The Gazette 1979

JULY-AUGUST

1979

GAZETTE

grand-nephews would hardly have been adeemed by the compulsory purchase before the executor had given his assent to the devise and that the correct approach was to try to ascertain the intention of the Testator and not to endeavour to adapt a rule of law or construction to fit the facts. He had little doubt but that the main consideration in the mind of the Testator was that the land should be owned and worked by some one of his own family and of his own name. The lands having been sold they could not be appointed to one of his grand-nephews and the Testator's object could not be achieved. McWilliam J. referred to the case of Robinson v. Moore [1962-63] Ir. Jur. Rep. 29 in which Dixon J. reviewed the law regarding the effect of a Will where property is given by that Will with a power to appoint to other people but no appointment is made and there is not provision in the Will for a default of appointment. In considering the alleged "rule" that "if there is a power of appointment among certain objects, but no gift to those objects, and no gift over a default of appointment, the Court implies a Trust for or a gift to those objects equally, if the power be not exercised", Dixon J. concluded that the correct approach was to enquire whether there was any clear indication that the Testator intended the objects of the power or some of them to take not only under the power but also if the donee failed or neglected to execute the power. Held (McWilliam J.) that there was no such indication and if there was any indication, it was that the Testator was more anxious to benefit the older generation to whom he gave the residue and that the proceeds of the sale of the lands pass under the residuary clause in the Will. Patrick J. Tuite v. Mary Tuite & Ors. High Court (per McWilliam J.) — 3 November 1978 — unreported.

The Plaintiff, who was a director of a building company, had, prior to the events which gave rise to the proceedings, purchased from the Defendants part of the Defendants' lands at Monkstown ("the front lands"). He was anxious to purchase the remainder of the lands ("the back lands") and kept in contact with the Defendants' Estate Agents. At some time prior to the 7 December 1977 the Plaintiff offered H.W. of the Defendants' Estate Agents £175,000 for the back lands. The Chairman of the Board of the Defendant Company indicated to the Defendants' property adviser, M.L., the terms on which the Defendants would be prepared to sell and M.L. kept in contact with H.W. Between 7 and 19 December, 1977, the Plaintiff had a number of discussions with H.W. and eventually agreed to purchase the back lands for £175,000 on the terms that the date for the closing would be six months from the date of contract, that the deposit payable would be £30,000, and that the Plaintiff would pay interest on the balance of the purchase money at the rate required by the Defendants. Following the completion of this Agreement H.W. wrote to M.L. in the following terms:— "Hall School - Lands at Rere " Fu r t h er to our telephone conversation this morning I confirm that we have agreed terms, subject to contract, for the sale of these lands to Mr. Paddy Kelly of Berkeley Homes Ltd., who were the purchasers of the front lands. The principal terms to be included in the contract for sale are as follows:— "Proposed purchaser: Hickey Beauchamp Kirwan & O'Reilly, (In Trust). "Proposed price: £175,000. "A non-returnable deposit of £30,000 to be paid on exchange of contracts, the balance to be paid not later than 6 months thereafter with interest at 12% from the contract date until the closing date. "I am sending a copy of this letter to Mr. Haugh of A. & L. Goodbody, solicitors for the Vendors, and perhaps you could kindly confirm instructions to him on behalf of the Committee". Yours sincerely, H.W.

CONSTRUCTION OF WILL Power of Appointment under Will frustrated by conversion of subject matter. Proceedings were brought by the Plaintiff as executor. The Testator devised and bequeathed his land and chattels to his nephew (the Plaintiff) in Trust for such child of his as he should " in his absolute discretion consider best suited to possess the lands and pursue the occupation of farmer" and he gave his said nephew the right to appoint by deed or will in favour of such child when that child attained 25 years; and until such appointment he gave his said nephew full powers of management and control. The Testator made no disposition in default of appointment and gave the residue of every kind to his nephews and nieces. During his lifetime the Testator owned lands in Co. Carlow. After his death the Land Commission commenced proceedings for acquisition and, notwithstanding objections by fepresentatives of the Testator, compulsorily acquired the lands. The Plaintiff had five children all under the age of 25 years and no appointment had been made by the Plaintiff. Under the circumstances, the Plaintiff could not carry out the Trusts of the Will in the manner directed by the Testator and sought directions of the Court as to the proper application of the sale proceeds. McWilliam J. commented that had the property been compulsorily purchased before the death of the Testator, the gift would have been adeemed and the purchase price would have passed under the residuary clause (Galway's Will Trusts [1950] Ch. 1). He cited cases (Lawes v. Bennet (1875) 1 Cox 167; re Carrington [1932] 1 Ch. 1; Jones v. Bailey [ 19101 1 I.R. 110 and Mlley v. Carty [1927] I.R. 541) which turned on the failure of the donee of the power to appoint the property into which the subject matter of the power had been converted and commented that they seemed to favour the principle of ademption where specific property had been converted before the directions of the t estator creating a power could be carried into effect. However, in the present case, McWilliam J. felt that a simple gift of this property to one of the Testator's

SALE OF LAND - SPECIFIC PERFORMANCE

Letter from Vendor's estate agents to Vendor confirming terms of agreement for sale constitutes a note or memorandum in writing for the purposes of Statute of Frauds.