[2019] IEHC 400
THE HIGH COURT
[2018 No. 12 SP]
ANDREW SHANNON
PLAINTIFF
DEFENDANT
JUDGMENT of Mr. Justice MacGrath delivered on the 12th day of April, 2019.
Background
1. John Shannon died testate on 23rd March, 2013. Grant of probate issued from the District Probate Registry at Cork on 22nd August, 2017 to the plaintiff, the deceased's nephew and the executor of his estate. The defendant is a beneficiary under the will of the deceased and is described as a friend, but of no relation to him.
2. At the date of his death, the deceased was the registered owner of lands and premises comprised in two adjoining folios - Folio 22769 of the Register of Freeholders County of Cork situate in the townland of Glanlough, Carbery West (West Division) in the County of Cork, and Folio 60662 of the Register of Freeholders County of Cork situate in the townland of Glanlough, Carbery West (West Divison) in the County of Cork. The testator's real estate comprised of the lands in the two folios, and it seems, a share in adjoining commonage. His personal estate consisted of bank accounts, livestock, machinery and farm entitlements.
The will
3. By his last will and testament executed on 22nd August, 2011 the testator made the following provision:-
"I, JOHN SHANNON of Moulamill, Gortalassa, Bantry in the County of Cork, Bachelor, declare this to be my last Will and Testament and I hereby revoke all former Wills and testamentary dispositions at any time heretofore made by me.
I APPOINT my nephew Andrew Shannon as sole Executor of this my last Will and Testament and I direct him to pay all my just debts, funeral and testamentary expenses as soon as possible after the date of my death.
I GIVE, DEVISE AND BEQUEATH my dwellinghouse and farm of lands at Moulamill with stock and contents and farm entitlements to my friend Henry Shannon, Brahalish for his own use absolutely.
All the rest, residue and remainder of my property, both real and personal, and wheresoever situate I GIVE, DEVISE AND BEQUEATH to my nephew ANDREW SHANNON for his own use absolutely.
IN WITNESS WHEREOF I have hereunto set my hand to this my last Will and Testament this 22nd day of August Two Thousand and Eleven."
4. A dispute has arisen as to the proper construction of the specific devise of lands in the will and whether it includes the lands and premises comprised in Folio 22769 only, or the lands and premises comprised in Folio 60662 only, or the lands and premises comprised in both folios.
The Questions
5. The plaintiff seeks a determination of the following questions which it is stated arise on the construction of the will:-
6. The case came before the court by way of notice of motion date 5th November, 2018, in which the plaintiff sought an order pursuant to the inherent jurisdiction of the court for directions as to the manner of trial. The plaintiff further sought an order pursuant to O. 39, r. 4 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court directing that evidence be adduced viva voce from the witnesses intended to be called at the hearing of this action. The motion was grounded on the affidavit of Mr. Kevin O'Donovan, solicitor. The plaintiff contends that as appears from the folios, the lands comprised in each Folio 22769 are separate and distinct although adjoining.
7. The defendant has sworn two affidavits in response to the proceedings. In his first affidavit sworn on 28th March, 2018, he avers that there is no ambiguity in the will. Within the local area and the wider farming community, he states that it is well known that the deceased's farm consisted of the lands in the two folios and a one seventh undivided share in Glanlough commonage. While the folios refer to lands at Glanlough, Moulamill is known locally as the area where the lands are situated and this address coincides with the address of the testator as stated in the will. As there is no ambiguity on the face of the will he does not believe that court intervention is required to ascertain the intentions of the testator. The deceased worked the two adjoining folios and the share in the commonage as one farm. He states that the lands were always accepted as the farm of lands at Moulamill and he is entitled to them under the will. In a further affidavit sworn on 9th July, 2018 and in response to an affidavit of Mr. Raymond Hennsessy, solicitor who drew the will, the defendant avers that the deceased did not own an outside farm and that the lands on the two folios and the commonage are inextricably linked through open gaps and gateways
8. Mr. Hennessy was engaged by the deceased to draw the will. In an affidavit sworn on 26th March, 2018, he states that the deceased attended at his office on 22nd August, 2011. Mr. Hennessy took instructions and prepared an attendance note which he exhibited to his affidavit. The deceased's name and address is recorded in the attendance notes as " John Shannon, Moulamill, Gortlassa, Bantry ". The attendance note then records as follows:-
"Client called this morning to say he wants to change his will.
He said he wishes to appoint his nephew Andrew as his sole executor.
He wants to leave his farm and dwelling house at Brahalish to his friend and neighbour Henry Shannon who is not related to client in any way.
He wants to leave the residue of his estate to his nephew Andrew Shannon.
I have pointed out to client that Henry with have CAT to pay whenever he takes the inheritance and he is no relation of client.
Client signed the new will in presence of Anne and I."
