Rowe v Law

Judgment Date01 January 1980
Neutral Citation1978 WJSC-SC 951
CourtSupreme Court
Docket Number[1974 No. 228 Sp.],(162/1975)
Date01 January 1980
High - 12.6.75





1978 WJSC-SC 951

O'Higgins C.J.

Henchy J.

Griffin J.




JUDGMENT delivered the 20th day of January 1978by O'HIGGINS C.J.


The testatrix, the late Mary Doran, died on the 10th June 1972, having made her last will and one codicil on the 6th June 1967 of which probate was granted to Robert Kenneth Law, a solicitor and the first-named Defendant, on the 6th March 1973. The testatrix was twice married. She was first married to Patrick Rowe who died many years before the date of her will. She then married Walter Doran from whom she was at the date of her will and had been for some years before it, separated. She had no family. For many years prior to the date of her will, James Morgan, the second-named Defendant and Mary Morgan the third-namedDefendant,resided with the testatrix and worked as labourer and domestic help, respectively. They so resided as James Morgan and Mary Germaine because they were then unmarried. They have married since the death of thetestatrix.


These proceedings have been brought by the testatrix's two brothers-in-law who are named in the will as residuary legatees and devisees. They seek to determine certain questions which arise on the construction of the main portion of the will. This portion of the will reads as follows:

"I give devise and bequeath unto my trustees all my real and personal estate of whatsoever nature and wheresoever situate of or to which I shall die seized possessed of or entitled to (hereinafter called The Trust Fund) upon the Trusts following that is to say:-"

1. Upon Trust in the first instance to discharge thereout my just debts, funeral and testamentary expenses and subject thereto

2. Upon further Trust to set aside out of the capital monies of the Trust Fund a sum of £1,000 which said sum I direct shall in the first instance be utilised or applied by my Trustees in the purchase and furnishing of asuitable cottage residence for the use and occupation of James Morgan and Miss Mary Germaine both of whom are presently residing with me, during their joint lives and during the life of the survivor of them and subject thereto


UPON FURTHER TRUST as to any balance then remaining to invest the same in some Trustee Security the income to arise from which shall in like manner be paid to the said James Morgan and Mary Germaine during their joint lives and to the survivor of them during his or her lifetime and subject thereto


UPON FURTHER TRUST as and from the date of the death of the survivor of them the said James Morgan and Mary Germaine to pay and transfer the said sum of One Thousand Pounds or the investments for the time being representing the same to the Parish Priest for the time being of the Parish of Castledermot same on its receipt to be utilised by him for such purposes generally connected with the said Parish as he shall in his discretion think fit and subject thereto


UPON FURTHER TRUST to pay to the Parish Priest for the time being of the said Parish of Castledermot a sum of One Hundred Pounds same on its receipt to be utilised by him in the saying of Masses in the Republic of Ireland for the repose of the Souls of myself and my family at an Honorarium of £1 per Mass and subject thereto


UPON FURTHER TRUST to stand possessed of the Trust Fund then remaining to pay and transfer the same both as to capital and income to my brother-in-law the said Father Francis Roe aforesaid and my brother-in-law the Reverend Father Augustus Roe at present residing at Columban Fathers, Holy Rosary Church, Negros, Occidental, Phillipine Islands in equal shares as tenants in common absolutely."


In the construction summons the questions raised are as follows:

"Does the phrase "any balance then remaining"contained in paragraph 2 of the said will mean"

(a) any balance remaining out of the sum of one thousand pounds after the purchase and furnishing of a suitable cottage residence for James Morgan and Mary Morgan (in will referred to as Mary Germaine) or

(b) any balance remaining out of the capital monies of the Trust Fund after the purchase and furnishing of such cottage."


