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Judgment Title: Butler -v- Butler & Ors

Neutral Citation: [2006] IEHC 104

High Court Record Number: 2004 457 SP

Date of Delivery: 24/03/2006

Court: High Court

Composition of Court: Smyth J.

Judgment by: Smyth J.

Status of Judgment: Approved

Neutral Citation Number [2006] IEHC 104

THE HIGH COURT
DUBLIN

RECORD NO. 2004/457 Sp.
In the Matter of Timothy Butler,
Deceased, of Raheenduff, The Rower, in
the County of Kilkenny
In the Matter of the Succession Act,
1965
Between/
MARTIN BUTLER
Plaintiffs
-and-
THOMAS BUTLER, TIMOTHY BUTLER AND MARY HOWLIN
Defendants

JUDGEMENT DELIVERED BY MR. JUSTICE T.C. SMYTH
ON FRIDAY 24TH MARCH 2006

INTRODUCTION:
The proceedings are brought by the Plaintiff in his capacity
as the legal personal representative of Timothy Butler, Most
Senior, (hereinafter referred to as "the Deceased") pursuant
to a grant of administration (with will annexed) de bonis non
issued to him on 29th September 2003. The Deceased lived at
Raheenduff, The Rower, Co. Kilkenny. He made his last will
and testament on 2nd November 1956, in which he appointed his
sons, Martin Butler Senior and Thomas Butler Senior, as
executors and trustees of his will. The Deceased died a
widower aged 86 years of age on 18th May 1963 (accordingly,
the provisions of the Succession Act 1965 which came into
effect on 1st January 1967 do not apply, (S.9(4) of the Act
of 1965). On 28th January 1964, a Grant of Probate to the
estate of the Deceased issued to Martin Butler Senior and
Thomas Butler Senior.

The will of the Deceased contained a Power of Appointment.
Thomas Butler Senior died intestate on 10th December 1966
without exercising the Power of Appointment contained in the
will of the Deceased. The death of Thomas Butler Senior was
untimely - he was only 53. If he was the donee of the Power,
then the default provisions would take effect and all of the
objects of the Power would take equally. The Defendants (and
the independent witness from 1977 to 1992) say that that was
the understanding of the entire family throughout all of the
period 1956 - 2002.

Martin Butler Senior made his last will and testament dated
11th April 1996 and he died aged 85 years of age (described
in his death certificate as a 'Retired Publican') on 24th May
2002. He purported to exercise the Power of Appointment in
the will of the Deceased, in the will, he (Martin Butler
Senior) made in favour of the Plaintiff subject to a right of
residence in favour of Maureen Butler, wife of Martin Butler
Senior, for her life.

The parties to these proceedings are the only children of
Thomas Butler Senior who was, as stated, a son of the
Deceased. The position of the Plaintiff is complicated by
the fact that while in his capacity he is required to put all
relevant matters before the Court in an impartial manner, he
in fact also advanced arguments in relation to the
construction of the will of the Deceased that were to his own
advantage. The proceedings seek the construction of the
following clause contained in the will of the late Timothy
Butler, Deceased:

"I give, devise and bequeath the lands of
Ballynunnery, purchased by me from the
representatives of the late Patrick Butler
to my son Thomas Butler for his own use
and benefit absolutely. As to all the
rest, residue and remainder of my property
of every kind and nature, whether real or
personal and wheresoever situated,
including my licensed premises at
Raheenduff and the lands of Raheenduff and
Ballynunnery, I give devise and bequeath
the same to my son Martin Butler for and
during the term of his natural life and
after his death to such of the children of
my said son Thomas Butler as he shall by
Deed or Will appoint and in default of
appointment to all of the children of my
said son Thomas Butler as tenants in
common in equal shares."

The Special Summons poses the following questions:

i. To whom was the Power of Appointment referred to in the
will of the Deceased granted?

ii. Further or in the alternative, was the power granted to
Martin Butler Senior or to Thomas Butler?

The summons also seeks certain declaratory relief in favour
of the Plaintiff which would not seem to be altogether
appropriate given the capacity in relation to which the
Plaintiff brings the proceedings.

While the two questions posed in the summons most definitely
arise, the questions are incomplete and the replying
affidavit of the First-Named Defendant at paragraph 17 sets
out the additional questions that arise:

(iii) whether in all the circumstances it is unclear from
the terms of the will upon whom the Power of Appointment was
conferred.

(iv) If the answer to (iii) above is in the affirmative
whether the objects of the power take equally?

(v) Whether the Plaintiff is estopped by his conduct or
otherwise from denying the Power of Appointment was conferred
on Thomas Butler? [The Plaintiff contends that the question
of estoppel does not arise.]

(vi) If the Power of Appointment was conferred on Thomas
Butler or the answer to (iii) is in the affirmative, whether
in default of the exercise of the power, which is common
case, the property falls to the objects of the power equally?