9. Mr. Hennessy avers that the deceased's instructions were that his principal residence, and the farm folio upon which it was situate, would form part of the residue of his estate and pass to his nephew, the plaintiff. He did not believe that the deceased intended to devise and bequeath what he describes as both of his dwelling houses and both of his farms to Henry Shannon, the defendant.
10. The dwelling house of the deceased in which he resided at the time of the will and at the time of his death, is situate on Folio 22769. A semi derelict house, uninhabited for in excess of 30 years, is situate on Folio 60662. The last person to reside there was Richard Shannon, who died in 1986. This uninhabited dwelling house is and was known as " Dick's Place".
11. Given the delays in the administration of the estate, the defendant issued proceedings against the plaintiff in the Circuit Court seeking an order for the administration of the estate and/or in the alternative, an order removing the plaintiff as executor of the estate. The court is not concerned with these proceedings.
12. A notice for particulars was raised by the defendant on 12th April, 2018. Details were sought of all farm accounts of the deceased for a five-year period, and clarification was sought as to what was meant by "both of his dwelling houses " as averred to in Mr. Hennessy's affidavit. A reply issued on 20th April, 2018 stating that farm accounts had not been filed for many years. The deceased's income was from " basic payment entitlements ". It was confirmed that the dwelling house in which he resided prior to his death was on Folio 22769.
13. Mr. Declan Daly, engineer, in an affidavit sworn on 26th November, 2018, and to which he exhibited maps, plans and photographs, gave evidence as to the physical condition and lay out of the deceased's lands. He states that Moulamill is a derivative of Mautimile, which is a subtownland of Glanlough and has no defined boundaries.
14. Mr. Padraig Murray, also an engineer, in an affidavit sworn on 6th December, 2018, exhibits photographs including satellite photographs of the land. He states that a new roadway has been excavated on the lands linking what he describes as the two farmyards. He also avers that the satellite images show no evidence of a connection between the properties although there is evidence of a track leading from Folio 60662 to the commonage. He describes a number of different entrances and the import of his evidence is that, apart from that brought about by recent works, there is no physical connection between the two folios. He does not believe that there was a determined effort to amalgamate the two folios into one farm.
15. The plaintiff in an affidavit sworn on 5th December, 2018 avers that he had consistent and regular contact with his uncle throughout his lifetime. He is firmly of the view that for some years prior to the deceased's death the properties " remained both standalone …". He identifies gaps in hedges or fences which facilitated ease of access for the occupant between both premises. He cared for his late uncle's livestock for many years prior to his death. Further, as personal representative of the deceased, he states that he did not authorise any construction works or the new roadway on the property.
16. The defendant objected to the nature of the application brought before the court and claimed that it was for the court to decide, after full hearing, whether in the first instance there is any ambiguity on the face of the will, Only if an ambiguity is found is extrinsic evidence admissible to aid in the construction of the will.
17. Having considered the application, the evidence adduced by way of affidavit in support of the application and the submission of the parties, it was noted that in a number of authorities to which reference was made, the courts had the benefit of oral evidence, introduced at least on a de bene esse basis. In a preliminary ruling delivered on the 13th December, 2018, this court determined that, at least on that basis and in the interest of justice, it should hear such oral evidence of the parties which they contend support their respective positions.
18. At the adjourned hearing oral evidence was given by Mr. Hennessy of the deceased having made previous wills with him. His recollection was largely in line with, and guided by the contents of his attendance note. He believed that although the attendance note referred to Brahalish, the reason why the property was described in the will as being at Moulamill was probably because his secretary who would have seen the address of the deceased on the attendance note, typed Moulamill instead of Brahalish. He believes that Mr. Shannon waited in the waiting room while the will was being drafted by his secretary. It was his understanding and recollection that it was the intention to the testator to leave an outside farm to the plaintiff.
19. Under cross-examination, Mr. Hennessy accepted that he did not check the folios but stated that this was not an exercise he would perform when drawing a will. He stated his belief that the description of the lands being at Brahalish is something that the testator must have told him as he would not have made this up. He understood Brahalish to be a separate dwelling. He believed that there was nothing unusual about the use of the words " stock and farm entitlements ". He thought that perhaps his secretary may have inserted this into the will. It was his normal practice to have a testator read the draft will while in the waiting room and to thereafter sign it in the presence of the necessary witnesses. Mr. Hennessey was unaware that the plaintiff did not have land at Brahalish but also clarified that he was unaware of the specific locations of lands either at Moulamill or Brahalish.
