The 11 & 12 Vict. C. 48, and The Trusts of The Will of John Bourke, in Relation to A Legacy Thereby Bequeathed

• Jurisdiction: Ireland
• Judgment Date: 18 November 1891
• Docket Number: (1891. No. 13,047.)
• Date: 18 November 1891
• Court: Chancery Division (Ireland)

Chancery Division.

(1891. No. 13,047.)

IN THE MATTER OF THE 11 & 12 VICT. c. 48, AND IN THE MATTER OF THE TRUSTS OF THE WILL OF JOHN BOURKE, IN RELATION TO A LEGACY THEREBY BEQUEATHED.

Maddison v. ChapmanENR 4 K. & J. 709.

Smart v. ClarkENR 3 Russ. 365.

In re Neary's Estate 7 L.R. Ir. 311.

In re Parker, Barker v. Barker 16 Ch. Div. 44.

Bland v.WilliamsENR 3 My. & K.411.

Davies v. FisherENR 5 Beav. 201.

In re Parker, Barker v. Barker 16 Ch. Div. 44.

Fox v. FoxELR L. R. 19 Eq. 286.

Hanson v. Graham 6 Ves. 238.

Bevan's Trusts 34. Ch. Div. 716.

In re Holt's Estate 45 L.J. Ch. 208.

Watson v. HayesENR 5 My. & Cr. 133.

Harison v. GrimwoodENR 12 Beav. 192.

Bree v. PerfectENR 1 Coll. 128. 130.

Pulsford v. Hunter 3 Br. C. C. 416

In re Ashmore's TrustsELR L. R. 9 Eq. 99.

Re Hart's TrustsENR 3 De G. & J. 195.

Lord Bindon v. Earl of SuffolkENR 1 P. Wms. 96.

Turner v. Moore 6 Ves. 556.

Cambridge v. Rous 8 Ves. 12.

Crigan v. BainesENR 7 Sim.40.

Schenck v. Agnew 4 K. & L. 405.

In re Neary's EstateUNK 7 L. R. Ir. 311.

Ingham v.Ingham I. R. 11 Eq. 102.

Elliott v. Smith 22 Ch. Div. 236.

Watson v. WatsonELR 7 P.D. 10.

Dugdale v Dugdale 38 Ch. Div. 176.

locke v. Lamb.ELR L. R. 4 Eq. 372.

Leake v. RobinsnENR 2 Mer. 363.

In re Parker; Barker v. Barker 16 Ch. Div. 44.

Walker v. MouerENR 16 Beav. 365.

Gardiner v. SlatorENR 25 Beav. 509.

Thomas v. WilberforceENR 31 Beav. 299.

Watson v. HayesENR 5 My. & Cr. 125.

In re Ashmore's TrustsELR L. R. 9 Eq. 99.

Pulsford v. Hunter 3 Br. C. C. 416.

In re Barker; Barker v. Barker 16 Ch. Div. 44.

In re Grimshaw's Trusts 11 Ch. Div. 406.

Watson v. HayesENR 5 My. & Cr. 125

Fox v. Fox.ELR L. R. 19 Eq. 286.

Bevan's Trusts 34 Ch. Div. 720.

Davies v. FisherENR 5 Beav. 201.

Bland v. WilliamsENR 3 My. & K. 411.

Isaacson v. Webster 16 Ch. Div. 47.

Hanson v. Graham 6 Ves. 238.

Leake v. RobinsonENR 2 Mer. 363.

Bell v. CadeENR 2 J. & H. 122.

Billing v. Sandom 1 Br. C.C. 393.

Bull v. PritchardENR 1 Russ. 213.

Vaudry v. GeddesENR 1 Russ. & M. 203.

Wilson v. KnoxUNK 13 L. R. Ir. 349.

Spencer v. WilsonELR L. R. 16 Eq. 501.

Jeffray v. TredwellELR [1891] 2 Ch. 640.

Neary's EstateUNK 7 L. R. Ir. 311.

Will — Construction — Absolute gift — Condition subsequent — In the event of death — Executory gift over — Contingency — Death in testator's lifetime — Restraint on alienation — Repugnancy.

