

Appeal.

(1910. No. 608.)

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.

1911.

Will — Construction — Testamentary power — “Relatives” of deceased person — Default of appointment — Tenant for life surviving donee of power Time for ascertaining class,

A widow by her will left her residuary estate in trust for her son J. for life, and after his decease in trust for his children, and in case of no such issue (which event happened) in trust to pay the income to her daughters M. and B. and her grandson W. for their lives in such shares as J. should appoint, and on their respective deaths the principal to be paid and transferred to such relatives of J.s father, S, (the testatrix's late husband), as J. should by will appoint.

J. died without making any appointment, and was survived by W., who was the last surviving tenant for life.

Held, that on the death of W. the persons entitled to the testatrix's residuary estate were the statutory next-of-kin of S. living at the death of J.

Adjourned Summons raising certain questions under the will of Thomasine Eleanor Swan, widow, deceased.

The testatrix, by her will dated the 24th May, 1879, after certain specific bequests, gave all her real and personal estate to her executors and trustees, viz., Benjamin Bousfield Swan, Joseph Swan (her son), and Josephine Browne (her daughter), in trust, to pay to Josephine Browne the dividends on one thousand Midland Great Western Railway of Ireland Railway Stock for her life, and after her decease, upon trust, to pay said one thousand shares (sic) among her children or remoter issue as she should by deed or will appoint, and in default of appointment equally among them, and if no such children or issue, in trust for Joseph Swan for life, and after his decease for his child or children as he should by deed or will appoint, and in default of appointment equally, and in default of any children of her said son, Joseph Swan, same was to form part of testatrix's residuary estate; and as to the residue of said dividends or annual proceeds, and as to the principal moneys and securities, in trust for Joseph Swan for life, and after his decease upon trust for his children or remoter issue, as he should by deed or will appoint, and in default of appointment upon trust for his child, children, or remoter issue, who should survive him, in equal shares, the child or children of a deceased child to take his or their parents' shares, and in case of no such issue of the said Joseph Swan him surviving the will proceeded: “The dividends, interest, and proceeds of said principal moneys and securities are for their natural lives to be paid in such shares to my daughters Mrs. Mack and Mrs. Browne, and my grandson, William Swan, as said Joseph Swan, shall appoint, and on their respective deaths such principal moneys and securities are to be paid and transferred to such relatives of his late father, as my son, Joseph Swan, may by his will direct and appoint, and I appoint my said son my residuary legatee and devisee.” The testatrix made a codicil which did not affect the depositions hereinbefore mentioned. The testatrix died on the 21st June, 1880, and probate of her will and codicil was granted to Joseph Swan on the 27th August, 1880, reserving the rights of the other executor and executrix.

Benjamin B. Swan died without obtaining probate, and probate of the testatrix's will was granted to Josephine Browne on the 7th May, 1902; Joseph Swan died without issue on the 16th December, 1902; Mrs. Mack died on 11th November, 1902; William Swan, the testatrix's grandson, died on the 7th May, 1910.

Joseph Swan made his will, dated the 27th June, 1880, by which he bequeathed to his wife, Kate Swan, one of the defendants, all his real and personal property, and appointed her sole executrix, and she proved his will. Joseph Swan did not exercise the power of appointment given to him by the will of Thomasine Eleanor Swan. Josephine Browne survived Joseph Swan, and appointed the plaintiffs her executors, by whom her will was proved. She died before William Swan, the grandson of the testatrix. Mrs. Kate Swan claimed payment of the residue of the estate of Thornasine E. Swan as personal representative and universal legatee of Joseph Swan, and other claims were made by the next-of-kin of William Swan, husband of the testatrix. Mrs. Kate Swan's claim was not persevered in, and the real question which presented itself for decision was the time at which the next-of-kin of the said William Swan, the husband of the testatrix, were to be ascertained.

The plaintiffs, as executors, having commenced proceedings by summons to determine these questions arising on the testatrix's will, the plaintiff, Barbara Lucretia Swan, applied by summons, which was adjourned into Court, to ascertain who were the class of relatives of William Swan, the deceased husband of the testatrix, who became entitled to her estate. Barbara Lucretia Swan was one of the next-of-kin at the death of Joseph Swan, the donee of the power.

J. H. Russell, for the plaintiffs.

Fitz Gibbon, K.C., and H. Morgan Byrne, for Barbara L. Swan.

S. L. Brown, K.C., and Donaldson, for the executors of John Henry Mack.

Harrison, K.C., and E. S. Murphy, for the representatives of William F. B. Swan (grandson of testatrix).

Samuels, K.C., and J. Craig Davidson, for the defendants, Joseph Percival Swan and Francis P. Swan, and other next-of-kin of William Swan, testatrix's deceased husband, who were living at the death of the surviving tenant for life.

Chaytor, K.C., and Poole, for Emily B. Swan, personal representative of a next-of-kin alive at the death of the donee of the power, but who pre-deceased the last surviving tenant for life.

J. H. Russell, for the plaintiffs.

Fitz Gibbon, K.C., and H. Morgan Byrne, for Barbara L. Swan.

S. L. Brown, K.C., and Donaldson, for the executors of John Henry Mack.

Harrison, K.C., and E. S. Murphy, for the representatives of William F. B. Swan (grandson of testatrix).

Samuels, K.C., and J. Craig Davidson, for the defendants, Joseph Percival Swan and Francis P. Swan, and other next-of-kin of William Swan, testatrix's deceased husband, who were living at the death of the surviving tenant for life.

Chaytor, K.C., and Poole, for Emily B. Swan, personal representative of a next-of-kin alive at the death of the donee of the power, but who pre-deceased the last surviving tenant for life.

Barton, J.:—

Mr. Samuels and Mr. Chaytor have argued that the words “relatives of his late father” should be construed not in their ordinary meaning, but as excluding those “relatives” of his late father who were also relatives of the testatrix, his wife; in other words, asexcluding all his late father's descendants, whether children or grandchildren. In support of this contention, counsel rely upon the way in which testatrix refers in the will to her children and grandchildren as “my,” and makes three of them tenants for life of the income of the residuary estate in such shares as her son may appoint. I agree with Mr. Chaytor that descendants should be excluded from the term “relatives,” if testatrix has made her intention to that effect clear. I also agree with Mr. Chaytor that I should apply the rules of construction laid down by Lord Halsbury in In re Joddrell; Joddrell v. Seale (1). I do not know what the testatrix meant, except by the words she used. I can only see her mind through the instrument, meaning thereby of course the whole of the instrument. There is some colour of probability for the view put forward by Mr. Samuels and Mr. Chaytor. I must, however, point out that if speculation of that kind as to probability is to be indulged in, something might be said on the other side. There was a grandchild not mentioned in the will. There was the possibility of other grandchildren. Is it probable that the testatrix meant to prohibit any benefit being conferred upon such relatives of her husband in favour of remoter relatives? This is not a case where it is contended that the word “relatives” is used to “describe” child or children as in a dictum which was cited—but...