The Gazette 1976

January-February 1976

GAZETTE

made his last will on 15th February, 1962. He was survived by his widow and 8 children. The 4 eldest sons were respectively 14, 13, 11, and 9 years in March, 1963, the eldest daughter was 8, the youngest son was 6, and the elder of the two youngest daughters was 2 years in 1963, while the youngest daughter was only born in Sep- tember, 1964, after the will was made. The provisions in the Will as to the lands were inoperative at testator's death, as he had sold most of them during his life-time; apart from that, the Testator had become very wealthy at his death, and, after payment of death duties, left an estate worth £335,000. In the circumstances prevailing at his death, the testator had undoubtedly failed in his moral duty to make proper provision for his children, but had not done so deliberately, as he could not have foreseen the high rise in the price of land. Francis, the eldest son, is an accountant with bad health, but the other sons have pursued farm- ing. Actuarial evidence has been given as to the needs of the daughters. The principle, however, must be that no child has a right to any portion of the estate. In the exceptional circumstances of this case, the widow is statutorily en- titled to 50% of the estate. The remaining half of the estate will be be divided between the 8 children as follows: Francis—15%; Noel— 12.5%; Thomas—12.5%; Peter— 12.5%; Maria Olivia—12%; Kevin —11%; Bernadette Catherine— 12%; and Lorena—12.%. As Estate Duty has already been paid, these percentages are to be paid net. A declaration will accordingly be made that in the circumstances, the testator failed in his moral duty to make proper provision for his children, and a direction that half the estate be distributed in accord- ance with the specified percentages for the children. Woods and others v. Doad and others — Parke J. — unreported — 28th May, 1975. Upon hearing a Circuit Appeal, the High Court may not state a second case stated to the Supreme Court, but is entitled to hear further evidence until judgment. The applicant applied for an order for a new tenancy under the the Landlord and Tenant Act 1931 relating to the Corn Exchange Building. The Circuit Court granted

accordance with law. Up to the issue of formal judgments, the Judge has jurisdiction to hear further evidence or legal argument. Accordingly the Court held that the second case was not maintain- able, and should be struck out. Walsh J., dissenting, would have held that it was open to the High Court Judge hearing a Circuit Appeal to state a case at any stage, including the preliminary stage, of the proceeding. He would have also held that the High Court Judge had power to state a second case, and was justified in doing so here, in view of the evidence. Dolan v. Corn Exchange Buildings (No. 2) — Supreme Court (Walsh, Henchy and Griffin JJ.), Majority judgment by Henchy J. and dissent- ing judgment by Walsh J.—unreported —4th December, 1975. Glasnevin Cemetery, the property of the defendants since 1846, was transferred to a new Cemeteries Committee by the Act of 1970. On 29th September, 1970, the plain- tiff Corporation issued proceedings for the recovery of £18,300 rates from the defendants in respect of Glasnevin Cemetery. O'Keeffe P. held that this amount was due as the Commissioner of Valuation had rated the defendant as occupiers of the premises. In Dublin Ceme- teries Committee v. Commissioner of Valuation, (1897) 2 I.R., the contention of the plaintiffs that, as a charity, they should not be rated, was rejected. But by virtue of S. 63 of the Poor Relief (Ireland) Act 1838, it is abundantly clear that a cemetery is not to be rated, unless a private profit is made. It follows that an occupier of a cemetery cannot consequently be rated. If an alleged rated occupier proves that he is not the occupier notwithstanding that he is listed as such on the valuation lists, the action against him must fail. The defendants here have never been in receipt of any private profit, and the plaintiff's claim must fail. In this case the determination by the Commissioner of Valuation to rate the cemetery was made without jurisdiction. The appeal will con- sequently be allowed. Dublin Corporation v. Dublin Ceme- teries Committee — Supreme Court (Walsh, Henchy and Griffin JJ.)— Separate judgments by Walsh J. and Henchy J. — unreported — 12th November, 1975. Glasnevin Cemetery is not liable for rates

the application, and the respon- dents appealed. The appeal came before Butler J. in October, 1971, and, in pusuance of S.38 (3) of the Courts of Justice Act, 1936, Butler J. stated a case upon two questions for determination to the Supreme Court, who duly delivered judgment on 10th May, 1973 — see (1973) I.R. 269. When the case was sub- sequently resumed before Butler J., it was contended that the Judge should permit evidence to be given of the granting of full planning permission, which had occurred meanwhile. The Judge was in- clined to this view, but stated a second consultative case of three questions for determination by the Supreme Court. The Supreme Court decided to determine as a preliminary point whether the High Court Judge on a Circuit Court Appeal could validly state a case to the Supreme Court for a second time, and was thus led to construe S. 38(3) of the Courts of Justice Act 1936. Henchy J. delivering the majority judgment of the Court (Griffin J. concurring) stated that the main points of S. 38(3) were: (1) The case must be stated by a Judge hearing a Circuit Appeal. (2) It must be stated as a matter of judicial discretion on the application of either party. (3) It must be stated on a point of law directly arising on such appeal. ,(4) If a question of law is referred to the Supreme Court the Judge may adjourn for pro- nouncement of his judgment— not for the further hearing of the appeal. No power is given in the Section to adjourn the hearing of the appeal. It follows that, upon the hearing of a Circuit Appeal, the High Court Judge may only state a case at the stage when he is actually adjourning the pronounce- ment of his judgment, and not at any stage of the hearing. If the Legislature has confined a case stated under S. 38 (3) to the stage when the hearing had come to the point of adjudication, it follows that it was not intended that there should be more than one case stated in any appeal. But even if the High Court Judge, in stating a case to the Supreme Court, must adjourn the pronouncement of his judgment, this does not mean that meanwhile he is deprived of his inherent jurisdiction to take such steps as are necessary to lead to a determination of the matter in