20. Mr. Murphy, engineer, also gave evidence largely consistent with the contents of the affidavit sworn by him on the 6th December, 2018. He described the lands by reference to various maps, photographs and folio numbers. He gave evidence in relation to the commonage, the location of the houses and the recent construction of a road between the lands on the two folios in recent times. The surface of the access road from the main public road to Dick's Place, was of tar and chip. Mr. Murphy was unsure whether this was a public or private road. It is clear from photographs produced by him that the road became overgrown due to lack of use and maintenance. A number of gates and entrances into the lands on either side of that roadway were identified and he described new gaps in the fence, and a newly laid water pipe. An electric line of recent origin also appears to have been put in place. He did not observe any particular track onto the commonage from Dick's Place nor did he observe significant connections between the two farms. With regard to the farming enterprise, he believed the land may have been underutilised and was stocked by no more than 11 cows and that the lands would not have been farmed jointly. While it was possible for animals to move between the lands through a gap, machinery would not be able to pass through. Nevertheless, Mr. Murphy could not give definitive evidence as to the user of the lands and as to whether the late Mr. Shannon used or did not use the lands on Dick's Place. His evidence was confined to what he saw in 2018, the testator having died in 2013. He accepted that the residence on Dick's Place was derelict and that the lands in both folios were owned and held by the deceased for over 30 years.
21. The plaintiff gave evidence. He previously lived in Brahalish but now lives in Rossmore. He is a farmer in a modest way and also a sales representative. The defendant resides near him. The testator was aged approximately 70 years when he died. He was a bachelor who lived alone and was engaged in farming in a small way. The deceased had diabetes and some mental health issues although these were not expanded upon. Dick's Place had been the property of Dick and Lilly Shannon who were related to his father. Mr. Shannon also gave evidence of putting cattle on the lands in Dick's Place as the deceased did not farm the land to any great extent. While one might access the two properties through the fields, the deceased used the roadway when driving his tractor.
22. Mr. Shannon, the plaintiff, also gave evidence that the lands were separately valued for estate purposes as though they were standalone properties. He cared for livestock on the lands following the death of the deceased until a padlock was placed across the lands when the new road was constructed. Further, while there is a laneway between the land he does not believe that there was any physical connection between them.
23. Under cross-examination, he accepted that farm accounts had not been produced to the court but stated that the deceased was " not good at that ". He believes that the testator understood and viewed the lands as being separate because one of the properties was known as Dick's Place. On questioning regarding the deceased's farm entitlements, he stated that did he did not believe that these entitlements attached to the lands at Dick's Place. He accepted that he was not an expert on, nor was he purporting to give any specific and particular evidence on farm entitlements, but stated that he attempted to maintain the entitlements. While he accepted that it may be fair to say that the deceased treated the lands as one unit, nevertheless, when the deceased was using the property he wintered the cattle on what was described as the south side of the hill, whereas he, the plaintiff, brought cattle to what he described as Dick's Place. Mr. Shannon was also questioned on the fact that in his will, the deceased did not distinguish between the two folios and bequeathed stock and content without differentiation. Nevertheless, he believed that the deceased did not wish a situation to develop whereby the defendant would receive the lands in both folios.
24. Oral evidence was given on behalf of the defendant by Mr. Declan Daly, engineer, in line with the evidence on affidavit submitted by him. He described a number of gates, gaps and tracks in and over the lands, some of which went directly onto the commonage. He confirmed his evidence on affidavit that Moulamill is not a townland and that its name is derived from Mautimile which is a sub-townland of Glanlough and has no defined boundaries. He also gave evidence of at least four access points between the property in Folio 22769, and either the commonage or onto property in Folio 60662, Dick's Place.
25. The defendant did not give oral evidence.
Submissions
26. Submissions were made by the parties on the initial application and at the resumed hearing. The following is a synopsis of the main arguments made on both occasions. The parties refer to leading authorities such as Rowe v. Law [1978] I.R. 55 and O'Connell v. Bank of Ireland [1998] 2 IR 596 which I will address later in this decision.
27. Mr. O'Mahony S.C. submits on behalf of the plaintiff that the terms of the will are ambiguous and that in the circumstances extrinsic evidence is required to understand the intentions of the testator, that his intention was to devise the property in Folio 22769 to the plaintiff and that the ambiguous terms of the will should be construed to give effect to that intention. In the alternative, it is submitted that the specific devise and bequest to the defendant comprises of the real property of the testator in Folio 22769 only and that his intention was that the real property in Dick's Place be devised to the plaintiff as a residuary legatee.
28. It is contended that the ambiguity may arise from the terms of the will or from its surrounding circumstances. Reliance is placed on a number of authorities decided prior to the enactment of s. 90 of the Succession Act, 1965, as illustrating that extrinsic evidence was admissible in certain limited circumstances. Thus, in Re Julian [1950] I.R. 57, Kingsmill Moore J. stated that it may be necessary to have regard to extrinsic evidence in certain circumstances. Mr. O'Mahony S.C. relies on the following dicta of Kingsmill Moore J:-
"In two cases only, as far as I know or have been able to ascertain, is such evidence allowed; to rebut or support certain bare legal presumptions and to determine which of several persons or things are comprised in a truly equivocal description, that is to say, a description which applies accurately to two different persons or objects." (Emphasis supplied)
Kingsmill Moore J. cited Doe d. Gord v. Needs (1836) 150 E.R. 698 as authority for the proposition that where a description may have accurately referred to either of two potential but different beneficiaries, evidence of the testators' intention was admitted.
