THE ESTATE of W. D. HUMPHREY. [Ross J.]

• Jurisdiction: Ireland
• Judge: Ross J.
• Judgment Date: 29 November 1915
• Court: High Court
• Date: 29 November 1915

In the Matter of the Estate of W. D. Humphrey.

Ross J.

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.

1916.

Will — Construction — Absolute Gift or Precatory Trust.

A testator, having left all his property, real and personal of every kind, to his wife, added the words: “I express the wish that she should leave by her will, or transfer during her life, as she shall think fit, my house and demesne of K. to my son John … The remainder of my property I wish to be left, or transferred, to my daughters, Elinor Frances Beatrice and Margaret Lilian, in such way as” his wife should think fit.

Held, that the widow took an absolute interest.

Motion.

John Edmund Longfield, of Kilcoleman, Enniskeane, Co. Cork, died on the 12th June, 1913, having made his will, dated the 1st March, 1912, in the following terms:— “I John Edmund Longfield, of Kilcoleman, Enniskeane, Co. Cork, do hereby make this my last will and testament. I revoke all former wills. All my property, real and personal of every kind, I leave to my wife, Elinor Mary Augusta, and I appoint her the sole executrix of this my last will and testament. I express the wish that she should leave by her will, or transfer during her life, as she shall think fit, my house and demesne of Kilcoleman to my son John Foster, with sufficient money for his and its maintenance, but not before he has reached the age of twenty-five years. The remainder of my property I wish to be left, or transferred, to my daughters, Elinor Frances Beatrice and Margaret Lilian, in such way as the said Elinor Mary Augusta shall see fit.”

John Edmund Longfield died on the 12th June, 1913, and probate of his will was granted to his executrix, Elinor Mary Augusta Longfield.

The testator left issue, one son and three daughters, viz., John Foster Longfield, Elinor Frances Beatrice Longfield, and Margaret Lilian Longfield, who were living at the date of the execution of his will, and Frances Emily Lydia Longfield, who was born after the date of the will.

The property left by the testator included a fee-farm rent of £37 8s. 9d. per annum, payable out of the lands of East Ballyspillane, sold in the present matter, which rent was redeemed for the sum of £900. When the matter came before the examiner, he required that the questions arising out of the testator's will should be judicially determined. Accordingly, the present application was made to the Court by Mrs. Elinor Mary Augusta Longfield, asking for a declaration that, upon the true construction of the will, she was absolutely entitled to all assets, real and personal, of the said testator.

Conner K.C., for the applicant, Mrs. Longfield:—

It is the duty of the Court to find, if possible, the testator's real intention. It is submitted that he intended to give his wife everything. It is clear that the first clause amounts to an absolute beneficial bequest; but it is suggested that the words which follow cut it down to a life interest. Equitable obligations are imposed when language sufficient to impose them is used; but the present trend of judicial opinion is against precatory trusts. The cases on the subject are collected in Jarman on Wills (1910 ed.), pp. 876–882. It is always a question of intention in these cases whether a trust arises or not: Hill v. Hill (1). If there is a trust here, Mrs. Longfield could not sell a bedstead or give away a ring without committing a breach of trust. If a testator really means his recommendation to be imperative, he should express his intention in a mandatory form: In re Williams (2). There is nothing here to make “wish” bear any other than...