Reid v Atkinson

• Jurisdiction: Ireland
• Judgment Date: 02 June 1871
• Date: 02 June 1871
• Court: Chancery Division (Ireland)

V. C. Court.

REID

and

ATKINSON.

Briggs v. Penny 3 M. & Gor. 546.

Bernard v. MinshullENR John. 276.

Barnes v. Grant 26 L. J. Ch. 92.

Pilkington v. BougheyENR 12 Sim. 114.

Lefroy v. Flood 4 Ir. Ch. R. 1.

Knight v. Boughton 12 Cl. & F. 513.

Greene v. Greene I. R. 3 Eq. 90, 629.

M'Cormick v. GroganENR L. R. 4 H. L. C. 82.

Meredith v. HeneageENR 1 Sim. 542.

Winch v. BruttonENR 14 Sim. 379.

Williams v. WilliamsENR 1 Sim. N. S. 358.

Wood v. CoxENR 1 Keen. 317.

Reade v. MarsdenENR 1 Drew. 646.

Johnston v. RowlandsENR 2 De G. & Sm. 356.

Harland v. TriggENR 1 Bro. C. C. 142.

Wright v. Atkyns T. & R. 143.

Bernard v. Minshull 1 John. 276.

Will — Precatory Trust — Failure of Trust by Uncertainty of Object.

