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1. This is a Construction Summons brought for the purpose of construing the last Will and Testament of Harry Lefroy, deceased, late of Cambri, Killaloe, County Clare dated the 10th October, 1922 and one Codicil thereto dated the 10th January, 1993. The Testator died on the 2nd January, 1935. His Will and Codicil were admitted to probate on the 10th April, 1935. The Applicants are the present Trustees of the Will.

2. By his Will and Codicil the Testator, having made a number of bequests, directed that his residuary estate be sold by his Trustees and invested and he directed that the income therefrom be paid to his wife during her life and after her death as to one moiety thereof to pay the income thereof to his sister, Hester Margaret Oulton, for her life and after her death "upon trust to divide such moiety into twelve equal shares and to divide such shares among the children of Hester Margaret Oulton in the following proportions, that is to say, to her son Gerald six shares, to her son Ralph three shares, to her three daughters, Dorothy, Noel and Beatrice one share each".

3. The Testator then proceeded to deal with the second moiety and he directed that the Trustees were "to pay the income thereof to my sister, Dorethea O'Grady Lefroy, during her life and after her death upon the same trusts for the said Hester Margaret Oulton and her children as are hereinbefore declared concerning the other moiety".

4. By Clause 13 of the Will the Testator declared that the share of his residuary estate:-

5. Clause 13(c) of the Will provides:-

6. On one interpretation, that being advanced by Mr. Brady, S.C., on behalf of the Applicants, the Will provided that the five nieces and nephews, that is to say Gerald, Ralph, Dorothy, Noel and Beatrice took no more than a life interest in the income but the respective shares in which they enjoyed the income dictated the share of the residuary estate which would ultimately pass to their children. It is Mr. Brady's submission that the Will makes no provision for the events which have in fact happened in this case, namely, that the three surviving "nieces and nephews" namely, Ms. Dorethea (otherwise Dorothy) Oulton, Mr. Ralph Oulton and Ms. Noel Meta Oulton all died unmarried and without issue and that the Will failed to provide for this eventuality and there was accordingly a partial intestacy.

7. On the other hand it is submitted by Mr. Farrell, S.C., that it is clear that the Testator intended that the ultimate benefit should vest in his grand-nieces and nephews and that on the death of any of the five nieces or nephews without issue the share that his or her children would have enjoyed should pass and vest in the grand-niece or nephew of another niece or nephew who being a male should attain the age 21 years or being a female should attain that age or previously marry.

8. In determining this issue, I have regard to two authorities. The first is a judgment of Mr. Justice Barrington delivered on the 26th June, 1980 in the case of the Will of Patrick O'Toole, deceased (unreported Volume 2, 1980 p.2095) in which Mr. Justice Barrington draws attention to what he described as the "Fundamental Rule" in approaching the interpretation of a Will. It is, he says "that one must attempt to ascertain and give effect to the intention of the Testator". He cites with approval Dickson J. in Robinson -v- Moore , 1962/63 Irish Jurist Reports, page 29 when he says:-

9. In O'Toole's case, Mr. Justice Barrington was unable to say "what the Testator's wishes would have been in the tragic events which have happened" and therefore notwithstanding the Courts disinclination to find an intestacy was driven to the conclusion that in the instant case there was a partial intestacy.

10. The second and more authoritative decision, given that in 1980 Mr. Justice Barrington was a Judge of the High Court, is the decision of the Supreme Court in Henry Curtin, deceased, 1991 2 I.R. 562.

11. At p.573 O'Flaherty J. said as follows:-

12. He goes on to cite with approval, Porter M.R. in Re. Patterson, deceased, Dunlop -v- Rear , 1899 I.R. 324 when he says:-

13. However, O'Flaherty J. at p.573 went on to repeat the warning given to Judges when construing a Will. He said:-

14. In Curtin's case O'Flaherty J. found that the two injunctions, i.e., to find out the intention of the Testator but at the same time not to make the Testator's Will for him, were on a collision course. One was that the Court was not entitled to make the Will for the Testator but on the other hand there is a requirement that effect should be given to the intention of the Testator if at all possible.

15. O'Flaherty J. went on to do the letter and with this decision Chief Justice Finlay and McCarthy J. agreed.

16. In the present case in Clause 13(c) the Testator made provision for the failure or determination of the trusts "concerning the share of my residuary estate hereby given to any niece or nephew of mine". He provided that that share should "go and accrue to the others or other of my said nephews and nieces to whom my residuary estate is hereinbefore given.

17. I am left in no doubt whatsoever that the scheme envisaged by the Testator was that should one of his five nephews or nieces fail by reason of death or otherwise to enjoy the benefits acquired under the Will, then the share allocated to that nephew or niece should be devisable among the surviving nephews or nieces and should pass on their death to their sons who reach the age of 21 years or their daughters who marry before that time. I am satisfied that it was never his intention to die intestate insofar as such a share was concerned. I am also satisfied that it was the Testator's intention that if a niece or nephew should die leaving no children, the children of other nieces and nephews should benefit notwithstanding that his or her parent was dead as they would have done on his or her death had they been living at the date when the niece or nephew died without issue.

18. I am confirmed in my view that the Testator did not intend to die partially intestate by the fact that one of the persons who would fall to benefit on a partial intestacy is Mr. Ian Lefroy, son of Mr. Alfred Lefroy, brother of the deceased. In Clause 6 of the Will the Testator specifically provided that his Trustees should set aside £1,000 and pay the income thereof to Mr. Ian Lefroy during his lifetime and after his death to the benefit of his son or sons who attain the age of 21 years or his daughters who attain that age or marry. It seems singularly unlikely to me that the Testator having specifically provided for Mr. Ian Lefroy in this manner would have intended that a further benefit accrue to him upon a partial intestacy.

19. Accordingly, being in no doubt as to what the wishes and intentions of the Testator were, I answer the questions in the special summons as follows:-