O'Reilly v Walsh

• Jurisdiction: Ireland
• Judgment Date: 20 November 1872
• Date: 20 November 1872
• Court: Court of Appeal in Chancery (Ireland)

Rolls.

O'REILLY

and

WALSH AND OTHERS.

In re Bartholomew 1 Macn. & G. 354.

Lister v. BradleyENR 1 Hare, 10.

Phillipo v. Munnings 2 M. & Cr. 309.

Bullock v. DownesENR 9 H. L. C. 1.

Obee v. BishopUNK 1 D. F. & J. 137.

Tyson v. JacksonENR 30 Beav. 384.

Hartford v. Power Ir. R. 2 Eq. 294.

Burdick v. GarrickELR L. R. 5 Ch. 233.

Holland v. Clarke 1 Y. & Col. C. C. 169.

Piggott v. JeffersonENR 12 Sim. 26.

Woolly v. ClarkeENR 5 B. & Ald. 745.

Murray v. E. I. CompanyENR 5 B. & Ald. 204.

Perry v. Jenkins 1 M. & Cr. 118.

Douglas v. ForrestENR 4 Bing. 486.

Archbold v. ScullyENR 9 H. L. C. 360.

Bullock v. DownesENR 9 H. L. C. 24.

Byrchall v. BradfordUNK 6 Mad. 235.

Dix v. BurfordENR 19 Beav. 409.

Will — Construction — Vested legacy — Residuary gift — Statute of Limitations — 3 & 4 Wm. 4, ss. 6, 40 — Administrator.