(vii) Whether the purported exercise of the Power of
Appointment by Martin Butler Senior is valid?

(viii) Whether the purported exercise of the Power of
Appointment by Martin Butler Senior was ultra vires and void
and liable to be set aside?

(ix) If the power was conferred on Martin Butler Senior
whether it was validly exercised?

(x) The answer to such further or other questions as to the
Honourable Court seems just.

At the opening of the hearing, Ms. Laverty, who appeared for
the Plaintiff, indicated that she was not pursuing some of
the declaratory relief.

THE FACTS:
There are conflicts of fact on the affidavits as to the
belief of the children of Thomas Butler Senior as to upon
whom they believed the Power of Appointment was conferred.
The Defendants and an independent witness (Ms. Carmel Kelly),
a Solicitor who acted for the family, contend that all
parties believed that the power was conferred on Thomas
Butler Senior. The Plaintiff on the other hand contends now
that the Power of Appointment was conferred on Martin Butler
Senior. I am satisfied and find as a fact on the evidence
that at no time prior to the death of Martin Butler Senior
did the Plaintiff ever convey or suggest to his solicitor or
his brothers or sister that Martin Butler Senior had the
Power of Appointment even though there were two express
written family arrangements in which the issue may not have
been central, but to which such belief was relevant. The
Defendants and the solicitor say that insofar as the lack of
certainty was expressed in relation to upon whom the power
was conferred that this was expressed to satisfy the
requirements of a finance house (when the Plaintiff was
raising the finance to develop a site on part of the lands in
1979/1980) and did not compromise their belief that the Power
of Appointment was conferred on Thomas Butler Senior. As at
the date of the making of his will by the Deceased in
November 1956, the position in the family was as follows:-

1. Martin Senior was married for about eight years, but had
no family. The Plaintiff's evidence was that he thought his
uncle was in his early 40's at the time and that his aunt by
marriage (Martin Senior's wife) was about 36 years old. It
seemed unlikely that there would be any children in the
family of Martin Senior.

2. Thomas Senior was a few years younger than his brother,
Martin Senior. In the family of Thomas Senior was his wife
and four children whose approximate ages at the time were
Mary (8), Tim (5) and the Plaintiff, Martin, and the
Defendant, Tom, who were twins aged about 2 years old.

In broad terms, the scheme of the will was that
Thomas Senior was given certain lands outright. Martin
Senior was given the residue, including a licensed premises
and certain lands for his life. After the death of Martin
Senior, the properties in which Martin Senior had a life
interest was, subject to a default of a deed or a will
exercising a Power of Appointment, to go to the four children
of Thomas Senior as tenants in common in equal shares.
However, there was also an in-built protection in the will
for the wife of Michael Senior, who was given a right of
residence and support and maintenance in the dwelling house
at Raheenduff, and for a weekly sum to be paid to his
daughter-in-law if she went to live elsewhere. In short, the
Deceased seemed concerned that both his sons, Martin Senior
and Thomas Senior, and their respective dependents were
provided for.

While certain events occurred after the coming into effect of
the will of the Deceased on his death, to which I will refer
to briefly, the factual context in which the will was 'made'
is where most if not all assistance in the construction of
the will is to be obtained. In short, the will must be
looked at and construed as at the date of its making and at
the date of death.

The first replying affidavit of Thomas Butler states that the
reason the estate of the Deceased was not administered in
1964 was because of the non-cooperation of Martin Senior, who
was disappointed that he was only left a life interest in
certain properties of the will of the Deceased. The
Plaintiff in oral evidence said that he was not aware of
this, even though he was the closest of his siblings to his
uncle. Even allowing that Martin Senior 'kept himself to
himself', I find it difficult to accept that the Plaintiff,
in whose favour his uncle purported to exercise the Power of
Appointment and who was closest, knew nothing of what could
be understood as a possible disappointment. In the same
affidavit, the Defendant, Thomas, avers as follows:

"I believe that the Power of Appointment
was conferred on my late father and not on
my uncle, Martin Butler, because the
objects of the power were myself and my
siblings, and my father would have been
the best placed to decide who, from
amongst his children, might benefit or,
alternatively, if we should benefit
equally or in particular shares and
proportions."

When giving evidence on affidavit or orally, the Plaintiff
did not take issue with this proposition that the person best
placed to decide concerning the parties to this action would
have been Thomas Butler Senior.

In 1979/1980, the Plaintiff was in course of getting married
and a site was identified on the lands in which his uncle,
Martin Senior, had a life interest. The Plaintiff required a
mortgage from a lending institution to achieve his objective.
I am satisfied and find as a fact on the evidence of Ms.
Carmel Kelly, Solicitor, that doubt had been expressed by the
lending institution as to the title to the plot upon which
the premises were to be built and for the avoidance of that
doubt and no other, and as a comfort to the lending
institution, the Defendants ensured the Plaintiff could
pursue the sale by consenting to the vesting of the plot of
ground in which they and the Plaintiff had a contingent
interest. If the Defendants had no interest in the property,
their consent would have been unnecessary. The averment for
the Defendants is that their action was predicated on the
firm belief of all involved, including the Plaintiff, that
the entitlement to all the property, subject of the life
interest of their uncle, Martin (which included the plot
expressly referred to in the written agreement) vested
equally in all of them.

