Re Murphie, deceased (Hind v Murphie) 1992 Civil Appeal No. 1

• Jurisdiction: Bermuda
• Judgment Date: 13 May 1992
• Date: 13 May 1992
• Docket Number: Civil Appeal No. 1 of 1992
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

daCosta Ag. P.

Huggins, J.A.

Georges J.A.

Civil Appeal No. 1 of 1992

Nancy Ellen Hind

Norman Athern

George Morris (The Executors of the estate of Dorothy Enith Murphy, deceased)

Appellants

and

James Richard Murphie

Respondent

Mr. Moniz for the Appellants

Miss Hatcher for the Respondent

Roddy v Fitzgerald (1857-58) VI HLC 875

Construction of will — Whether share of estate in monetary terms was to include real estate

JUDGEMENT

James Richard Murphie and Nancy Ellen Hind are the son and daughter of the testatrix. By her will dated 10th June, 1986 the testatrix after providing for the payment of all just debts, funeral and testamentary expenses, made a number of specific bequests of her household articles to various members of her family, and released her daughter from a debt owing to her.

Clauses 15 and 17 pose a point of some nicety and it is these clauses that have given rise to the construction summons: Clause 15 provides as follows:

‘I GIVE AND BEQUEATH unto my son the said JAMES RICHARD MURPHIE such sum as represents fifty per cent (50%) of my net estate after payment of all my debts including but not limited to all my funeral and testamentary expenses, probate expenses, stamp duties and bequests as herein set out save and except the provisions of Clause 17 of this my will.’

Clause 17 reads:

‘I GIVE AND BEQUEATH AND DEVISE unto my daughter the said NANCY ELLEN HIND all the rest and residue of my personal estate and all my real estate of whatsoever nature and wheresoever situate.’

The originating summons asked ‘whether the real and personal estate should be divided equally … or whether the interest of James Richard Murphie is restricted to 50% of the net personal estate of the deceased and the real estate belongs entirely to the said Nancy Ellen Hind.’ The judge eventually held that ‘the real and personal estate should be divided equally’, but it appears that the respondent plaintiff had not in fact argued that he was entitled to a share in the realty: he claimed only a sum of money equal to 50% of the net value of the realty and of the personalty (see pp.11 & 15 of the record). The argument based on the use of the word ‘bequeath’ in c1. 15 was a red herring. That there was no claim to the realty can be seen not only from the note of counsel's argument but also from the fact that the judge herself said at p. 24 of the record ‘it is unarguable that the testator's gift at clause 15...