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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mulhern v. Brennan [1998] IEHC 81; [1999] 3 IR 528 (26th May, 1998)
URL: http://www.bailii.org/ie/cases/IEHC/1998/81.html
Cite as: [1998] IEHC 81, [1999] 3 IR 528

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Mulhern v. Brennan [1998] IEHC 81; [1999] 3 IR 528 (26th May, 1998)

THE HIGH COURT
1997 No. 290Sp
IN THE MATTER OF THE ESTATE OF JOHN O'DONOGHOE (DECEASED) BETWEEN
SYLVESTER MULHERN
PLAINTIFF
AND
ELLEN TERESA BRENNAN
DEFENDANT
JUDGMENT of Mr. Justice McCracken delivered the 26th day of May 1998.

1. John O'Donoghue ("the Testator") died on 8th April, 1915. By his Will dated 28th April, 1911 he provided, in relation to the residue of his estate,:-


"All the rest residue and remainder of my estate and effects real and personal I will devise and bequeath to my four sons John Anthony O'Donoghue, James Frederick Caulfield O'Donoghue, David Geoffrey O'Donoghue and Peter Paul O'Donoghue share and share alike as tenants in common and in the event of any of my children dying without issue the surviving brothers or brother shall take his share original and accruing but in the event of his leaving issue such issue shall be entitled to the parent's share."

2. I have been asked to determine three issues arising on the construction of the Testator's Will. These are as follows:-


3. Does the phrase " dying without issue " which appears in the said residuary clause mean:-

"(i) Dying during the lifetime of the deceased to the effect, in the events which have happened, that each of the said sons took absolutely a quarter share of the residue of the estate? or
(ii) Dying at any time to the effect that on the death without issue of each son his share passed to the then surviving brother, or brothers, and ultimately, on the death of the last surviving brother (the said John Anthony O'Donoghue) without issue that an intestacy arises? or
(iii) Dying at any time but to the effect that the defeasance provision in the said Will only applies for so long as there is a surviving brother? "

4. In the events that happened, the Testator's four sons all survived him, but ultimately all four of them died without issue. It appears from the terms of the Will probable that only one of the sons was of full age at the date of the Will. The primary rule which I must apply in construing the Will is that I must endeavour to ascertain the wishes of the Testator insofar as they are expressed in the words of the Will. If the words of the Will are clear, then the Court must give full effect to them in their normal meaning, and it is not for the Court to attribute any intention to the Testator which is not expressed in the Will.

5. The first point which I have to consider is whether the phrase " dying without issue" refers to the death of the beneficiary during the lifetime of the Testator only, or whether it refers to his death without issue at anytime. There is a clear rule of construction that, unless the contrary be clearly indicated, a reference in a Will to the contingency of a person dying only refers to that person dying during the lifetime of the Testator, for otherwise it is not a contingency at all, but a certainty. See for example Re: Hall (1944) I.R. 54. In the present case, however, the event triggering a gift over is not simply the death of one of the Testator's sons, but his death without issue.

6. A number of authorities have been opened to me, but only two of them appear to me to be directly relevant. In Woodroofe -v- Woodroofe (1894) 1 Ch.D. 299 there was a very similar residuary gift to that in the present case. The residue of the property was to be divided among the Testator's four sons subject to the proviso " but if any of my said sons shall die without leaving lawful issue him surviving, my Will is that the share of such son shall go and be divided between such of my other sons as shall be then living, in equal shares, the children of a deceased son to take the share to which their father would have been entitled." It was held by the Master of the Rolls that the share of each son was defeasable in the event of his dying at anytime without leaving issue. He said at p. 302:-


"When death is spoken of by a testator as a contingent event, and if the words import no other contingency, then, since death is an event which must happen to all, the time of it alone being uncertain, the Courts have long treated the time of death as being the contingency contemplated, and, for want of a reference to any other time, have construed the Will as referring to death before the testator. Thus such common expressions as 'in the event of his dying' or 'if he should die' or 'in case of his dying' and the like, without more, have always been held to mean dying before the testator. This construction, however, is only adopted ex necessitate, and because the Will treats a certain event as uncertain, thus introducing the uncertain element of time, and no other time than the death of the testator can be supposed to be in view .