On being questioned about this transaction, the Plaintiff
tried to convey the impression that the Defendants did not
confer any benefit on him and that he merely agreed to the
arrangement because there was a doubt as to who could
exercise the Power of Appointment. I find his evidence
unconvincing and I find as a fact that if he had a doubt of
any kind, either as to who could exercise the Power of
Appointment or not understanding or being ad idem with his
siblings on the equal entitlement, he did not convey this to
his solicitor or siblings. In short, he was prepared to take
a benefit and if they proceeded on a false assumption, that
was to be their own misfortune.

Contracts or family arrangements are amongst the few to which
the doctrine of uberrimae fidei applies, (Gordon -v- Gordon
(1816), 3 Swanst 400). In my judgment, there was either a
lack of good faith on the part of the Plaintiff at the time
or the Plaintiff is confused now in 2006 as to his belief in
1980 as opposed to a belief at first articulated in 2002
after his uncles's death. I would in charity prefer to give
him the benefit of having acted in good faith but fault his
memory as unreliable.

I accept the evidence of the Defendants as consistent and
reliable on this transaction. Regretfully, this relevant
transaction, as to its being consistent or inconsistent with
the positions taken up in correspondence in 2002, only
emerged in the replying affidavit of the Defendants. The
land involved in the 1980 transaction was registered land and
there were delays encountered in registration. The Plaintiff
reported his solicitor to the Incorporated Law Society of
Ireland but the administrative or bureaucratic difficulties,
I am satisfied, caused the delay and not the solicitor.
However, in that context, notwithstanding that Ms. Kelly in
evidence admitted to having on occasions limited knowledge of
the family affairs, it seems to me, having been reported to
the Incorporated Law Society, she would have been most likely
to check all dealings with this family with persons in her
office.

In 1987, Martin Butler Senior sought the consent of all his
nephews and his niece to the sale of a site on lands in which
he had a life interest to one Dermot Kavanagh. The Plaintiff
agreed to the sale. However, Thomas Butler, the Defendant,
gave oral evidence that his mother said that she would disown
him if he agreed to the sale. In the events, none of the
Defendants would consent and the proposed sale did not
proceed. It is averred for the Defendants that consequent to
that refusal, relations between the Defendants and their
uncle deteriorated to a very significant extent but the
Plaintiff was not subject to the same degree of change of
deterioration in relations.

In 1992, the wife of Thomas Butler Senior and mother to the
parties of this, Mrs. Bridget Butler, was suffering from a
terminal illness. She had made a will leaving her dwelling
house to her daughter, Mary, lands to Thomas, (the Defendant)
and Tim (the Defendant) and the residue, (monies and
investments), to the Plaintiff. On 14th January 1992, a deed
of family arrangement was entered into whereby all parties
agreed that the cash monies would be applied to the hospital
maintenance of the mother and that those who had a real
prospect of inheriting the fixed assets (lands and premises)
would agree to these being sold on the mother's death and all
four children would share in the mother's estate as tenants
in common in equal shares. The mother died on 22nd January
1992, approximately just a week later.

Again, while this has no bearing on the construction of the
will, it is consistent with the family acting on the basis of
tenants in common in equal shares. Again, this document and
the facts surrounding it only came to light in the Defendants
referring to it in the replying affidavits. In giving
evidence on the first day of the trial, the Plaintiff
acknowledged that the arrangement was of benefit to him as he
would receive one quarter of the entire estate rather than
just the residue. On the second day of the trial on
re-examination in relation to this arrangement, he said: "I
saw no advantage in it."

The administration of the estate of the mother, Bridget
Butler, Deceased, was carried out with commendable
promptitude, the Grant of Probate having issued on the 14th
July 1992, distribution and solicitors' bills, etc., being
signed off for on 21st December 1992. A letter of that date
was written to both the Plaintiff and to his sister (who was
the executrix of Bridget Butler Deceased). The letter to the
executrix does refer to the unresolved matter arising from
the Deceased's will. No action was taken at that time.
However, it is important to bear in mind that only a short
while (some five years) previously, the uncle appears to have
fallen out with his nephews and niece (i.e. the Defendant
nephews and niece) over the sale of the land to which they
had refused.

