Sheehy v Nugent

• Jurisdiction: Ireland
• Judgment Date: 30 May 1914
• Date: 30 May 1914
• Court: Chancery Division (Ireland)

In re Gun.

Sheehy

and

Nugent.

M.R.

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.

1915.

Will — Construction — Power of Appointment amongst Nephews and Nieces and other relations of Donee — Power of Selection — Default of Appointment — Class to take and when to be ascertained — Vesting.

A testator bequeathed all his property to his wife in the first place, and after her death to his “lawful nephews and nieces, meaning such nephews and nieces and other relations as she deems fit and suitable.” There was no gift in default of appointment. The testator's widow by her will left part of the property to two nieces, and part to a grandnephew. The remainder of the property was unappointed. The testator's only next-of-kin were nephews and nieces, some of whom died in the lifetime of his widow.

Held, (1) That the power of appointment was a power of selection, and not a power of distribution, and that therefore the word “relations” was not confined to next-of-kin, and that the appointment to the grandnephew was good.

(2) That the class to take in default of appointment was confined to nephews and nieces and other relations, if any, who were next-of-kin; and that members of the class were to be ascertained at the death of the testator, and took vested interests then.

Adjourned Summons.

The following statement of facts is taken from the judgment of the Master of the Rolls:—

“In this case several questions have arisen under a very short will made by Hugh Murray Gun on the 8th February, 1883.

The material part of the will is as follows:—‘I will and bequeath all my houses and lands and stock and farming utensils and moneys and whatever else I die possessed of to my wife in the first place then after her death to my lawful nephews and nieces meaning such nephews and nieces and other relations as she deems fit and suitable.’ There was no gift in default of appointment.

The testator died on the 18th February, 1883, leaving Julia Murray Gun, his widow, surviving. The will was proved by the Rev. David Quin, one of the executors. He died leaving the estate not fully administered, and letters of administration of the personal estate unadministered, with the will annexed, were granted on the 7th March, 1914, to Frances Sheehy, a niece of the testator and the plaintiff in the matter. The testator's widow survived him for many years, and died on the 31st March, 1913. She made no disposition of her husband's estate save by her will, which she made on the 24th November, 1888. By it she purported to dispose, under the powers given to her by her husband's will, of specific parts of his property. Some of the persons in whose favour she made such disposition died in her lifetime; others survived her. For the purpose of deciding what was the effect of her will as an execution of the power, it will only be necessary to mention the dispositions in favour of those who survived; the others having failed.

To the plaintiff, Frances Sheehy, and the defendant, Jane Nugent, both of whom are nieces of Hugh Murray Gun, she left certain farms. No question arises as to these. The appointees are clearly objects of the power. To the son of the plaintiff, viz., George Fitzgerald Sheehy, who was a grandnephew of Hugh Murray Gun, she left another farm in pursuance of the power contained in his will. This appointment is challenged on the ground that George Fitzgerald Sheehy was not an object of the power, not being a nephew or a relation within the meaning of the will. There was other property of Hugh Murray Gun, which was not appointed, partly by reason of the deaths of the appointees in the lifetime of Julia Murray Gun, and partly because she made no appointment of it.”

Conner K.C. for the plaintiff, Frances Sheehy, a niece and administratrix de bonis non of the testator:—

The first question is as to the validity of the appointment to George F. Sheehy, a grand-nephew of the testator, who was not a next-of-kin. The testator at the date of his death had no next-of-kin except nephews and nieces. Are the words “my lawful nephews and nieces meaning such nephews and nieces and other relations as she deems fit and suitable” to be construed as meaning such lawful nephews and nieces and next-of-kin as she deems suitable, or are they to be construed as including remoter relations? It is submitted that the widow had a power of distribution, and not a power of selection, and that but for Lord Selborne's Act (37 & 38 Vict. c. 27) she would have been bound to give something to each of the objects of the power. If it is a power of distribution, then it is well settled that the words “relations” is to be confined to next-of-kin: In re Deakin; Stanley v. Eyres (1), where the words were “to my wife's relations as she may direct”: In re Patton; Dunlop v. Greer (2), where the words were “to and amongst my blood relations in such shares as he may think fit.”

The second question is, who are entitled to the unappointed part of the property. It is clear that relations in this connection are confined to next-of-kin: Wilson v. Duguid (3); and it is submitted that the only persons who take are those nephews and nieces who survived the widow.

Megaw, for the defendant, G. F. Sheehy, a grandnephew of the testator:—

The power is a power of selection, and the grandnephew is a proper object of the power; he was a relation not a nephew. The testator was his own dictionary; he says what he means by his

nephews and nieces. “Relations” here can only mean relations other than nephews or nieces. The word “such” is used here, showing that she had a power of selection. The word “relations” will be construed as equivalent to next-of-kin in case of default to exercise a power of appointment, but not for the purposes of appointment, where it may have a different meaning: Grant v. Lynam (1). The donee can go outside the class of next-of-kin, and she has done so here. G. F. Sheehy makes no claim in default of appointment; he is a relation for the purpose of appointment, but not a relation for the purpose of default of appointment.

W. G. Gibson K.C. (Sealy with him), for the defendants J. R. Dewar and J. C. Hackett, executors of R. L. Evans, a nephew of the testator, who died in the lifetime of the widow:—

Three...