Sullivan v Sullivan

• Jurisdiction: Ireland
• Judgment Date: 04 February 1903
• Docket Number: (1902. No. 1101.)
• Date: 04 February 1903
• Court: Chancery Division (Ireland)

Sullivan

and

Sullivan.

M. R.

(1902. No. 1101.)

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.

1903.

Will — Secret trust.

A testator left all his property to his wife, resting satisfied that she would faithfully carry out his wishes regarding the same in the interest of their children, the particulars of which she was aware of. The will was witnessed by two of the children. The testator about the same time wrote a letter addressed to his wife, which stated his wishes as to the disposal of the property he had left to her by his will, and contained the following sentence:—“I think this disposition is as fair as I can make it, and I hope it will satisfy all; but you, of course, may modify it if you think or find it desirable.” Shortly afterwards the testator read out the will and letter in the presence of his wife and children, and she acquiesced in it:—

Held, that the circumstances were such as would make the letter a binding trust, if it were intrinsically capable of creating a trust; but that, by reason of the sentence in question, there was no binding trust.

Adjourned Summons.

Marcus Clement Sullivan by his will, dated August 2nd, 1897, appointed his wife Charlotte Sullivan executrix, and bequeathed to her all his property, resting satisfied she would faithfully carry out his wishes regarding the same in the interests of their children, the particulars of which (his wishes) she was aware of. The will was witnessed by his son Edward Stewart Sullivan, and his daughter Clementina Mary Sullivan. The testator died on April 5th, 1902, without having revoked or altered his will, which was proved by his executrix on May 20th, 1902. After the death of the testator his will was found in an envelope, which also contained a letter in his handwriting addressed to his wife, dated July 31st, 1897, which was as follows:—

“My Dear Charlotte,—I have been putting off making my will since Dan's death, principally on account of the difficulty in getting executors who would take an interest in our affairs, but now that I am about to take this trip to Switzerland I think it right to leave my affairs settled, not that I have any presentiment of anything happening, as I trust in God who has been so good to me all my life that He will protect me and the girls through our journey, and bring us home again with renewed health. But if it should please God to call me, I desire no unnecessary expense may be incurred by my funeral, and if I should die abroad I am to be buried there. If at home you will find the cemetery papers enclosed. In a previous will I appointed Dan and Edward executors, but as circumstances are changed, I have decided on leaving everything to you and appointing you my sole executrix.

This applies not only to my assets, but also to my reversionary interest in my brother Dan's estate, and I write this memorandum for your guidance in carrying out my wishes regarding the same. Mr. Denning, my solicitor, will advise you on legal matters, and will carry out the necessary formalities of getting probate, etc., of my will. You will have Edward to consult, and your brother will, no doubt, advise you if you find it desirable to ask him. Messrs. Wright, my stockbrokers, have been always kind, and will tell you what is best to do with the shares. My esteemed friend Joe Woodworth will, I am sure, undertake the accounts, but he must do so only by accepting his usual professional fees, he having done enough for me from friendship sake.

Now, the reason I make my will in this way is, you will not have to sell out the investments unless you are advised as an act of prudence to do so, and any of them you sell you will have the power of reinvesting in other than Government securities. There are many safe debentures and preference shares which return at least four per cent. interest. With reference to Dan's estate, you will get advised whether you should allow the present investments to stand or sell them and put the proceeds in Government funds, or such other securities sanctioned by law. In the event of letting them remain you will have to get a written consent from Mrs. E. C. Sullivan (Mr. Denning will see to this for you). As to my wishes for the disposal of our property, you will have to get your will made as soon as you can, and ask your brother to act as executor with Edward, and if you can get another as well it would be advisable. I wish the following arrangement to be made in the meantime, that is on my death. Out of the proceeds of the insurances on my life in the Scottish Widows' Society (the policy of which is deposited with the Society), and the Provident Clerks' Association when realized you are to give Edward £500. This will enable him, I hope, to stock his farm and pay you the interest on the mortgage for £1200, which I have on Ballinakill; the rest of the money I advanced to him and the interest due on it is a gift, and does not count in my assets. You will give Robert £500, which will give him a start in business, perhaps in partnership with his cousin. If you should hear from Lewis within two years from my death (otherwise you may assume he is dead), you will give him £500, and £50 due him as his uncle's bequest. The money I lent him is a gift. If any of the girls should marry in your lifetime, you can give her or them such portion as you think right, and by your will I wish you to dispose of the remainder of my assets as follows:—that is, my own property apart from Dan's. Clemmie to have this house (No. 26), Kittie to have No. 27, and Violet...