On 7th December 1995, Martin Butler Senior, accompanied by
his wife Maureen, attended on Mr. Martin G. Lawlor,
Solicitor, for the purpose of making a will. Mr. Lawlor in
his affidavit notes that his client wished to appoint the
farm and public house to his nephew, Martin Butler, the
Plaintiff, subject to a right of residence in favour of his
wife, Maureen, in such property "for her own use and benefit
absolutely." He further averred that:

"(vii) I say that in the course of the
discussions regarding this matter that
Martin Butler explained to me that the
willwas the subject matter of a trust.
He also explained to me that the trust
had been created by his late father, Tim
Butler, who had died in May 1963."

In fact, no trust was created in the will of the Deceased.
"(Viii) I say that there was some
discussion at the time concerning the
Power of Appointment given to Martin
Butler by his father. I did make a note
that for the purpose of advising him
fully regarding the situation, that I
would need a copy of the Grant of Probate
which was subsequently obtained and I say
that having obtained a copy of the Grant
of Probate that the will was duly
executed on 11th April 1996."

Martin Butler Senior purported in his will to exercise the
Power of Appointment contained in the will of the Deceased.
Martin Butler Senior died on 24th May 2002 and probate of his
will issued to his executrix, Catherine Kavanagh, on 8th July
2003.

There is dispute as to what happened after the death of
Martin Butler Senior. The Plaintiff averred in paragraph 11
of his affidavit sworn on 8th July 2005 that there was a
meeting "immediately after the funeral." In oral evidence,
he said that the meeting took place before the funeral. In
his affidavit, the Plaintiff avers that there was pressure
put on him to sign an agreement that all four siblings shared
the life estate of the uncle equally. He said he felt
bullied. The Defendant, Thomas, put the meeting as of 26th
May 2002 in paragraph 12 of the affidavit of on 8th April
2005, which accords with a letter of 11th June 2002 addressed
to the Defendant by Kelly Colfer Son & Poyntz being part of
Exhibit "F" in the Plaintiff's affidavit of 19th November
2004. The letter inter alia states:
2005.
"We are instructed that on the 26th
May 2002, at a meeting of yourself and
your three siblings, it was agreed by all
four of you that all of the property at
Ballynunnery and the property at
Raheenduff would vest in all four of you
(Mary Howlin, Timothy Butler, Thomas
Butler and Martin Butler) as tenants in
common in equal shares."

The reply to that letter is 17th June 2002 and while it deals
with the purported exercise of the power,
it does not challenge the assertion of the agreement of 26th
May 2002.

I can accept that there may have been an insistence by one or
all of the Defendants at the time of funeral of their uncle,
Martin, to establish agreement on where they stood on the
distribution of their grandfather's estate now that their
uncle had died. The Defendant, Tim, lived in Cork and this
was an opportunity to agree and resolve how things would
proceed. In all the circumstances, it was an understandable
concern. It was not put to the Defendant, Thomas, in
cross-examination, that the Plaintiff was bullied or that,
subsequent to 30th May 2002, that the Plaintiff was abused or
intimidated in any way by the Defendants as alleged in
paragraph 12 of the Plaintiff's affidavit sworn on 8th July
2005 and I am satisfied that that did not occur.

If the Defendant requested a written agreement, or any of the
Defendants requested a written agreement, of which there was
no firm evidence, as opposed to a verbal agreement, it would
be understandable in the light of events that were later to
emerge.

In the Plaintiff's affidavit of 8th July 2005, paragraph (3),
he avers inter alia as follows:

"At all times from date of death of my
father, Thomas Butler Senior, to the date
of swearing hereof, my understanding was
that the will of the Deceased, Timothy
Butler Senior, was such as to grant a
Power of Appointment to Martin Butler
Senior. It was never my understanding
that this Power of Appointment was vested
in my father, Thomas Butler Senior."

The Plaintiff's oral evidence was that he had a doubt as to
who had the Power of Appointment and specifically sought to
ascribe that doubt to the doubt referred to in Clause D on
the second page of the agreement of 18th April 1980. This
inconsistency again points to the reliability of the evidence
of the Plaintiff.

When the Plaintiff was asked in cross-examination about his
knowledge of the contents of his uncle's will as at the
meeting on 26th May 2002, the Plaintiff evaded the question
and said that the first time he saw the will was after that
date, i.e. after 26th May 2002. That answer was consistent
with his affidavit evidence but not an answer to the question
put to him. On the Plaintiff's own oral and affidavit
evidence, he was closer to his uncle, Martin Butler Senior,
than any of his siblings and while it is possible that he did
not know that his uncle purportedly exercised the Power of
Appointment in his own favour in the period 1995 to 2002, I
found the evidence and the giving of it unconvincing. So far
as the Defendants were concerned, there was a common
understanding and agreement (as there was in 1980 and 1992)
that all shared as tenants in common in equal shares. The
correspondence in mid 2002 highlighted the difference between
the Plaintiff and the Defendants. In my judgment, the issues
now before the Court should have been brought to the
attention of the Court at that time. I am satisfied and find
as an undisputed fact that the Defendants were shocked in mid
June 2002 to find that what they had all understood as agreed
in late May was not being accepted by the Plaintiff.