It is to be observed that Re Julian preceded the enactment of s.90 of the Succession Act, 1965. In O'Connell the position was summarised as:-
"The detailed requirements of the legislature as to the execution, attestation and publication of wills could not, in general, be circumvented by allowing parol evidence to be admitted as to the intentions of the testator, save in the limited circumstances to which I have referred. However, the strict application of those principles by the courts led on occasions to perplexing results, of which Re: Julian itself is a remarkable example".
29. Counsel also relies on T he matter of Tomlinson (deceased), Lyndsey and Wynne v. Tomlinson (Carroll J., 13th February, 1996). There, a testator made a bequest to the National Society for the Prevention of Cruelty to Animals (Dogs and Cats) 1, Grand Canal Quay, Dublin. No body precisely matched that description. There were two bodies, the Dublin Society for the Prevention of Cruelty to Animals, and the Irish Society for the Prevention of Cruelty to Animals, for whom the bequest could equally have been intended. Carroll J. found that an ambiguity had arisen which required the admission of extrinsic evidence. Based on evidence as to the testatrix's pursuits while alive, Carroll J. was satisfied that the former body was intended to benefit. The deceased had been a volunteer for that society and the second - named body was an administrative one not involved in active field work.
30. Counsel submits that in this case the deceased, whose address is described in the will as " Moulamill, Gortalassa, Bantry " devised only one dwelling house when he owned two and that only one of the folios of lands was the subject of the relevant clause in the will. This is consistent with the residuary clause which provided that the remainder of his property, both real and personal, was to go to the deceased's nephew, the plaintiff. It is submitted that as the deceased had no other real property, the residuary clause would be meaningless if the devise to the defendant was of all lands in both folios. It is submitted such contention is fortified by the fact that the dwelling house and farmlands are described as being at Moulamill. This does not correspond with the description of the lands in the two folios, which describes land at Glanlough. The fact that the two pieces of land were acquired at different times and historically had been separate holdings, on which there were two separate dwellings, and occupied by two separate families, also supports this proposition. It is argued that the fact that a dwelling house may be uninhabited or semi-derelict (as is the case on Dick's Place), does not mean that it is not a dwelling house.
31. Both folios are located within the same townland and each contains farmlands and a dwelling house. Thus, the specific devise could accurately describe the lands and premises contained in either folio.
32. It is further submitted that such analysis is supported by the evidence of the engineer retained by the plaintiff, Mr. Murphy, as to the separate and distinct nature of the landholdings in the two folios. There was no determined effort, as a matter of fact, to amalgamate the two folios into a single farm. Each folio had separate entrances with separate dwelling houses, yards and holding pens.
33. The various locations used to describe the lands add to the ambiguity, thus the lands are described in the specific devise as being at Moulamill. However, the lands comprised in the two folios are in fact located at Glanlough. This confusion, counsel submits, is emphasised when regard is had to the solicitors' attendance docket, which initially refers to the testator being from Moulamill but then records the testator's wish to leave his farm and dwelling house at Brahalish to the defendant. It is submitted that the series of different place names creates considerable ambiguity and that the combination of the intrinsic terms of the will and the extrinsic evidence admitted, give rise to an ambiguity which the court must resolve by looking at all the evidence in order to construe the testator's intention. In this regard, it is submitted that Mr. Hennessy is the only independent witness who gave evidence directly as to the intention of the testator. Mr. Hennessy's understanding is that the deceased did not intend to bequeath both dwelling houses and both farms to the defendant. Counsel points out that where an ambiguity has been found in a will, the court may examine the evidence of the person who drafted it to ascertain the testator's intention. Evidence of the solicitor who drafted the will was admitted in Lynch and Nixon v. Burke and ors [1999] IEHC 22 for the purpose of assisting in ascertaining the intentions of the testator and to aid in the construction of and explaining the contradictions in the will. There, McCracken J. concluded, however, that the court would still have to look at the terms of the will to see if there was a construction available which was consistent with the intention of the testator. He acknowledged that extrinsic evidence could not be used for the purposes of rewriting the will. McCracken J. observed that he must take the intention of the testator as had been shown to him and to ascertain whether there was a construction of the will consistent with that intention. Thus, it is submitted that having ascertained the intentions of the testator through the evidence of Mr. Hennessy, there is a construction of the will that is consistent with that intention. Mr. O'Mahony acknowledges that if the specific devise had bequeathed both the testator's dwelling houses and lands to the defendant, there would be no construction of the will which would give effect to the intentions of the testator as evidenced by Mr. Hennessy. Similarly, if the specific devise had referred to a principal residence or place of residence, this would also have been inconsistent with Mr. Hennessy's evidence and the terms of the will would prevail. But in this case it is submitted that the will devises only one dwelling house, which is not particularly specified, together with farmlands; and devises the rest and residue of the property both real and personal to the plaintiff. The specific devise and bequest relates to the dwelling house and lands in Folio 60662, and it is submitted that the dwelling house in which the testator resided and the lands in that folio form part of the residue of the testator's estate and passed to the plaintiff. In the alternative, it is submitted that the specific devise and bequest to the defendant comprised the property of the testator in Folio 22769 and that the deceased's intention was that the property comprising Folio 60662 be devised to the plaintiff as a residuary legatee.