THE IRISH REPORTS. [I. R. will be affirmed, and the Appellant must pay the Respondent's costs of the appeal. Order affirmed. Solicitor for the Appellant : Mr. James Sinnott. Solicitor for Charles Walter : Mr. Edwin Hayes. V. C. Court. 1871. REID v. ATKINSON. Will-Precatory Trust-Failure of Trust by Uncertainty of Object. Jan. 12, 13. A testator left his real and personal property to his wife for her life, with power to dispose of all the property, both real and personal, as she might judge best and wisest ; he relying with confidence on her discretion, and that she would make such a distribution or disposal of it as would thoroughly accord with his wishes on the subject, with all of which she was perfectly acquainted : There was some evidence of the testator having communicated some wishes to his wife, but none as to what they were : Field, that the terms of the gift to the wife amounted to a precatory trust, and that, there being no evidence as to the object of the trust, it failed upon the death of the wife ; and that the real estate then descended to the heir-atÂÂlaw of the testator. THE question in this case arose upon the construction of the following clause in the will of Ralph Ward Reid, dated the 30th of June, 1820 : " I do hereby will and bequeath to my wife Eliza Reid (subject to the payment of all my just debts and the discharge of the legacies which shall be hereafter mentioned), the whole of all my real proÂÂperty that I may die either actually possessed of, or what must devolve to me upon the decease of my mother, Elizabeth Reid ; and I also bequeath to my said wife the whole of my personal property, of every kind and description, to have, hold and enjoy, in the fullest and amplest manner, for the term of her life, with full power to dispose of all the aforesaid property, both real and personal, as she may judge best and wisest ; relying with implicit confidence on her discretion, and well satisfied in mind that she will make such a distribution or disposal of it as will perfectly accord. with my wishes on that subject, with all of which she is thoroughly acquainted." VOL. V.] EQUITY SERIES. There was no issue of the marriage ; Mrs. Reid survived her husband, and, by her will, dated 21st of May, 1867, she devised all her real estate unto and to the use of Charles Atkinson and William Reid, their heirs and assigns, upon trust out of the rents and profits to pay certain annuities for lives; and, subject to the annuities, she devised all her real estate unto and to the use of her nephew, Charles Atkinson, his heirs and assigns, and appointed Charles Atkinson sole executor of her will. Mrs. Reid died on the 3rd of April, 1869, and thereupon her nephew, Charles Robert Atkinson, in her will called Charles AtÂÂkinson (who was born several years after the death of R. W. Reid) entered into possession of the real estate held by her during her lifetime under the will of her husband, Ralph Ward Reid. The Plaintiff was heir-at-law of Ralph Ward Reid, and filed this bill against Charles Robert Atkinson and William Reid. The bill charged that, under the trusts and limitations of the will of Ralph Ward Reid, Eliza Reid had no greater interest than an estate for her own life inthereal and personal estate thereby devised: that Eliza Reid did not acquire under the will an absolute disÂÂposing power over the real and personal estate, but a power in the nature of a trust to be exercised in accordance with the wishes of the testator as known by her, and for certain purposes preÂÂviously communicated to her by the testator; and that the objects of the special and limited power not being expressed in the will, or in any document referred to therein, the trusts of the will, ulterior to the estate for life of Eliza Reid, failed and became inÂÂeaple of being carried into effect. The case relied upon by the counsel for the Defendants was, that Mrs. Reid took an absolute interest under the will. There was some evidence that R. W. Reid had communicated some wishes with reference to the property to Mrs. Reid, but none as to the nature of those wishes. Mr. Law, Q. C., Mr. May, Q. C., and Mr. Roper, for the plaintiff. Mrs. Reid took an estate for life only, with a superadded power of disposition for certain objects, and those objects not being ascertainable the trust fails, and the heir at law is entitled. Briggs M2 164 THE IRISH REPORTS. [I. R. V. C. Court. v. Penny (1) ; Bernard v. Minshull (2) ; Barnes v. Grant (3) ; Pil 1871. kington v. Boughey (4); Lefroy v. Flood (5); Knight v. Bough RErD ton (6). In Greene v. Greene (7) there was an absolute gift in the ATKINSON. first instance, instead of one for life. It is clear that, if there was a trust, Charles Atkinson could not be an object of it, for he was not born for many years after the date of the will. Mr. Butt, Q. C., Mr. Palles, Q. C., and Mr. Shekleton, for the Defendants. The question is-whether the testator did not intend his wife to have an absolute power of disposition over the property : Briggs v. Penny (1) ; and Bernard v. Minshull (2). The tendency of all the more modern cases is to hold gifts absolute and not precatory trusts. 3PCormick v. Grogan (8) ; Meredith v. Heneage (9); Winch v. Brutton (10) ; Williams v. Williams (11) ; Wood v. Cox (12) ; Beade v. Marsden (13) ; Johnston v. Rowlands (14); Harland v. Trigg (15) ; Wright v. Atkyns (16); Lefroy v. Flood (5) ; Greene v. Greene (7), is the last case and nearly undistinguishable from this. This is a case of a power, which is more favourable to the Defendants than that of a trust; for the onus lies upon a person claiming under a trust to show that he is a cestui que trust ; but, if he claims under an appointÂÂment, the onus lies on the other side to show that he is not an object of the power. THE VICE-CHANCELLOR :- The question in this case is one of some difficulty, arising, as in most of these cases, from the language of the will being pointed to two inconsistent objects ; the one to give an absolute power of disposition ; the other, to ensure the disposition being in favour of (1) 3 M. & G-or. 546. (2) John. 276. (3) 26 L. J. Ch. 92. (4) 12 Sim. 114. (5) 4 Ir. Ch. R. 1. (6) 12 CL & F. 513. (7) I. R. 3 Eq. 90, 629. (8) L. R. 4 H. L. C. 82. (9) 1 Sim. 542. (10) 14 Sim. 379. (11) 1 Sim. N. S. 358. (12) 1 Keen. 317. (13) 1 Drew. 646. (14) 2 De G. & Sm. 356. (15) 1 Bro. C. C. 142. (16) T. & R. 143. Pot. V.] EQUITY SERIES. certain objects. I shall consider this case, in the first instance, as if there was a gift to the wife in the first instance of the whole estate, with the words as to disposition superadded. The words next following, viz., " with full power to dispose of all the aforesaid property, both real and personal, as she may judge best and wisest," would point to an absolute power of disposition. The words which immediately follow, " relying with absolute confidence on her disÂÂcretion," would not suffice to restrict that absolute power. But then come the words, "and well satisfied in my mind that she will make such a distribution or disposal of it as will perfectly acÂÂcord with my wishes on that subject, with all of which she is thoroughly acquainted." In construing these words, it is imporÂÂtant to consider what would be their effect if standing by themÂÂselves. The testator states his wife to be thoroughly acquainted with his wishes as to the disposition of the property, and says that he is perfectly satisfied that she will dispose of the property in acÂÂcordance with these wishes. He then clearly points out a limit to the discretion, for it is to be exercised according to his wishes with which she is acquainted. It is clear, that if the question turned on this last clause standing alone, there would be a precatory trust deÂÂclared, even if an estate in fee were given to the wife by the will. There can be no doubt that the declaration, that the testator is saÂÂtisfied that the devisee will act in accordance with wishes expressed to him, is enough to create a good precatory trust. The cases which have been cited of Briggs v. Penny (1), and Bernard v. .Min-shall (2), show that expressions of confidence in the discretion of the trustee do not prevent the creation of a valid precatory trust. All that is necessary is, to show that the testator intended that the property should be disposed of in the way he had pointed out. What these wishes of the testator were in the present case it is now impossible to ascertain, and, as far as this question is concerned, they do not affect the case. It is evident that the Defendant could not have been himself an object of the testator's bounty. Then the question is, whether these words which, standing alone, would, in my opinion, clearly raise a case of precatory trust, are counteracted by the previous words, as showing such a large discretion given to (1) 3 M. & Gor. 546. (2) 1 John. 276., 166 THE IRISH REPORTS. [I. R. V. C. Court. the wife as would be inconsistent with the existence of such a 1871. trust ? The testator states that he had communicated his wishes REM to his wife, and that he was satisfied that she would make such a ATKINSON. disposition of the property as would be in accordance with them, as he...