In September 2002 an ad-interim transfer of the licence
attached to the public house was sought and obtained by the
Defendant in his proposed capacity as personal representative
of the Deceased. Consequent on court application, draft
accounts in respect of the licensed premises for the period
17th March 2002 to 31st May 2003 were given to the
Defendants. There were representations made at the annual
licensing session of the District Court which were
effectively withdrawn in the interests of preserving the
licence. These, it appears, related to the capacity in which
the Plaintiff sought the transfer of the licence to him,
because as of 24th September 2003, he was the legal personal
representative of the Deceased. In that capacity, he held the
estate as trustee for the persons by law entitled thereto.

All the foregoing can have no bearing on the construction of
the will of the Deceased. The events, however, are wholly
consistent with the understanding and agreements of the
parties, including the Plaintiff, up to and including 26th
May 2002. I am satisfied that seeking to operate on the
primitive shibboleth 'possession is nine points of the law'
is not the underlying legal principle applicable to
arrangements for the settlement of family property.

While appreciating the emotional distress of the litigants
and the anxieties of giving oral evidence, I am nonetheless
satisfied that the equivocation and evasive evidence of the
Plaintiff testified to me the unreliability of his evidence
of events. I note this with regret in a case of a family
with differences and I have erred, I hope, with charity on
the impression conveyed to me.

THE LAW AND THE LEGAL SUBMISSIONS:

Section 90 of the Succession Act 1965 provides for the
admissibility of extrinsic evidence to construe a will. The
Supreme Court in Rowe -v- Law [1978] IR 55 and In re Collins
O'Connell -V- The Governor and Company of the Bank of
Ireland, [1998] 2 IR 596, it was held that the Section
requires two conditions for admissibility:

(i) There must be an ambiguity or contradiction on the face
of the will, and

(ii) It must be necessary to ascertain the intention of the
testator.

Unfortunately, the will was made 50 years ago and there is no
extrinsic evidence available. There is contextual factual
information available about the state of the families and the
members in the families.

Section 99 of the Succession Act 1965 provides that there if
there are two constructions open to a Court, one of which
renders a clause in a will operative and another which
renders a clause inoperative, the one which renders the
clause operative shall apply. While accepting that the point
taken by Ms. Laverty and also by Ms. Stack in submission is
correct, that the Succession Act was not operable as of the
date of the Deceased's death, nonetheless, the principle
enshrined in Section 99 is merely an expression of long
settled law. Accordingly, Section 99 qua Section 99 has
specific but limited application to the proceedings. It has
no application to the identity of the donee of the power
because whichever of the two possible donees is the correct
one, the clause will be operative. If the Court is to chose
Thomas Butler Senior as the correct donee, then, as he did
not exercise the power and all of his children take in equal
shares (as contended for by the Defendants) and the clause of
the will is not rendered inoperative. If the Court were to
chose Martin Butler Senior, the clause is equally operative.
This is not a case where one or other construction of who the
donee was intended to be, would render the clause operative
or inoperative; it would be operative in both eventualities
but with different results.

In my judgment, the base level intention of the testator was
that the objects of the power were to take equally.

In this context, the Court can have regard to
Section 99, or, more particularly, the underlying settled law
in it and save the clause and give effect to the intention of
the Deceased by providing that the property passes to the
children of Thomas Butler equally (which, of course, includes
the Plaintiff).

A. The Construction of a Will.
The Supreme Court in the case of Curtin -v- O'Mahony [1991] 2
I.R. 566 stated that the task of a court in constructing a
will was to give effect to the intention of the testator or
'to place oneself in the armchair of the testator.' The
Court in Curtin's case prevented a substantial partial
intestacy by rectifying a poorly drafted will. The testator
in that case had provided that if he sold his dwelling house
(which was bequeathed to a niece) during his lifetime he
would divide his estate in a certain percentage (which when
added up amounted to 100.5%). He did not sell his house. He
had a substantial residue. Because the bequest of the
residue was contingent on the sale of his house, on the face
of things there would be an intestacy in relation to the
residue and Lardner J. so held in the High Court. The
Supreme Court held that this could not have been the
intention of the meticulous testator and so rectified the
will to give effect to the residuary clause.
While such a situation does not arise here, in this case the
intention of the testator is said be to unclear as to who the
donee of the power was to be, but the object of the
testator's bounty is clear, i.e. the children of Thomas
Butler Senior (the Plaintiff and the Defendants). If the
Court was in a position to identify the donee of the power,
whichever person it chooses, there would be no failure or
partial intestacy in respect of the estate of Timothy Butler
Senior. In my judgment, the intention of the testator is
clear and can be given effect to, even if the donee of the
power cannot be identified with certainty.

