Re McConney
| Jurisdiction | Barbados |
| Judge | Douglas, C.J. |
| Judgment Date | 01 March 1976 |
| Neutral Citation | BB 1976 HC 8 |
| Docket Number | No. 756 of 1974 |
| Court | High Court (Barbados) |
| Date | 01 March 1976 |
High Court
Douglas, C.J.
No. 756 of 1974
Mr. J.S.B Dear, Q.C., and Cottle, Catford & Co. for the trustee.
Mr. H. deB. Forde, S.C. and Mr. N. Miles for Donna McConney and Eric McConney, the children of Donald O'Brien McConney.
Mr. C.A. Phillips, S.C. for Ethelbert Thompson and Others, the children of Ada Athalene Thompson.
Will - Construction — Whether beneficiaries included offspring of illegitimate daughter
Facts: Whether the grandchildren of the testator's daughter A.A.T. were beneficiaries under the will in question — A.A.T. was an illegitimate child of the testator
Held: That the plaintiffs had not succeeded in showing that the common law presumption that children and grandchildren meant legitimate issue could be displaced in these circumstances — The will must be construed as excluding the children of A.A.T. as beneficiaries.
The late Christopher McConney (hereinafter called “the testator”) died on the 11 th of February, 1954. His will dated the 5 th of September, 1952 and the undated Codicil thereto were admitted to probate on the 14 th of January, 1955, and Letters Testamentary were issued to the petitioner in these proceedings and Arnold Thompson who died on the 26 th October, 1970.
Under the terms of the will, the testator's widow, Mary McConney, took a life interest in the testator's real estate, comprising a property known as “Union Villa”, at Welches, Christ Church, and a property know as “Tottenham”, situated at Constitution Road, St. Michael. Subject to the widow's life interest, the testator made several specific bequests including the following:
“I further bequeath to Ada Thompson of St. Peter my automobile for family use, and all my jewellery.”
And:
“I further bequeath to Reginald McConney the sum of $1, 000.00.”
After disposing of certain items of equipment, the testator directed:
“… all my other office equipment must be sold, also my books, the proceeds from same along with all rents collected, and all money in the banks, must be kept by my Executors for the support of my wife, giving her an allowance $35.00 per month and not more than $50.00 per month, for the rest of her natural life.”
Then follows the provision that is the subject matter of these proceedings:
“I further request that after the death of my wife Mary McConney, that the house and land known as Tottenham, situated in Constitution be sold and divided between all my grandchildren including Dona, and Eric McConney of Jackson Ave., Chicago, Ill. U.S.A. share and share alike.”
The widow died on the 5th of June, 1958 and on the 16th of March, 1962 the property “Tottenham” was sold. The money representing the proceeds of the sale and the accumulation of the net income of the property from the 5 th of June, 1958 to 15th of June, 1962 was put on deposit at interest. At the 31 st of December, 1973 the resulting fund amounted to $19,830.00, of which the sum of $1,268.25, being the income for the year 1973, is subject to deduction for income tax.
The testator had two legitimate children, namely Donald O'Brien McConney and Reginald McConney. The former had children living at the death of the life tenant, Mary McConney, namely Donna McConney Ray and Eric McConney, both of whom have now attained the age of twenty-one years. Reginald McConney, who was married in 1956, had no children living at the death of Mary McConney.
The testator also had an illegitimate daughter, Ada Atheline Thompson. She was married to Arnold Thompson, one of the executors named in the will and she and her husband had seven children. In her affidavit, Ada Atheline Thompson deposed to her having resided with the testator's parents throughout their lifetime and having been treated and described by them and by...
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