HIGH COURT
Record No. 1988/399 Sp Ct 5
IN THE MATTER OF THE ESTATE OF ANDREW EGAN DECEASED
BETWEEN
JOHN DILLON AND MARY DILLON 
PLAINTIFFS
AND
THOMAS DILLON AND THE ATTORNEY GENERAL 
DEFENDANTS
Judgment of Mr. Justice  Egan delivered the 11th day of June 1989.

Andrew Egan was a retired farmer from Ahascragh, Co. Galway; when he died at the age of 77 on the 18th December 1985. A few months previously on the 12th September 1985 he had made his last Will which contains the following clause:
"I direct my Executors to sell all my estate both real and personal not hereinbefore specifically bequeathed and, after payment of all the aforesaid legacies, my lawful debts, funeral and testamentary expenses, to apply same at the discretion of my Executors for Masses for the repose of my soul, the soul of my deceased wife and the souls of all my deceased relatives".
Earlier in the same year and prior to making his Will the deceased had sold his farm of land at Ahascragh for the sum of £62,000 and the sale was closed on the 6th August 1985. Following on completion a statement of account and a cheque for £58,259.84 representing the balance of the proceeds of sale was forwarded to the deceased.

In addition, the deceased also had a current account in the Bank of Ireland which usually stood at £2,000 to £3,000. Probate of the said Will was granted to John Dillon and Mary Dillon the executors therein named who are the Plaintiffs in this suit and the said Probate was granted on the 29th May 1986.

The said Will had contained pecuniary legacies to nephews and nieces and in-laws totaling £8,500.
At the date of his death the deceased was the owner of a dwelling house and approximately one acre of land on which he resided. This property was old for £15,000 in the course of
the administration of his estate, the sale being closed on the 21st August 1987. The proceeds of this sale were used to pay auctioneer's fees, funeral expenses, Probate costs, costs of sale and the pecuniary legacies totaling £8,500, leaving a small balance of £2,132.93 to the credit of the estate. It is agreed by all parties that this is clearly caught by the direction as to Masses.
His other Bank Account (which was a deposit account) was credited with a lodgment of £43,259.84 on the 8th August 1985, two days after the sale of the land had been completed, and there was no further lodgment to or withdrawal from this account during the lifetime of the deceased. This account with accumulated interest stood at £48,005.09 on the 24th March 1988 and with interest since then probably now exceeds £50,000. It is in the Bank of Ireland, Society Street, Ballinasloe.

The main question for determination by the Court is whether this money is caught by the direction to be used for Masses or whether there is an intestacy in regard to it.
It is argued on behalf of the next-of-kin that there is no ambiguity in the Will. They rely on the fact that the testator directed his executors to "sell" all his estate both real and personal not therein before specifically bequeathed and after payment of the legacies, his lawful debts, funeral and testamentary expenses, to apply "the same" at the discretion of the executors for Masses etc. It is argued that it is only the proceeds of the property still unsold at the date of the testator's death (i.e. the dwelling house and one acre) that could, after payment of the specific legacies, debts, funeral and testamentary expenses, be applied for Masses. The land had already been sold and converted into money and it is argued that money cannot be sold.
The Attorney General, however, argues that there is an ambiguity in the Will in that the testator's direction is to sell all his estate both real and personal not therein before specifically bequeathed and to apply "the same" for Masses after payment of all the legacies, debts and other expenses. They say that "the same" could and did refer to all the testator's estate both real and personal after payment of the legacies, debts and expenses.

If the argument of the Plaintiffs is correct it means that there is an intestacy as regards what remains of the proceeds of the sale of the farm and this is a sum exceeding L50,000. It would go to the next-of-kin in addition to their specific pecuniary legacies and this, the Attorney General argues, offends the rule that Equity leans against intestacies.

I have referred to the question of whether or not there is an ambiguity in the direction as it is of great importance in deciding whether or not extrinsic evidence can be looked at pursuant to Sec. 90 of the Succession Act, 1965. In the case of:
Rowe v. Law 1978 I.R. p. 55 Henchy, J. stated as follows:
"To sum up, sec. 90 of the Succession Act, 1965, allows extrinsic evidence of the testator's intention to be used by a court of construction only when there is a legitimate dispute as to the meaning or effect of the language used in the Will. In such a case (e.g., In re Julian 1950 I.R. 57) it allows the extrinsic evidence to be drawn on so as to give the unclear or contradictory words in the Will a meaning which accords with the testator's intention as thus ascertained. The section does not empower the Court to re-write the Will in whole or in part. Such a power would be repugnant to the will-making requirements of sec. 78 and would need to be clearly and expressly conferred. The Court must take the Will as it has been admitted to probate. If it is clear, unambiguous, and without contradiction then sec. 90 has no application. otherwise, then sec. 90 may be used for the purpose of giving the language of the Will the meaning which extrinsic evidence shows the testator to have".
I have come to the conclusion that there is an ambiguity in the Will. The direction to apply "the same" could, in my opinion, be construed to mean that all the testator's real and personal estate was to be applied for Masses after payment of the specific legacies, debts and funeral expenses.

This would be in line with the testator’s previous Will made in 1979 wherein he made pecuniary bequests fairly similar to those in the 1985 Will and gave the same direction. If he had died prior to selling his farm his entire estate (apart from the legacies, debts and expenses)would have been bound to be applied for Masses. He was, of course, perfectly entitled to change his mind in the second Will and bring about a position where there would be an intestacy as regards the bulk of his estate instead of it being used for Masses. But did this old man intend to change his mind in this way? I do not think so.
If one looks at the Instructions for the 1985 Will it is perfectly clear that they dealt in the main with changing the pecuniary legacies and not bringing about any other drastic change. After giving directions to his solicitor in regard to changing the pecuniary legacies the Instructions end up with oiic very simple direction "Leave remainder of Will as it stands". His 1979 Will would have resulted in the bulk of his estate being applied for Masses and I am of opinion that he meant the position would remain the sama i.e. that the legacies, debts, funeral and testamentary expenses would be paid and that the residue of the estate would be applied for Masses.
The direction does not entitle the executors to use the residue for any purpose other than Masses but it gives them a discretion as to choice of celebrants, stipends, and venues for the Masses.