34. In the further alternative, the plaintiff argues that should the court not be in a position to interpret the specific devise and bequest in a manner outlined above, the devise in the will is void for uncertainty as it is impossible to identify to which folio it relates. Mr. O'Mahony S.C. submits that while certain of the cited cases concern identities of devisees, similar principles apply to an ambiguity concerning the nature and extent of a gift.
35. Submissions were made on behalf of the defendant by Ms. Lankford S.C. and Mr. Bracken S.C. It is contended that on the evidence, the deceased used the lands in both folios as one holding and that the evidence of the plaintiff confirms that animals moved from one folio to the other. No documentary evidence was produced to the court suggesting that there are or were two distinctive farms, whether by way of treatment as separate entities from accounting or tax perspectives, or by reference to any other means of distinguishing one part of the farm from the other. The deceased drove a small tractor which was easily navigable between the various fields on both folios and it is submitted that he used the folios as one farm, having acquired both within a short period of time. Folio 60662 was acquired on the 22nd November, 1982 and Folio 22769 was acquired on the 1st February, 1983.
36. It is submitted that there is no ambiguity on the face of the will and therefore extrinsic evidence should not be admitted. Reliance is placed in this regard on the decision of Carroll J. in Howell v. Howell [1992] 1 I.R. 290 and the approach to be adopted in construing a will, the first step of which is to read the will as a whole.
37. Counsel submits that there is no ambiguity or contradiction on the face of the will, and it is clear that the deceased gave his farm of lands, consisting of the lands in the two folios, to the defendant. The use of the words " farm of lands ", if anything, is more consistent with an unambiguous description of all his lands, than might be the case if specific reference was made to the folios. It is also submitted that it is not unusual that wills do not specifically refer to folio numbers. It is contended that the plaintiff is attempting to adduce extrinsic evidence to introduce an ambiguity into what is otherwise a clearly expressed and unambiguous will. Whatever may have been any other person's understanding of the testator's intention, the testator did not misunderstand what he was doing and there was no evidence that he was under any such misapprehension. Counsel further submits that an impermissible attempt is being made to rely upon a standard residuary clause to create an ambiguity and that such a clause is standard.
38. Ms. Lankford S.C. relies on two decisions in particular. In re Bovill [1957] N.I. 58, the testator's will contained the following words - " I leave devise and bequeath my farm on which I reside together with all stock, crop, farming implements and household furniture to my wife Eleanor absolutely." He left the residue of his estate to his four children in equal shares. The question for decision was whether the gift of the " farm on which I reside " applied only to the holding on which the dwelling-house was situated or whether it carried the three holdings which he had worked as one farm. The holdings were registered on separate folios and were contiguous except for a small portion of one which was separated from the rest of the land on the same folio. McVeigh J. stated:-
"The only question, as far as I am concerned, is whether there are any authorities which would prevent me from giving effect to that opinion, but the cases cited have not given me any reason to hesitate. Whilst there is a residuary clause in the present will which distinguishes it some extent from the will considered in McGonigle v. McGonigle ([1910] 1 I.R. 297), nevertheless that was a case in which it was held that two separate holdings passed under the word ‘farm.' The case cited by Mr. Porter, In re Willis ([1911] 2 Ch 563), is helpful on the meaning of the words ‘on which I now reside.' Those words were held not to be a vital and essential part of the description having the effect of cutting down the generality of earlier words.
I have no doubt that when the testator made this will he clearly intended to give his wife the whole of the land, the several plots of which are contiguous (except for the small portions mentioned above) and all of which he carried on as one farm. The view that he intended to give the entirety as a going concern is reinforced when one considers the following words of the will ‘with all stock, crop, farming implements.' He did not divide up those items and it is quite clear to my mind that he never considered carving up the land which he had always regarded as one unit. Accordingly, I hold that all these lands pass to the testator's wife under this bequest."
McVeigh J. also ruled inadmissible evidence of the person who drew the will, an auctioneer, which supported this interpretation.
39. In McGonigle v. McGonigle [1910] 1 I.R. 297, a testator by his will provided as follows:-
"I dispose of my effects in the following manner: I bequeath to my brother Peter my house and my farm, subject to the obligation that he is to pay my wife the sum of £50."