If these questions were to be determined in accordance with the law prior to the Succession Act, 1965. certain principles of construction would have applied. These would have ordained that the meaning of the wordsused was to be sought for in the will itself, that the words used should be applied in accordance with their plain grammatical meaning and that extrinsic evidence would be inadmissible to assist in the construction. As to the inadmissibility of extrinsic evidence the 13th edition of Theobold on Wills contains the following paragraph at paragraph 25. Iquote:

"This is a basic principle of long standing which has a number of exceptions and much depends on whether or not the exceptions can be prayed in aid. Where the meaning of the will, from the words used, is clear, it is not possible to look at extrinsic evidence. However, when the meaning is not clear, it may be permissible to "sit in the testator's armchair" and take account of the circumstances surrounding the testator at the time of making the will in order to assist in its interpretation. It may thus be possible to look at the facts known to the testator at the time he made his will concerning the persons and property mentioned therein as an aid to construction. The range of admissible surrounding circumstances may determine the nature of the result. Extrinsic evidence may also be admissible in one or two other cases, for example, to explain latent ambiguities or to rebut certain presumptions of law."


A further passage at paragraph 427 is as follows. I quote:

"It has been said, that to construe the will of a testator"you may place yourself, so to speak, in his armchair and consider the circumstances by which he was surrounded when he made his will to assist you in arriving at his intention." But this proposition must be accepted with several reservations. What has to be done is first to construe the will. The meaning placed upon the language used as the result of this process cannot be altered by reference to the surrounding circumstances when the will was executed. The procedure is not - first ascertain the surrounding circumstances and with that knowledge approach the construction of the will, but first construe the will; if the meaning is clear, surrounding circumstances cannot be looked at to throw a doubt upon that meaning, or to give the will a differentmeaning."


It seems to me that these two passages set out correctly the common law with regard to the construction of a will. Applying these statements of the law to the will of this testatrix, what is the position? One looks for the meaning of the words "as to any balance then remaining" in the will itself and one applies these words in their ordinary grammatical sense. Extrinsic evidence would not be admissible unless the meaning were obscure orunless ambiguities existed or in order to rebut certain presumptions of law. In this case no presumption of law requires rebuttal. Is there then in the language used any ambiguity or any uncertainty? It seems to me that there is not. The testatrix in relation to the setting aside of£1,000 out of the Trust Fund appears to have established three separate trusts providing for its application and eventual disposal. These three trusts are under the same numbered paragraph in the will and provide first for the initial use of £1,000, then "as to any balance then remaining" for the investment of such in some trustee security and the payment of the income to James Morgan and Mary Germaine during their lives. Then there is provision that after the death of the survivor the £1,000 or the investment representing the same is to go to the Parish Priest. In all of this the meaning appears to be clear. There exists no such ambiguity as would permit the introduction of extrinsic evidence. No one could doubt looking only at the terms of the will itself that the words "as to any balance then remaining" referonly to the balance then remaining of the £1,000. Therefore, in accordance with the law as it existed prior to the Succession Act extrinsic evidence would be excluded. This will would be construed according to the plain meaning of the words and it would be held to mean that merely the balance of £1,000 went to James Morgan and Mary Germaine for their lives. It would also be construed as giving the residue of the Trust Fund to the Plaintiffs absolutely and immediately. This would be so even if clear and unequivocal evidence were available to show that such was not what the testatrix wished or intended by the words she used.


Such a state of the law while having the advantage of finality also had the obvious and grave disadvantage of, at times, frustrating the known intention of the testator. The Law Reports abound with cases in which this must have occurred. As examples I will refer to two. In Higginsv. Dawson 1902 A.C. p.1 the testator when he made his will was the owner of some real estate, plate, and china and of two mortgage debts amounting to£13,187, and of nothing else except the accruing interest on the mortgage debts. By his will he made gifts of the real estate, plate and china. He then gave a number of legacies amounting to about£10,000. These were followed by a gift of the residue of the mortgage debts after payment of his debts to a charity. The question was whether the residue of the mortgage debts meant what might remain of the mortgage debts after paying thereout first the legacies and secondly the debts, or whether it meant what remained after paying debts only. Upon the latter construction, if the testator had died the next day, all the legacies...

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