Sheridan v O'Reilly

• Jurisdiction: Ireland
• Judgment Date: 10 May 1900
• Date: 10 May 1900
• Court: Court of Appeal (Ireland)

SHERIDAN

and

O'REILLY

Appeal.

Will — Construction — Gift to five legatees — Remainder to eldest male issue — Gift over in default of such issue — Vesting — Persona designata.

Bathurst v. ErringtonELR 2 App. Cas. 698, 709.

Burley's CaseENR Cited 1 Vent. 230.

Davenport v. Hanbury 3 Ves. 257.

Doe d. Burrin v. ChorltonUNK 1 Sc. N. R. 290.

Doe v. GarrodENR 2 B. & Ad. 87.

Domvile v. WinningtonELR 26 Ch. D. 382.

Dubber v. TrollopeENR Amb. 453.

Emperor v. RolfeENR 1 Ves. Sen. 208.

Ex parte WynchUNK 5 D. G. M. & G. 188.

Farrer v. BarkerUNK 9 Ha. 743.

Forth v. ChapmanENR 1 P. Wms. at p. 667.

Freeman v. Parsley 3 Ves. 421.

Goldney v. CrabbENR 19 Beav. 338.

Hampson v. BrandwoodENR 1 Madd. 381.

Jackson v. CalvertENR 1 J. & H. 235.

Knight v. EllisENR 2 Bro. C. C. 570.

Leigh v. Norbury 13 Ves. 340.

Lovelace v. Lovelace Cro. Eliz. 40

Madden v. IkinENR 2 Dr. & Sm. 207.

Meredith v. TreffryELR 12 Ch. D. 170.

Miller v. Seagrove 17 Vin. Ab. Parols H. pl. 4, n.

Roddy v. Fitzgerald 6 H. L. Cas. 823.

Shelley's CaseUNK 1 Rep. 101.

Sibley v. Perry 7 Ves. 522.