The will had been drawn up by the parish priest. The testator had in fact two holdings which were close together but not adjoining. They were in different townlands approximately a quarter of a mile apart, and were held under different contracts of tenancy but with the same landlord. On one of the holdings there was a house in which the testator resided at the time of his death. There was no house on the other holding. Both holdings were worked together. Barton J. refused to admit the evidence of the priest as to the oral explanation given by the testator of what he meant by the word " farm " and held that it included the two holdings, that the testator was dealing with " facts and things" and not with technical definitions. It was evident to the court that the testator included in the expression " effects " his lands and that he meant to dispose of them all and not die intestate as to any of them:- "At all events he was disposing of his lands as part of his effects, and intended to dispose of all his effects, including his lands."
He continued as follows, at p. 300:- 40. It is submitted that a plain reading of the will does not admit of ambiguity. The word " farm " may consist of two holdings. This has been held in McGonigle v. McGonigle where it was also held that extrinsic evidence as to an oral statement made by the testator at the time of the execution of the will as to what he understood the word " farm " should mean was not admissible. Reliance is also placed on Rowe v. Law and In re Bovill . When construed properly as "a piece of English ", the defendant submits that it is clear that the testator devised his farm at Moulamill to the defendant. The farm consists of the land contained in the two folios.
41. It is also to be observed and noted that counsel for the plaintiff invited the court to have regard for the fact that the term " effects " had, at that time, a particular meaning which included freehold as well as personal estate. The land was held under a contract of tenancy, therefore was leasehold which at that time was considered personalty, the devolution of which differed to real property. Further, there does not appear to have been a residuary clause and the court found that there was an intention to dispose of all effects including his land. Mr. O'Mahony S.C. emphasises that each case must be determined on a fact specific basis.
The Succession Act, 1965 and rules of construction
42. The legal principles applicable to the construction of a will were addressed in this court's preliminary judgment on the directions motion and are to a large extent repeated here.
43. S. 90 of the Succession Act 1965 provides as follows:-
"Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will."
44. As described in Rowe v Law , the effect of the legislation is that extrinsic evidence is not admissible simply to show the intention of the testator, it can only be admitted if it also assists in the construction or explanation of a contradiction in a will.
45. In Howell v. Howell Carroll J. accepted as a helpful summary of the approach to be adopted in the interpretation of a will, the principles enunciated in H eron v Ulster Bank Ltd [1944] N.I. 44 at p. 52 by Lowry L.C.J. and which have since been described by Keating, Keating on Probate (5th ed., Roundhall, 2015) at para 27.05 et seq as the Lowry principles. These principles have also been applied in a number of decisions in this jurisdiction including Corrigan v Corrigan [2007] IEHC 367 and McGuinness v Sherry [2008] IEHC 134. They are as follows:-
"(1) Read the immediately relevant portion of the Will as a piece of English and decide, if possible, what it means.
(2) Look at the other material parts of the will and see whether they tend to confirm the apparently plain meaning of the immediately relevant portion or whether they suggest the need for modification in order to make harmonious sense of the whole or, alternatively, whether an ambiguity in the immediately relevant portion can be resolved.
(3) If ambiguity persists, have regard to the scheme of the will and consider what the testator was trying to do.
(4) One may at this stage have resort to rules of construction, where applicable, and aids, such as the presumption of early vesting and the presumptions against intestacy and in favour of equality.
(5) Then see whether any rule of law prevents a particular interpretation from being adopted.
(6) Finally, once the disputed passage has been exhaustively studied, one may get help from the opinions of other courts and judges on similar words, rarely as binding precedents, but more often as examples of how judicial minds nurtured in the same discipline have interpreted words in similar contexts."
Decision 46. In O'Connell v. Bank of Ireland, Keane J. observed that the general principle was and is that, in construing a will, the object of the court is to ascertain the expressed intention of the testator. The law, he noted, was thus stated by Simon L.C. in Perrin v. Morgan [1943] AC 399 at p. 406:- "… the fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the 'expressed intentions' of the testator."
47. As McGovern J. observed in Corrigan the court considers the will by placing itself in the position of the testator sitting in his armchair shortly before his death to see what he was setting out to achieve. He described at para. 17 the applicable principles as follows:- "In considering the authorities on this subject it seems that the following principles apply:-
(i) The court will strive as far as it can to give effect to the intention of the testator insofar as this can ascertained from the will. In limited circumstances the court is permitted to rectify a will to save it from bad drafting. See Curtin v. O'Mahony [1991] 2 I.R. 566 .
(ii) The court considers the will by placing itself in the position of the testator sitting in his armchair shortly before his death to see what he was setting out to achieve.
(iii) As a general rule the court will give legal or technical words used in a will their legal or technical meaning.
(iv) The guidelines suggested by Lowry L.C.J. in Heron v. Ulster Bank Limited [1974] N.I. 44 at 52 were approved and adopted by Carroll J. in Howell v. Howell [1992] 1 I.R. 290 ." (which he then reproduced)
48. In Rowe v. Law [1978] I.R. 55, Henchy J. speaking for the majority, interpreted s. 90 as permitting the introduction of extrinsic evidence if it met a dual requirement of showing the intention of the testator and in assisting in the construction or explanation of any contradiction in a will.