In his submissions for the Defendants Mr. Spierin referred to
the case of Howell -v- Howell [1992] 1 IR 290 in which Ms.
Justice Carroll approved the guidelines of Lowry C.J. in
Heron -v- Ulster Bank [1974] NI 44 wherein he sets out at
page 52 of the judgement guidelines to assist in the
construction of a will.

This approach was also applied by Macken J. in the Bank of
Ireland -v- Gaynor & Others (Unreported High Court 29th June
1999).

B The Guidelines adumbrated by Lowry L.C.J. were 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 presumption against
intestacy and in favour of equality.

5. Then see whether any rule of law prevents a particular
interpretation from being adopted.

6. Finally, and I suggest not until the disputed passage has
been exhaustively studied, one may get help from the opinions
of other Courts and Judges on similar words, various binding
precedents, since it has been well said that "no will has a
twin brother" (per Warner J. in the matter of King 200 N.Y.
189, 192 [1910]), but more often as example (sometimes of the
highest authority) of how judicial minds nurtured in the same
discipline have interpreted words in similar contexts."

Guideline 1:-
This requires the Court to have regard to the immediately
relevant portion of the will. In the case of Howell -v-
Howell, the Court concentrated on the very specific part of
the will that had given rise to the difficulty. In the
Howell case, the clause being construed was:

"I devise and bequeath my farm of land in
the townlands of Drumpeak, Corinshigo,
together with the furniture and machinery
thereon, to my brother Joseph. I give,
devise and bequeath all my stock and any
other assets that I may have to my brother
Richard."

The Court considered that the immediately relevant portion of
the will was the words "any other assets I may have."

It was submitted by Mr. Spierin in the instant case,
therefore, that the immediately relevant portion of the will
of the Deceased is not the entirety of the clause quoted in
the Special Summons but is that portion which actually
confers the special power, i.e.:-

"...to such children of my said son Thomas
as he shall, by Deed Or Will, appoint and
in default of appointment to all of the
children of the said Thomas Butler as
tenants in common in equal shares."

It was submitted that there is no ambiguity in the immediate
relevant portion. If one considers same as a piece of
English, it is clear, and it was submitted by Mr. Spierin
that the power was conferred on Thomas Butler, Senior.

On the other hand, I have had the benefit of the evidence
tendered on behalf of the Plaintiff by Prof. Nicholas Daly of
UCD, who deals with the matter on the basis of the
information given to him on the face of the affidavit as a
piece of English. I will return to this matter in due
course, suffice it to say that the factual context under
which the Deceased made his will does not appear to have been
transmitted to Prof. Daly, who actually simply was asked to
carry out an exercise and quite specifically addressed his
mind to it. Accordingly, the position about Thomas Butler
Senior and his family and Martin Butler Senior and his family
do not appear to have been any part of the consideration of
the Professor.

Accordingly, if the Court considers that the immediately
relevant portion of the will of Timothy Butler Senior is the
entirety of the clause set out in the summons that it is not
possible to ascertain the intention of the testator as to
identify the donee of the power by considering the entire
clause as a piece of English, but by their repeated use of
the pronoun "he", the testator could have been referring to
either of his sons.

Guideline 2:-
This suggests that the Court have regard to other material
parts of the will only if there is an inability to find
meaning of the will in the immediately relevant part of the
will in order to make "harmonious sense" of the whole. It
was submitted by the Defendants that there is no disharmony
in identifying Thomas Butler Senior as the donee of the
power. This was vigorously challenged by the Plaintiff. It
was submitted that it would be most harmonious if the parent
of the objects of the power should exercise the power
because, as was referred to in another case under the
Succession Act by Kearns J. In re ABC Deceased XC & Others
-v- R.T. & Others, [2003] 2 IR 250): 'Parents must be
presumed to know their children better than anyone else.'

Counsel for the Plaintiff took issue with reference to this
authority as being applicable in a particular legal context
only. However, it seems to me as a matter of ordinary common
sense that the person best placed to know their own children
is generally the parent of that child rather than their
uncle. Equally so, though it did not happen, immediately
after the Deceased died Thomas Butler Senior could have by
deed made an appointment. Unfortunately, his untimely death
did not bring that about and there may also have been
differences between himself and his brother and matters were
left in abeyance.

If one then has regard to Guideline 3 and to the scheme of
the will as a whole, to decide what the testator was trying
to do, it seems to me that he was ultimately trying to
benefit the children of Thomas Butler Senior. A Court in
seeking to resolve the apparent ambiguity, if such exists, in
favour of Thomas Butler, being the person with the power, it
seems to me that the parent of the objects of the power would
be the person best placed to decide how the power was to be
exercised. It fits in with what the testator in my judgement
was trying to do and the testator would not have anticipated
the untimely death of his son, Thomas Butler Senior.