But whether this rule was originally sound or not there is plainly no reason for its application where some other contingency is in express terms connected with the event of death; as, for instance, where the event is not merely the death of A.B., but the event for instance of his dying before C.D., or dying under 21, or dying without leaving lawful issue him surviving; for these are all events to which language of contingency is strictly and properly applicable, and therefore there is no need to suppose, or imply, a reference to any other contingency than that which is expressed."

Similarly, in Richardsons Trusts (1896) 1.Ch.D. 295 there was a provision that " in case both, or either of my sons, Albert or Alexander dying leaving their children fatherless, I leave to such children the sum of £500 sterling to be divided among them share and share alike ." It was again held that the proper construction of this was that the gift would take effect on the death of either of the testator's sons leaving children at anytime, and was not confined to death during the testator's lifetime. The Vice-Chancellor said at p. 300:-

"The next question arises on the words 'dying leaving their children fatherless.' At what period of time must this event happen? This is not a case in which the Court is compelled, in order to avoid a failure of intention, to confine the death to the period of the testator's life. That construction is not to be resorted to unless no other contingency is mentioned; and where a contingency is coupled with death there is no necessity for limiting it to the life of the testator. The contingency must be ascertained from the Will itself, and in the present case it sufficiently appears that the contingency contemplated is the death of a son leaving his family without provision."

7. It appears to me that these decisions are correct, as they reflect the clear meaning of the words used. If it was intended to limit the contingency to the death of any of the Testator's sons during his lifetime, it would have been very easy for the Will to have said so. To hold that this is the meaning of the words as they in fact appear in the Will would be to add the words " in my lifetime " to the gift, and a Court will only supply additional words of limitation in a Will where that is necessary to give a rational construction. Accordingly, I hold that the true construction of the Will is that the gifts over took effect on the death of any of the Testator's sons without issue at any time, either before or after the death of the Testator.

8. This then leads to the question of what happens when, as in the present case, the stated contingency takes effect in relation to all the beneficiaries. In the events that happened, quite clearly the entire estate became vested in the last surviving son of the Testator, the stated contingency having occurred in relation to the other three sons. What the Will provides is that " in the event of any of my children dying without issue the surviving brothers or brother shall take his share original and accruing but in the event of his leaving issue such issue shall be entitled to the parent's share." This is open to two constructions. Either the Testator totally failed to make any provision for the event which happened, in which case there would be an intestacy, just as there would be where a life interest was given without any gift over, or there is effectively a further contingency provided in the Will, namely, that there must be a surviving brother or brothers to take the share, and as that contingency has not occurred, the last surviving brother takes absolutely.

9. There is considerable authority that, in construing a Will, the Court will presume that the testator did not intend to die intestate as to any part of his estate, for otherwise he would not have made a Will. Accordingly, where there is an ambiguity, this is very colourfully expressed by Lord Esher M.R. in In Re: Harrison (1885) 30 ChD 390 where he said at p.393:-

"There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a Will in solemn form you must assume that he did not intend to make it a solemn farce, - that he did not intend to die intestate when he has gone through the form of making a Will. You ought, if possible, to read the Will so as to lead to a testacy, not an intestacy. This is a golden rule. I do not deny that this Will may be read in two ways, or that it requires a should be filled up. But it may be read in such a way as not to amount to a solemn farce."

10. The Will in the present case can certainly be read on the basis that for the contingency to take effect, there must be surviving brothers or a brother, and therefore the last son of the Testator takes absolutely. Indeed, this construction appears to be more likely to accord with the intention of the Testator, in that he clearly gave a vested interest to each of his children in the first place, and did not express himself as merely giving them a life interest. Accordingly, as it is possible to construe this Will sensibly and logically without providing for an intestacy, I think the correct construction must be that the last remaining son of the Testator took the residue of his estate absolutely.

© 1998 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/1998/81.html