VOL. XXVII.] CHANCERY DIVISION. 573 IN THE MATTER OF THE 11 & 12 VICT. C. 48, AND IN THE M. R. MATTER OF THE TRUSTS OF THE WILL OF JOHN 1891' BOURKE, IN RELATION TO A. LEGACY THEREBY BEQUEATHED. Nov. 17, 18. (1891. No. 13,047.) Will-Construction-Absolute gam-Condition subsequent-In the event of death--Executory gift over-Contingency-Death in testator's lifetime..- .Restraint on alienation-Repugnancy. The will of a testator contained the following proviso : -" I give, devise, and bequeath unto my brother, J. B., now, as I believe, about sailing for America from H. in France, the sum of £2500 sterling, to be invested in such of the securities of Great Britain and Ireland as my executors shall think most safe, and the interest thereof to be paid from time to time to the said J. B., without power of his anticipating, mortgaging, or alienating the same, or any portion thereof. And in the event of the death of the said J. B. it is my desire that the interest of the aforesaid sum be paid for the support and education of his children, until they arrive respectively at the age of twenty-five years, at which time each shall receive an equal part of the said sum of £2500 aforeÂsaid." The will further provided that in case his brother the said J. B. should die without heirs, and in case his children should die without heirs before the age of twenty-five years, that the aforesaid sum of £2500 invested as aforesaid, should be paid over to 'C., or his successor in the office and duties of Roman Catholic Archbishop of Dublin, for certain charitable and religious uses, and he appointed C., or his successor in his office, his residuary legatee, the residue to be applied for the religious and charitable uses previously described. J. B. survived the testator, and died in 1883, leaving a widow and six children surviving, three of whom had been born. at the date of testator's death, and were now of the age of twenty-one years. Administration to the estate of J. B. was granted to his widow. The sum of £2375 stock, representing the £2500 devised by the testator, was in Court, to the credit of the matter. A petition was presented by the eldest child of J. B., asking for payment to him of one-sixth part of the fund in Court, as being so entitled under the will of the testator Held, that there was, in the first place, a gift of the entire sum to J. B. absolutely, which had not been cut down to a lesser estate, and that the restraint on alienation was repugnant and inoperative. That J. B., having survived the testator, the gift over did not take effect, and consequently his administratrix was entitled to the fund in Court. 2 X 2 LAW REPORTS (IRELAND). [I.. R. I. When an absolute gift is followed by words importing a contingency, it is not thereby cut down to a life estate, without these words being accompanied by other circumstances than the mere fact that there is a gift over on the death of the legatee. BY his will dated the 19th March, 1869, John Bourke gave, devised, and bequeathed to his brother Joseph Bourke, " now, as I believe, about sailing for America from Havre, in France, the sum of £2500 sterling, to be invested in such of the securities of Great Britain and Ireland as my executors shall think most safe, and the interest thereof to be paid from time to time to the said Joseph Bourke, without power of his anticipating, mortgaging, or alienÂating the same, or any portion thereof. And in the event of the death of the said Joseph Bourke, it is my desire that the interest of the aforesaid sum be paid for the support and education of his children until they arrive respectively at the age of twenty-five years, at which time each shall receive an equal part of the said sum of £2500 aforesaid. And in case my brother, the said Joseph Bourke, shall die without heirs, and in case his children shall die without heirs before the age of twenty-five years, then, and in such case, it is my will, desire, and intention, that the aforesaid sum of £2500 sterling, invested as aforesaid, shall be paid over to his Eminence Paul Cardinal Cullen, or to whomsoever may be at the time occupying the office and discharging the duties of Roman Catholic Archbishop of Dublin, to be applied to the most urgent religious and charitable necessities, but especially the supÂport and education of the orphan children of Roman Catholic parents, or of children, one of whose parents may have died in the Roman Catholic faith." The testator also bequeathed the folÂlowing legacies, in these terms : " To my cousin, Mrs. Catherine Davis, if she be alive, and if not, to her children, the sum of £100 sterling, and to her sister Anne, whose married name I now do not know, a like sum of £100 sterling," and after some other bequests, he bequeathed all his interest in certain houses and premises in the city of Dublin, and his interest in his own house in CharlemontÂstreet, with his furniture, to his brother Joseph Bourke, with the following proviso :-" And if he shall not signify his intention to return from America to claim and occupy the aforesaid premises, Vox,. XXVII.] CHANCERY DI VISION. (575 I authorize and direct my executors to sell the said premises and R. furniture, and to pay over the...