The submission that the donee of the power was to be Martin
Butler Senior because, in the events that have happened, the
purported exercise by Martin Butler Senior in favour of the
Plaintiff has brought about a position where the nephew
closest to Martin Butler Senior would be the person most
likely to have been appointed by him and would look after
Martin Butler Senior's widow. This is, however, to proceed
on the basis of the argument post hoc ergo propter hoc. The
Deceased was a farmer, not a clairvoyant, and it is a matter
of pure conjecture that matters have emerged as they have.
In my judgement, the determination that Thomas Butler was the
intended donee of the power accords with what the entire
family believe to be the case as did their solicitor over a
long period of time. I think it unnecessary to retrace here
what I have said earlier about the general factual background
of affairs between the death of the Deceased and the
intimation in June 2002 of the understanding of the
Plaintiff. In my judgement, the construction which
identifies Thomas as the donee of the power does no violence
to the intention of the testator. Further, it accords with
Guideline 4, which refers to the application of the
presumption of equality and against intestacy. I cannot with
any certainty say that the Deceased intended to confer the
power on Martin Butler Senior and there is nothing in the
immediately relevant portion of his will or in the scheme as
a whole that would tend to resolve the suggested ambiguity in
his favour. I would hold that the objects of the power have
taken equally. By severing the portion of the clause which
contains the alleged ambiguity and bracketing the expression
"(such of the children of my said son, Thomas Butler, as he
shall, by Deed Or Will appoint, and in default of appointment
to) all of my children of my said son Thomas Butler as
tenants in common in equal shares" the same result ensues the
Court is rendering the bequest operative and in accordance
with settled law (as expressed in the Succession Act 1965) in
giving effect to the intention of the testator in accordance
with Curtin -v- O'Mahony earlier referred to.

C. Uncertainty In Powers of Appointment
In my judgement, there is no uncertainty as to who had the
Power of Appointment, it was Thomas Butler Senior; but even
if there was an uncertainty, I would approach the matter in
this way. There are some passages in the textbooks and indeed
in some of the older case law which are of assistance in this
regard. I have been referred to certain passages in both
Delaney Equity and the Law of Trusts in Ireland, 3rd ed., at
pages 85 to 88, and also Farwell on Powers, 3rd ed. (1916) at
page 132 et al.

In the case of Earl of Bandon -v- Moreland [1910]
1 IR 220, the position was that a power was granted under a
settlement to 'A. and his heirs and assigns' to 'select' part
of the settled lands which were thereupon conveyed to 'A.,
and his heirs or assigns' forever, or as he or they shall
direct.' It was held that, as A. was a person ascertained
within the period, he might validly exercise the power and
that, though the power was bad so far as given to his 'heirs
or assigns' since they were donees not necessarily
ascertainable within the period, the invalid portion was
severable. The words 'heirs or assigns' could not, in the
context in which they were used have effect as words of
limitation, since a power was not a hereditament. The words
"heirs and assigns" is dealt with specifically in the report
at page 288 in the judgment of Pimm J.. In my judgment, in
the will of the Deceased, after the words "I give, devise and
bequeath same to my son Martin Butler for and during the term
of his natural life", the words "and after his death" are
superfluous and tautologous because at the end of his natural
life, death was the inevitable and it was quite unnecessary
to conjunct "and after his death to", and accordingly in my
judgment, the immediately relevant clause is that identified
by Mr. Spierin.

D. The Power of Appointment purported to be exercised by
Martin Butler Senior
Martin Butler Senior, by his will, appears to have attempted
to exercise the Power of Appointment in favour of the
Plaintiff. If he honestly believed he had a power by deed or
will to so appoint, it is strange that the difficulties in
1980 arose at all, on the basis that he could have carried
out his wishes at that time without any question of waiting
for a will and avoided, on that version of affairs, the
apparently unnecessary joinder in the deed of 1980 of the
Defendants in this case. The position in this case is that
the Deceased, the grandfather, left to Thomas Butler Senior
to deal with matters as he saw fit as between his own
children rather than confer on the childless brother, Martin
Senior, the entitlement to distribute amongst the siblings
that have appeared before me. The purported exercise, though
questioned by Mr. Spierin, had as its answer, if it were a
valid exercise, the reply from Ms. Stack, that it accorded
with what was laid out in Williams 6th ed. 1987 at page 414
(which sets out the essentials for the exercise of a special
power by will) viz:

"To exercise a special power, there must
be either (1) a reference to the power or
(2) a reference to the property the
subject of the power or (3) an intention
otherwise expressed in the will to
exercise the power."

Now while undoubtedly there is an error in the information
given to the solicitor, Mr. Lawlor, because the property was
not subject to a trust, that, in my view, is a serious error,
but in the circumstances of this case, it is nihil ad rem
because I am satisfied that the donee of the power was Thomas
Butler Senior.

That determination effectively should resolve the matters in
issue between the parties.

