The Gazette 1973

Guarantee to practise religion in general terms The Constitution had stated that freedom of con- science and the free profession and practice of religion were, subject to public order and morality, guaranteed to every citizen. Therefore it was not merely a question of a guarantee against the State but against everybody else. It was the duty of the Courts to give effect to and to protect the constitutional rights. This attempt to get Mrs. Jamieson to give an undertaking that she would remain a practising Roman Catholic was a quite clear attempt to interfere with her freedom of conscience and it was therefore contrary to the Constitution. It was a condition which was certainly unenforceable and con- trary to public policy. Regarding the condition that Mrs. Jamieson be a Roman Catholic at the time of her father's death, Mr. Justice Kenny said this had obviously been satisfied. She was a Roman Catholic and nobody disputed that. In regard to the condition that in the event of Mrs. Jamieson not being a Roman Catholic at the time of his death or having failed or refused to give the particular undertaking, Mrs. Jamieson would be disinherited, the judge said she had not given the undertaking because she had not known about it at the time. He did not accept that when it was a condition precedent, which was contrary to law, the gift failed. Common sense would seem to indicate that when there was a condition precedent attaching to a gift the object of the law would be achieved by holding the gift to be good and ignoring the condition precedent. Condition precedent should be ignored and gift invalidated In his view, said the judge, the sensible rule to apply was that if there was a gift to a person and there was a condition precedent attached, it was contrary to the Constitution and the condition should be ignored. "In my view, insofar as the first condition is con- cerned, it is fulfilled and insofar as the second condition is concerned it is contrary to the Constitution. In my view the gift to Mrs. Jamieson is valid." The phrase "in the event of my daughter having failed or refused to give the undertaking", implied something conscious—a deliberate knowledge on her part of the existence of an obligation to giving an undertaking, which she did not have. It seemed to him that Mrs. Jamieson was absolutely entitled to the property. He allowed all parties to the proceedings their costs to be paid out of the estate. [Re Doyle, Deed.—Rochford v. Bank of Ireland; Kenny J.; unreported; 15 February 1972] Rule against perpetuities applied. Sir William Goulding, Bart., had an estate in tail male. He made his will in December 1924, when his wife, his son Lingard (born 1883) and four daughters were alive. In 1924 Lingard had two sons, Basil (born District Court (Counsel's Fees), Rules, 1973, S.I. No. 1973, provide for revised scales of counsel's fees in the District Court. The new scales, which cover the in- creased jurisdiction of the District Court under the Courts Act, 1971 (No. 36 of 1971), replace the scales of counsel's fees set out in the Schedule of Costs to the District Court (Costs) Rules, 1970 (S.I. No. 315 of 1970). The Minister for Industry and Commerce has, under Section 2 (2) (a) of the Prices (Amendment)

1909) and Ossian (born 1913). Despite the well-known rules relating to the Rule against Perpetuities, the draftsman of the will drew the will incompetently, and thus gave rise to this construction summons. Sir William gave the residue of his estate upon trust to pay an annuity to his wife for her life, then directed that £20,000 out of the residue be invested in authorised securities, and to allow Lingard to receive the income for his life. Then there were some complicated clauses, in view of the estate in tail male, in directing the income to be paid to male grandchildren, etc. Sir William died in July 1925 and was survived by Lingard, Basil and Ossian. The widow died in 1934 and Lingard died in June 1935. Basil married in 1939 and had three sons : Walter (Born 1940), Timothy (born 1945), both within twenty-one years of Sir William's death, and Hamilton (born 1947). Basil claims that he is now absolutely entitled to the securities representing this sum, on the ground that it is not possible to create an estate tail in personality. Kenny J. held that this contention was well sustained. As regards the residuary real estate, the Rule against Perpetuities does not apply to this. It was also held that the life estate in the personality given to Basil's son if he should be born within twenty-one years from the death of the testator was conscientiously and deliber- ately created. The words in the clause relating to "in case of failure of issue of such grandson" were held to relate to Walter. One must then determine the effect of the Rule against Perpetuities on the gifts made on the event of the failure of male issue of Walter. The lives in being for the purposes of the Perpetuity Rule were Lingard (who died in 1935) and Basil (still alive). Therefore the interest created had to rest within their lives, and twenty-one years after the death of the sur- vivor of them. Walter's sons could conceivably be born outside this period, therefore the implied gift of resi- duary personality is void, as it contravenes the Rule against Perpetuities. Buckley J's judgment in re Hub- bards Will Trusts (1963) Ch., approved. As the implied gift to Walter's son is void, therefore it was held that all gifts which follow it are void, even though Timothy was born within the perpetuity period in 1945. The Rule against Perpetuities invalidates gifts which may rest outside the Perpetuity period. Accordingly if a gift is made to a living person and is expressed to rest on an event which may occur outside the perpetuity period, the gift is invalid. Therefore all the gifts which are dependent on the future of the male issue of Walter are invalid. Therefore the residuary clause in relation to the personal property was effective. When Walter dies there will be an intestacy, and the residuary personal estate will be distributed between the next-of-kin of Sir Wil- liam. Kenny J. acknowledged the assistance he had obtained from perusing Megarry and Wade on Real Property. [Bank of Ireland v. Goulding; Kenny J.; unreported; 2 November 1972] Continued from page 55 Act, 1972, consented to the exercise by the rule-making authority (tfie District Court Rules Committee with the concurrence of the Minister for Justice) of their statu- tory powers to regulate the fees dealt with in the Rules. These Rules can be obtained from the Government Publications Sales Office, Henry Street Arcade, Dublin 1. for 4p and postage.

39 of 1973.

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