386 THE IRISH REPORTS. [1900. Appeal. SHERIDAN v. O'REILLY (1). 1900. April 24, 25. Will—Construction—Gift to five legatees—Remainder to eldest male issue—May 10. Gift over in default of such issue— Vesting—Persona designata. A testator bequeathed his property to trustees upon trust that the rents and profits should be divided into five equal parts, to be paid half-yearly to each of his five nephews, share and share alike, " to be by them enjoyed. during the period of their natural lives, and after the decease of each to their eldest male issue, respectively, of each, and in default of such male issue such share to revert to the remaining legatees, or their eldest male issue, to be divided equally every half-yearly term among them." All the testator's nephews survived him. Three of them died subsequently, intestate and unmarried ; one (the husband of the plaintiff) died, having had a son who preÂdeceased him, intestate and unmarried ; and the fifth nephew was still alive: Held, by Porter, M.R., (1) That the gift of the income of the property amounted to a gift of the corpus ; (2) That the gift after the decease of each to their eldest male issue, respectively, of each, meant to the eldest male issue living at the decease of each ; (3) That the words " remaining legatee" meant surviving legatee, and that accruing shares went absolutely to such legatee ; (4) That the plaintiff was entitled, pursuant to the foregoing declarations, as personal representative of her husband, F. S., to his accrued shares of the personalty, but as representative of her son she took nothing. Held, on appeal, as to the 2nd declaration of the decree, and as to so much of the 4th declaration as declared that as personal representative of her son the plaintiff took nothing (varying the decree of Porter, M.R.), that the son of F. S. took a vested interest at birth, and that the gift to him was a gift to a persona designata, and. not to a class. BY his will, dated the 9th January, 1846, Farrell O'Reilly bequeathed all his property to the Rev. Farrell Sheridan, the Rev. Francis O'Farrell, and to his brother James Sheridan, and his son Patrick Sheridan, and to the testator's brother Thomas O'Reilly, and his son Thomas O'Reilly (the younger), upon certain trusts which he expressed in the following words—" I will that the yearly income rents issues dividends or profits of all my Appeal. property be divided into five even and equal parts to be paid half 1900. yearly at the most convenient period after falling due, say SEIERIMIN February and August, to each of my five nephews as undermen- O'REILLY. tioned share and share alike; I will one-fifth part of said yearly inÂcome to Edmund O'Reilly one-fifth part to John O'Reilly one-fifth part to Charles O'Reilly one-fifth part to Hugh O'Reilly sons of the said Thomas O'Reilly my brother and the remaining fifth part to Farrell Sheridan son of the said James Sheridan to be by them enjoyed during the period of their natural lives and after the decease of each to their eldest male issue respectively of each and in default of such male issue such share to revert to the remaining legatees or their eldest male issue to be divided equally every half yearly term among them." The testator appointed the Rev. Farrell Sheridan and James Sheridan executors, or in the event of their decease, the Rev. Francis O'Farrell and Patrick Sheridan. The testator left a considerable amount of personal property and also a small amount of real estate in the county of Cavan. The testator died on the 6th November, 1846, and probate was granted to the Rev. Farrell Sheridan, and upon his death in 1850, letters of administration de bonis non were granted to the Rev. Francis O'Farrell and the Rev. Patrick Sheridan. On the deaths of the Rev. Francis O'Farrell and the Rev. Patrick Sheridan, and on the renunciation of letters of administration by Thomas O'Reilly the younger (the surviving legatee in trust named in the will of Farrell O'Reilly) letters of administration of the personal estate of Farrell O'Reilly were granted to Hugh O'Reilly the defendant and Farrell Sheridan. Of the legatees named in the will, Edmund O'Reilly died intestate and without issue in the year 1850, John O'Reilly died intestate and unmarried in the year 1850, Charles O'Reilly died intestate and unmarried about 1845, Hugh O'Reilly was still alive and unmarried, and Farrell Sheridan died in December, 1897, leaving him surviving his widow, Rose Sheridan, the plainÂtiff, and three daughters : he had also one son John James .Sheridan, who died a minor, unmarried, in 1870. In September, 1899, letters of administration with the will 388 THE IRISH REPORTS. [1900.. A ',peg . annexed of Farrell Sheridan, were granted to the plaintiff,. 1900. Rose Sheridan, and also letters of administration to John James SHERIDAN Sheridan. v • O'REILLY. Farrell Sheridan received half the dividends arising from the invested property up to the time of his death, the other half being paid to the said Hugh O'Reilly. Mrs. Rose Sheridan issued an originating summons for the purpose of having the construction of the will of Farrell O'Reilly decided by the Court, and the questions raised were : 1. Whether the gift in the will of the income amounted to a gift of the corpus? 2. Whether the gift, " after the decease of each to their eldest male issue respectively of each," meant to the eldest male issue living at the decease of each or eldest male issue born ? 3. Whether " remaining legatee " means surviving legatee,. and whether accruing shares went absolutely to such legatee ? 4. Whether the plaintiff as personal representative of Farrell Sheridan and administratrix of John James Sheridan, in the. events which had happened, was entitled to the following shares, viz. 5. As administratrix of Farrell Sheridan, the sole next-of-kin of his son John James Sheridan, and as administratrix of John James Sheridan to one-fifth share. 6. On the death of Edmund O'Reilly, one of the legatees, to one-fourth of one-fifth. On the 13th February, 1900, Porter, M.R., gave judgment and decided : 1. That the gift of the income of the property amounted to a gift of the corpus. 2. That the gift, " after the decease of each to their eldest male issue respectively of each," meant to the eldest male issue living at the decease of each. 3. That the words " remaining legatee " meant surviving legatee, and that accruing shares went absolutely to such legatee. 4. That the plaintiff was entitled, pursuant to the foregoing declarations, as personal representative of her husband, Farrell Sheridan, to his accrued shares of the personalty, but as represent tative of her son, she took nothing. VoL. I.] CHANCERY DIVISION. 389 The judgment of THE MASTER OF THE ROLLS was as Appeal. follows :— 1900. The principal question in the case is what meaning is to be SHERIDAN v. placed upon the word "issue" in this will. That it is a word of very O'REILLY. flexible import cannot be questioned. It may mean children, or Porter, M.R. it may include all descendants. If the former meaning is to be placed upon it here, it is a word of purchase. If the latter, it must be construed as equivalent to heirs of the body. Male issue would then be the same as heirs male of the body, and as each nephew took an estate for life in the same instrument the rule in Shelley's Case (1) would apply, and he would be at once tenant in tail male so far as the lands are concerned. The rule that words, which in a will would confer an estate tail in realty will give an absolute interest in personalty, is not strictly accurate in all cases ; and the distinction is clearly settled, that whereas a devise of lands to one for life, and after his...