49. The principles in Rowe were applied by the Supreme Court in O'Connell v. Bank of Ireland . A testatrix had bequeathed the contents of her house to the plaintiff. There was no reference in the will to the house itself but it contained a residuary clause. The plaintiffs contended that it was the intention of the testatrix to leave to them not only the contents, but also the house. They sought a declaration that they were beneficially entitled to the house. Although evidence was adduced at the trial that the testatrix intended to leave the plaintiffs both the house and its contents, in the High Court, Barron J. held that extrinsic evidence of intention was not admissible unless there was some ambiguity or contradiction in the will. On the evidence, he was satisfied that it was the intention of the testatrix to leave the contents and the house to the plaintiffs. Nevertheless, as the terms of the will were clear, the plaintiffs were not entitled to an equitable interest in the house. The Supreme Court dismissed the appeal and held that as the will did not disclose any contradiction or ambiguity on its face, extrinsic evidence could not be adduced as to the testator's intention. Barron J. stated at p. 600:-
"Extrinsic evidence has always been admissible to prove the factum of a will but not its contents. The present case is particularly hard for the plaintiffs since I preferred the evidence of the witnesses for the plaintiffs to that of the solicitor who prepared the will. While it may have been possible that the deceased was so concerned to ensure that the contents were left to the plaintiffs as well as the house as to forget to mention the house, I cannot accept that the express instructions which she gave her solicitor did not include reference to either her house or its contents. Nor can I accept that she only dealt with the contents because she communicated an uncertainty to her solicitor who elicited from her a wish to leave the plaintiffs an item from her home. I am quite satisfied on the evidence which I have heard that the testatrix intended to leave the plaintiffs the house as well as the contents thereof. I fully appreciate Mrs. Healy's worry that her insistence to the deceased to be sure to leave the contents as well as the house has been the cause of what occurred."
In the Supreme Court it was argued that the decision in Rowe v. Law was wrong in law and should be overruled. Having analysed the caselaw prior to the implementation of s. 90 of the Act of 1965, Keane J. followed Rowe v. Law and stated at p. 612 that any other construction of s. 90 would have led to a radical and far reaching change in the law " which it cannot have been the intention of the Oireachtas to bring about by such, at best, opaque and ambiguous language ". If the plaintiffs' submissions were well founded, then the will of a deceased person might consist of various statements, both written and oral, made during the course of his or her lifetime to the extent that they might have contradicted the terms of the will of the deceased. Keane J. stated that such far reaching conclusion was neither supported by the language of s. 90 nor by policy. He also referred to the provisions of s. 99 of the Act of 1965, which provide:- "If the purport of a devise or bequest admits of more than one interpretation, then, in case of doubt, the interpretation according to which a devise or bequest will be operated, will be preferred."
Reference has been made to this section during the course of argument in this case, but as Keane J. noted this provision is clearly intended to ensure that where the wording of the will allows for more than one construction, it should be interpreted, if possible, so as to avoid an intestacy arising. This is consistent with the presumption against intestacy. The other members of the court agreed with Keane J.
50. On the basis of such sentiments, it is clear that the Court cannot be concerned with evidence of the intention of the testator, no matter how meritorious the case being made in this regard, where the will is unambiguous on its face. Therefore, the first and primary question which must be addressed is whether this will is ambiguous or contradictory on its face. And central to this analysis, its seems to me, is to first read the will as a piece of English and in accordance with the Lowry principles as applied in Howell v Howell , to decide, if possible what it means.
51. The testator's address is described as Moulamill, Gortalassa, Bantry. The court has heard evidence regarding the correct name of the townland where the property is located, and while the last two geographical descriptions in the testator's address are not expressly repeated in the operative part of the will relative to the specific bequest and devise, it cannot be seriously contended, that his residential address as described in the first part of the will is anything other than that described as his dwelling house and farm of lands at Moulamill. No distinction is made in relation to the stock and farm entitlements or as to whether they are referable to the lands in either or both folios. It is clearly and unambiguously stated that the devise and bequest include the stock, contents and farm entitlements. No attempt has been made to deal separately with them or to view them as attaching to one or other parcel of lands. It is suggested that the ambiguity arises by virtue of the fact that the deceased had two dwelling houses, even though only one was occupied and that historically these were in different ownerships. Emphasis is also placed on the contents of the residuary clause, which it is suggested would be meaningless if it did not apply to one of the portions of land contained in the other folios. It is of note that certain of the plaintiff's submissions regarding what is contended to be an ambiguity in the will, are premised on the assumption that the will refers to two separate and distinct pieces or parcels of land in the deceased's estate.
52. I am not satisfied, that on a proper construction of the will, as a ‘ piece of English' an ambiguity arises or that the will purports to describe and dispose of two separate and distinct pieces of property in a different manner. In so far as it may be relevant and to the extent that it is contended that the deceased owned two or more parcels on land, it is instructive to note that the will does not refer to or describe the folios nor does it say " farm of land ", it refers to " farm of lands ". It is clear that at the date of his death, the deceased was entitled to the lands in both folios.