E. ESTOPPEL:
However, there remains outstanding the question of estoppel,
and I embark upon a determination of this with reluctance and
merely for completion. I accept the submissions of the
Plaintiff that essentially that it has nothing to do with the
construction of the will. However, if I were wrong in either
my approach to the application of the guidelines, then it
might fall to be determined. Accordingly it would leave a
situation in which the exercise by the power or purported
exercise by Martin Butler Senior would be ultra vires and,
accordingly, it is necessary to proceed to consider estoppel.
Mindful that it is a family dispute I do not want to say any
more than is necessary and I err on the side of charity. The
evidence of the parties is in conflict on the point as to the
entitlement of Thomas Butler Senior to appoint, the case of
the Defendants was that it was always the belief of the
Plaintiff and the Defendants that the Power of Appointment
had been conferred on their father, Thomas Butler Senior. It
was only after the death of Michael Butler Senior when the
Plaintiff had, as he perceived, I presume, the benefit of the
purported exercise in his favour that he contended that his
uncle, Martin Butler Senior, had the Power of Appointment.
This might have been viewed by the Defendants as disingenuous
or opportunistic or otherwise. I am content to merely follow
the findings of fact I have made in the judgment without
attaching such expressions (however justified) to his
position.

The Defendants, amongst themselves, throughout the entire
period until they receive the correspondence in mid 2002,
understood that the Plaintiff was ad idem with them and that
their father was the donee of the power. It is perhaps nihil
ad rem and perhaps merely looking with the benefit of
hindsight that they would have acted differently if the
Plaintiff had said to them, or to his solicitor, Ms. Kelly,
that he believed that his uncle, Martin Butler, at all times
was the donee of the power. They conferred benefit both in
the document of 1980 and 1992 to which I have referred and he
was content to accept the benefits. If he did know, he
refrained from conveying to them frankly what his
understanding and agreement was. However, notwithstanding
that Ms. Kelly did say that she did not deal with all and
every last detail of all the transactions of the family over
the period in which she was dealing with them, she did act as
the family solicitor over a long period. She had no axe to
grind. She was a professional person, independent, and her
understanding from dealing with the family and each of its
members (and she dealt with them, including the Plaintiff as
an individual client) was that at all times the parties
understood that Thomas Butler Senior was the donee of the
power. Now the fact that the finance house expressed the
doubt in 1980 (and that the Defendants signed the document)
that is the only doubt that was ever conveyed to the
Defendants or to the solicitor who was dealing with the
matter. Whatever views the building society or lending
institution had are nihil ad rem. They were laid to rest by
everyone joining in the deed. It seems to me that except
from family loyalty and filial disposition towards their
mother in 1992 that the Defendants in these proceedings, who
had specific assets conferred to them by the will of their
mother, had no reason to relinquish that certainty and throw
the entire lot into a mixed fund with the Plaintiff in the
absence of a belief that as they were sharing equally with
him, so also he would with them in their grandfather's
estate. The property comprised in the mother's estate has
been let and the Plaintiff has always been paid and has
accepted his share of the rent, again another indicator.
These do not, however, go to the determination of the
construction of the will but rather to the conduct of the
parties. It seems to me, accordingly, that the Defendants
acted to their detriment in the certain belief that their
brother, the Plaintiff, accepted that the property comprised
in the estate of their grandfather would pass equally to all
of them. They conferred the benefit on their brother from
the estate of their mother, to which he was not entitled and
they did so in the belief that the brother accepted, as
represented to them, that the estate of Timothy Butler,
Deceased, would pass to all of them equally. The ingredients
of an estoppel are present. I do, however, accept that the
certainty of fact does create a difficulty but if that
difficulty of certainty of fact arises, it arises from either
the Plaintiff in bad faith not disclosing what he says in one
of his affidavits he believes and believed throughout that
Martin Butler Senior was the donee or that he did not so
believe and was quite happy to go along with them, so long as
benefit was available to him, but when it appeared that the
scales had tilted in his favour by the purported exercise by
his uncle, he was prepared to stand and take advantage of
that position. It seems to me that (1) there was a belief
fostered and encouraged by the Plaintiff, which belief is
independently confirmed by Ms. Kelly.
(2) There were detrimental acts on the part of his siblings
in relation to the estate of their mother predicated on the
basis that the estate of Timothy Butler would pass equally
and, indeed, in the case of the 1980 document. Whatever
benefit in 1980 Thomas received by way of a right-of-way and
Martin receiving the site with good title, the two other
siblings had nothing whatsoever to gain by appending their
name or agreeing to the arrangement. They had no benefit in
any shape whatsoever.

Furthermore there was an acceptance also by the Plaintiff of
the benefit of the estate from his mother and this is a
continued acceptance in the form of rental income, albeit
directed through the solicitors, and I can understand that,
given the fact that matters became disputatious as between
the Plaintiff and the Defendants.

END OF JUDGMENT

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