Watson v Arundel

• Jurisdiction: Ireland
• Judgment Date: 27 June 1876
• Date: 27 June 1876
• Court: Chancery Division (Ireland)

V. C. Court.

WATSON

and

ARUNDEL.

Doe d. Hampton v. Shotter 8 Ad. & Ell. 905.

Fourdrin v, Gowdey 3 m. & K. 383, 393.

Flint v. WarrenENR 16 Sim. 124, 129.

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Acroyd v. SmithsonENR 1 Bro. C. C. 503; 1 Wh. & Tud. L. C. 872 (4th Ed).

Collins v. Wakeman 2 Ves. Jun. 683, 687.

Amphett v. Parke 2 R. & My. 221.

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Will — Construction — Direction to sell real estate — Conversion — Heir-at-law "Residuary legatee" — Schedule incorporated in will, but not included in probate — Admissibility of, in evidence —"All other effects in my house."

VOL. X.] EQUITY. SERIES. 299 than his argument on the other point. In the first place, I do not V. C. Court. think it has any bearing on the question. Secondly, it is not by 1876. slight expressions of this kind that a well-settled rule of construe- HAnselsos tion is to be altered. It was also argued that, if the testator had u w1.11ISON. intended to include the Plaintiff, the same plan would have been adopted in limiting a life estate to him, with remainder to his first and other sons in tail, which had been pursued with respect to the other son John. I do not think that this argument is entitled to weight. The testator may have known of the existence of this son, and may have intended that he should be entitled to an estate tail. In declaring the Plaintiff entitled to such an estate, I abÂÂÂstain altogether from referring to what, from the plan of the will, may be supposed to be the probable intention of the testator. Still, in doing so, I think that I am giving effect to what I believe to have been his intention. Solicitors for the Plaintiff : Messrs. Hugh Wallace Son. Solicitor for the Defendants : Mr. Jeffrey Browning. WATSON v. ARUNDEL. V. C. Court. 1876. Will-Construction-Direction to sell real estate-Co2zversion-Heir- at-law " Residuary legatee" -Schedule incorporated in will, but not included in June 2, 8, 27- probate-Admissibility of, in evidence-" All other effects in my house." A testator by his will empowered his executors to pay his debts and funeral and testamentary expenses out of the proceeds of his property, and after reciting that he was possessed of landed and chattel property, as stated in the annexed schedule, he directed his executors to sell his landed property, and then proÂÂÂceeded to give a number of pecuniary legacies, without stating out of what fund. they were to be paid, and appointed. a residuary legatee :-Held, that the direcÂÂÂtion to sell the real estate did not amount to a conversion of it out and out into personalty so as to make the legacies payable thereout, and to cause the surplus to pass to the residuary legatee, and that therefore the proceeds of the real estate not required for the payment of debts and funeral and testamentary exÂÂÂpenses passed to the heir-at-law, as undisposed of real estate. A will, written on three pages of a sheet of paper and duly executed, reÂÂÂferred. to a schedule which was written on the fourth page of the same sheet, and which was signed by the testator but not witnessed, as if the schedule were. 300 THE IRISH REPORTS. [I. R. V. C. Court. already in existence. There was no extrinsic evidence that the schedule was 1876. already written at the time the will was executed :-Held, on the authority of WATSON In the Goods of Ash (1 Deane, 18), that the schedule was incorporated in the v. will, and was therefore admissible in evidence, but only as to real estate, it not AllITNDEL. having been admitted to probate. The testator bequeathed to A. " my plate, house-linen, furniture, and all other effects in my house at the time of my death" :-Ileld, that a horse, carÂÂÂriage, car, and some hay in the yard. and out-offices passed to A., but not a sum of cash in the house. FURTHER CONSIDERATION. The bill was filed by John Frederick Watson and Thomas Corrigan, two of the executors named in the will of Thomas Singleton, for the administration of the personal estate of the testator and of the proceeds of his real estates directed. to be sold, and to carry out the trusts of his will. The will, which was dated the 11th of October, 1871, after giving directions as to the testator's burial, proceeded. :-" I authoÂÂÂrize my executors to pay the expenses of my funeral, and all my lawful debts out of the proceeds of my property. Whereas I am possessed. of landed and chattel property, as stated in the annexed. schedule, I direct my executors to sell in the Landed Estates Court my landed. property, namely, Cloughsutton, Monemore, Budkin's Pound, and Old Leighlin, in the barony of Idrone West for its full value." The will then gave a number of pecuniary legacies (one of them being a legacy of £2000 to Jane Arundel, one of the Defendants), and. devised. his fee-simple holding in Clonmacshane to Isabella Watson for life, with remainder to John Frederick WatÂÂÂson, and should he die without lawful issue, the testator directed. that it should go absolutely to Thomas Tomlinson, the eldest son of the late Surgeon William Tomlinson. The will then continued. as follows :-" I give and. bequeath to Jane Arundel my plate, house-linen, furniture, and. all other effects in the house at the time of my death, and I constitute the said Thomas Tomlinson my residuary legatee ;" and the testator appointed John Frederick Watson, John Arundel, and Thomas Corrigan, his executors. The schedule to the will consisted of an enumeration of the real and personal property of the testator ; and at the end. of it was the folÂÂÂlowing note :-" N. B.-Clonmacshane is not included in the above schedule. It being willed by me to Isabella Watson, my 'executors have no control over it." The testator died on the 27th V. C. Court. of October, 1872. The will was written upon three sides of a sheet of paper, and was duly executed. The schedule was written on the fourth page of the same sheet, and was signed by the testator, but not witnessed. The will was proved in December, 1872, by the three executors in the District Registry of the Court of Probate in Kilkenny ; but the schedule was omitted from the probate. When the cause was at hearing both the witnesses to the will were examined; neither of them was able to say whether he had seen the schedule when witnessing the will, and there was no extrinsic evidence that it had been written at the time the will was executed. The testator, at the time of his death, was possessed of personal estate much more than sufficient to pay his debts and funeral and testamentary expenses. After his death, a sum of £29 in cash and two gold watches were found in his house, and in the out-offices and yard there were a horse, a carriage, a car, and a quantity of hay and other farm produce. He had never been married, and did not leave any near relative. John Singleton originally claimed to be his heir-at-law. John Arundel being the husband of Jane Arundel, one of the legatees, was, for that reason, joined as a Defendant, and not as Plaintiff. When the case came to a hearing the Vice-Chancellor directed an issue as to who the heir-at-law of the testator was, and...