53. That the residuary clause refers to real property, in my view, cannot be viewed as being inconsistent with the specific devise and bequest of the testator's lands. Generally speaking, a residuary clause may be designed and intended to ensure, inter alia , either that remaining property of a deceased, not specifically dealt with in the will in an itemised way or otherwise, is given to a specific person or to ensure that such property, real or personal, does not fall on intestacy. Further, a will is ambulatory, it speaks from death and such a clause, it seems to me, may also be designed to capture property acquired after the making of the will and before death. I cannot see that in the circumstances prevailing in this case that the residuary clause has the effect of creating or giving rise to an ambiguity. In my view, there is nothing in this case to suggest that the residuary clause is anything but in standard form or that there is anything contained therein that might lead to a different conclusion on the interpretation of the will.
54. The deceased referred to his dwelling house and farm of lands. While it is true that no will has a sister or brother, decisions in other cases may provide limited assistance. Thus the observations of McVeigh J. in In re Bovill are of some assistance. The court had to consider whether the gift of the farm on which the deceased resided, applied only to the holding on which the dwelling house was situated or whether it carried three holdings which he had worked together as one farm. McVeigh J. concluded that the latter was the unambiguous meaning to be ascribed to the will. He noted at p. 60:-
"The view that he intended to give the entirety as a going concern is reinforced when one considers the following words of the will - "with all stock, crop, farming implements.""
The court observed that the testator did not divide up those items and was quite clear in his mind that he never considered carving up the land which he had always regarded as one unit. In that case there was a residuary clause.
55. In McGonigle v. McGonigle Barton J. stated that a bequest to the testator's brother of his house and his farm provided a sufficient description to conclude that two holdings that were close together, but not adjoining, were transferred by the will. Barton J. noted that a testator in such circumstances is dealing with facts and things and not with technical definitions. Of some relevance in this regard, are the observations of Barton J. that:-
"When he disposed of "his farm", he was I think referring to the land which he farmed and used as one farm for farming purposes, although held under two separate contracts".
56. Taking into account the submissions of Mr. O'Mahony S.C., that at the time of that decision the words " effects " had a different and particular meaning which included freehold as well as personal estate, and noting that there was no residuary clause, nevertheless, I do not see anything in that decision which, in my view, leads to a contrary approach, interpretation or conclusion as I have come to in this case.
57. That there may have been a disused and uninhabited dwelling house on the folio of lands known as Dick's Place, in my view, does not detract from the above interpretation of the terms of the will. It is clear that this structure is on the farm of lands at Moulamill and the fact that the description dwellinghouse in the singular is included in the will, in my view, does not create an ambiguity so as call into question the potential exclusion from the will portion of a property on which it is situated, although not used for dwelling purposes either on the date of the will or date of death. It is also instructive that the conjunctive " and " is employed which I believe, if anything, removes the potential for ambiguity. In my view the farm of lands must mean the lands used for farming by the deceased and, in the circumstances, these are the lands comprised in the two folios. I also believe that the evidence establishes that the late Mr. Shannon farmed the lands as one unit and it is difficult to conclude that there is any ambiguity on the face of the will in this regard.
58. Further, on the application of second of the Lowry principles, I do not see anything in the other material parts of the will which suggest a different interpretation to what I consider to be the plain meaning of the devise.
59. Even if the court was to conclude that there is an ambiguity on the face of the will, such evidence as is suggested to assist, in my view, is not sufficiently strong to lead to the conclusion contended for by the plaintiff. Although he thought the testator may have wished to leave an outside farm to the defendant, Mr. Hennessy was unaware of where the lands were and no other evidence has been given of an expressed statement or wish of the testator that the plaintiff should get the land, or portion of it, or that is what he intended. It may very well be, as Mr. Hennessy has pointed out, that it was the wish of the testator, whether expressed or not, to divide his lands between the parties. Even if such intention was established, the observations of Barron J. in O'Connell v. Bank of Ireland are relevant. Although he was satisfied on the evidence that the testatrix intended to leave the plaintiffs the house as well as the contents thereof, the will was unambiguous on its face and extrinsic evidence could not be adduced as to the testator's intention.
60. In my view, if anything, to admit extrinsic evidence in this case may have the contrary effect of introducing ambiguity into the terms of the will where they are otherwise clear on their face.
61. Finally, it follows that I cannot accept the alternative argument that the will is void for uncertainty.
62. Despite the very able and skilful arguments made on behalf of the plaintiff by Mr O'Mahony S.C., and not without some sympathy for the plaintiff who I believe to be a man of honest endeavour, the answer to the questions posed are:-
(a) the specific devise and bequest to the defendant comprises the lands in both Folio 22769 Co. Cork and Folio 60662 Co. Cork; and
(b) no