VOL. VI.] EQUITY SERIES. position or appointment over them ? The shares she purports to give are, to my mind, sufficiently identified by the mention of the name of George William Braddell, and the number, twelve, with those settled by the deed of 1841. It is clear that if she had accurately described the twelve shares as invested in the name of George William Braddell alone, and bequeathed those twelve shares, as she has done, the gift would fail, as many others have failed, where testators have given what they had no power to bequeath. I therefore answer the 4th question in these terms-that, having regard to the facts stated, the bequest of the twelve shares is not a valid bequest of those twelve shares, or of any other shares in the capital stock of the Belfast Banking Company. Solicitors for the Plaintiff : Messrs. Johns, Hewitt, 4 Johns. Solicitor for the Defendant : Mr. _Robert R. Todd. At O'REILLY v. WALSH AND OTHERS. Will-Construction-Vested legacy-Residuary gift-Statute of Limitations 3 4 4 Wm. 4, ss. 6, 40-Administrator. An executor who has, under the terms of the will, active duties as a trustee to perform in respect to the raising and investment of a legacy bequeathed upon trust for a minor, by assenting to it becomes an express trustee, so as to save the bar of the Statute of Limitations (3 & 4 Wm. 4, c. 27, s. 40). A testator, by his will, left all his real and personal estate to S. G., his executor, upon trust to raise, out of the personal estate, £1500 and invest that sum, in the events which happened, for the use of his son, to be paid to him with interest on his attaining twenty-one ; and in trust to raise £1000 and hand it over to his wife in certain amounts therein specified ; and he authoÂÂÂrized J. G. to permit his wife to carry on his business, and to dispose of the profits for the maintenance of herself and his children; but if his wife should be desirous to retire from business, or in the event of her marrying, then upon trust to convert all his property not theretofore disposed of in raising the said two sums of £1500 and £1000, and invest the same for the use of his son, to be paid to him on attaining twenty-one ; and, in the event of his son's death beÂÂÂfore twenty-one without leaving issue, to the use of his daughter, with proÂÂÂvisions for maintenance ; and, in the event of the death of both his children before they attained twenty-one, to pay the wife £500, in addition to the sum of £1000; and upon further trust, upon such events and contingencies, that J. THE IRISH REPORTS. G. should retain, to his own use and benefit, all the residue of his real and. personal estate ; and he bequeathed to his son all the residue of his personal estate for his own sole use and benefit. J. G. proved the will, and assented to all the bequests ; the testator's son and daughter died in 1834, both infants, the son being the survivor, and administration to the son was granted to the PlainÂÂÂtiff in 1871: the widow died in 1836, having married a second time, and J. G. died in 1869 : Held, 1. That the testator's son took a vested interest in the £1500. 2. That J. G., by assenting to the legacy of £1500, was an express trustee of it, so as to save the bar of the Statute of Limitations. 3. That J. G. took the residue for his own benefit. BILL, praying that the trusts of the will of James Downey should be declared and carried into execution, and his estate administered : and a declaration that the Plaintiff was entitled, in the events which had happened, to the sums of £1000 and £500, bequeathed by the will to James Downey, the younger, and his sister, and also to the residue of the testator's estate after payment of the said sums and the legacies to his widow, on payment of his debts and funeral and testamentary expenses ; and that John Gormon was, at the time of his death, a trustee for the Plaintiff in respect of the sums or sum to which the Court should declare the Plaintiff so enÂÂÂtitled, and consequential relief. James Downey, being possessed of real and personal property amounting in value to about £14,000, made his will on the 11th June, 1833, as follows :- "I give, devise, and bequeath unto the Rev. John Gormon all my real and freehold property, together with my whole furniture, money, plate, goods, chatÂÂÂtels, stock in trade, funds, securities for money, and all other my personal estate and effects, of what nature or kind soever, upon trust, that he, the said John Gormon, shall, as soon as conveniently may be after my decease, raise and levy, out of all such ready money, plate, goods, chattels, stock in trade, funds, securiÂÂÂties for money, and all other the personal estate and effects whereof I may die seised or possessed of, the interest and full sum of 31500 ; and shall and do thereupon, with all convenient speed afterwards, invest and place the same, and every part thereof, either in the public stocks or Government funds, or upon private security, charged upon either freehold, copyhold, or leasehold property, of sufficient value, at the best and most improved interest that can or may be had or gotten for the same, to and for the use of my dear children, in the shares and proportions, and to be payable and paid to them respectively at the times hereinafter mentioned-that is to say, the sum of £1000, part thereof, to and VOL. 1I.] EQUITY SERIES. for the use of my son, James Downey, and to be paid and payable to him with the interest, dividends, and proceeds to arise and become due thereon, on his attaining his full age of twenty-one years, and the sum of £500, the residue of the said sum of £1500, to and for the use of my daughter, Catherine Downey, and to be paid and payable to her, with the interest, dividends, and proceeds, to arise and become due thereon, on her attaining her full age of twenty-one years, or on her marriage, with the consent of my said trustee ; Provided always that if my said son shall die without leaving lawful issue before he shall attain the said age of twenty-one years, or my said daughter shall die before she shall attain her age of twenty-one years without being married, with the consent aforesaid, then the share of him or her, so dying, shall go to, accrue, and belong and vest in the survivor, and be paid, assigned, and transferred to him or her, at the times and in the manner hereinbefore mentioned ; and also upon this further trust, that he, the said John Gormon, do and shall raise and levy the interest and full sum of £1000 out of the residue of all such ready money, plate, goods, chattels, funds, securities for money, and all other the personal estate and effects whereof I may die seised and possessed of, and pay and hand over the same to my wife, Catherine Downey, otherwise Lyons, whenever and so soon as she may be minded or desirous to retire from business, or in the event of her hereafter intermarrying; but I hereby authorize and direct the said John Gormon, &c,, to permit and suffer my said wife to continue and carry on the trade and business in the premises, and after the same manner as the same is now carried on by me, &c. ; and that he shall and may be allowed to apply and dispose of the profits and proceeds arising therefrom, or so much or such part or parts thereof as she may deem necessary, for her own clothing, support, and maintenance, and for the support, clothing, maintenance, and education of my said children ; but if my said wife should be minded or desirous to retire from the said trade or business, or in the event of her hereafter intermarrying; then upon this further trust, that, from and immediately after either of said events happening, he, the said John Gormon, &c., shall, immediately after, sell and convert into ready money all such parts of my...