The Gazette 1976

J UNE /J U LY 1976

GAZETTE

grandson and not Basil's brother, Ossian. In this respect, he agrees with Kenny J. Basil's eldest son, Walter, is given a life estate, if he is born within 21 years of Sir Will- iam's death, which he was. It seems that the testator was endeavouring, in so far as he could, to tie up this residuary personalty on the basis of primogeniture to his male issue, conscious of the fact that he would thereby further endow each succeed- ing holder of the title. In other words, succeeding Gouldings would benefit from these dispositions. The Chief Justice therefore held that the bequest of residuary personal estate after the final life estate in favour of Walter, was intended by the testator to continue down the male line, and then to go to the distaff side to its exhaustion, and then fin- ally go to the testator's daughters as tenants in common. Kenny J. had followed Re Hubbardd's Will Trusts — 1963 Gh.D. — that, after the life estate in favour of Walter, the property was a gift to his male issue, and would thus offend the Rule against Perpetuities; accord- ingly the chain was broken, and all subsequent interests were automa- tically void. The Chief Justice dis- agrees, holding that the overriding intention of the testator was to create an estate tail, and it is the duty of the Court in relation to per- sonal estate, to carry out the testa- tor's intentions as far as possible. As the testator intended to give his residuary personal estate after two life estates to Walter as entailed property, which he could not do in the case of personalty. However, in this case the personal estate on the succession of the interest of Walter becomes Walter's absolute property. This was the view of the Chief Justice and Walsh J. Bank of Ireland v. Sir Basil Goulding and others — Supreme Court (Full Court) — Majority judgment of Budd, Hcnchy and Griffin JJ. — Minority judgment of O'Higgins, C.J. and Walsh J. per the Chief Justice — unreported — 14 December 1975. Injunction to restrain passing-off of trademark affirmed on appeal. C & A Modes carry on a retail clothing business in a chain of 65 shops in the United Kingdom and Belfast, and use the trademark "C & A". The defendants, O'Toole and McGlure, adopted "C & A" as a component of G & A (Waterford) Ltd., and used this symbol on their vans, thus causing confusion in the public mind between their business

edly Sir William intended to tie up this property, in so far as he could do so, in the same manner as the Baronetcy. It is contended that the life estate given by the will to Wal- ter, followed by the implied gift to his male issue, as well as the limita- tions over in the event of future male issue, in the context of the will, should, by the application of the doctrine of cy-pres, be construed as an estate tail to Walter. The effect of this would have been to give Walter an estate in tail male after the life estate given to Sir Basil. Griffin J. held that the precatory words "but my desire is that such property shall go in tail to the hol- der of the said title" are to apply only if Walter could take absolutely — i.e. that Walter was not born within 21 years of the death of the testator in 1925. The cy-prés doc- trine is to be applied, precisely because of the implied gift to the male issue of Walter and the subse- quent limitations over offend against the Rule against Perpetuities. The cy-pres doctrine only applies to real estate, and cannot therefore be applied to personal estate, as in this case. Therefore the successive life estates given by the testator to Sir Lingard (his son), Sir Basil (his grandson) and Walter (his great- grandson) are valid, but the implied gift to the male issue of Walter is void. Kenny J. was correct in hold- ing that, as the implied gift to the male issue of Walter is void, all gifts which follow are void. When Walter died, there will be an intes- tacy, and the residuary personal estate will be distributed amongst the next-of-kin of the testator. The majority of the Supreme Court (Budd, Henchy and Griffin JJ.) accordingly dismissed the appeal. The Chief Justice, delivering the minority judgment, mentioned that, after legacies, Sir William's will established a residuary trust fund for the purposes therein declared, and it is clear that the testator intended to dispose of all his property. Having established the Baronetcy Fund of £20,000, he directed that the in- come be paid to the person for the time being entitled to the Baronetcy. Having disposed of his real estate in tail male, it is speculative whether the testator, in disposing of his per- sonal estate, would realise that such personalty would vest absolutely in the ultimate donee in tail, i.e. Wal- ter. In the clause bequeathing the male issue of Basil (the eldest of Lingard's sons) to the second son of Lingard, i.e. Ossian. But the general intent of the will was clearly to benefit Walter, the testator's great 8

and G & A Modes, and defendants intend to open a "C & A" shop in Dublin, thus adding to the con- fusion. The submission of the defen- dants that the evidence did not sup- port the finding that the conduct of the defendants is likely to lead to confusion, is rejected. The name "C & A" was plainly chosen to confuse the public. The contention, that, as plaintiffs have no direct retailing outlet in the Republic, they have consequently no protectable good- will in the Republic is rejected. As the plaintiff's right to their good- will h'ad been violated by the pass- ing off, the law assumes a resulting damage. As there was a continuous completed tort, the plaintiffs were entitled to the injunction sought. The appeal is consequently unani- mously dismissed, and Finlay P. is affirmed. (See September 1975 Gazette, Vol. 69, No. 7, page 209.) C & A Modes v. C & A (Waterford) Ltd., C & A (Finance Ltd.) and others — Supreme Court — O'Higgins G.J., Henchy and Kenny JJ. — Separate judgments by Henchy J. and Kenny J. —• unreported —• 16th December 1975. CORRECTION— January-February Gazette Woods v. Dowd It was inadvertently stated as fol- lows in the second last paragraph of this judgment: "In the exceptional circumstances of this case, the widow is statutorily entitled to 50 per cent of the estate". This would have been correct if she had had no children. But under S. 111 (2) of the Succession Act, 1965, a widow who leaves children is only entitled to one. third of the estate. Accordingly the words "One third" should be substituted for "50 per cent" in that sentence. The next sentence should íead : "The remaining two thirds (instead of one half) of the estate will be divided between the 8 chil- dren as follows :". In the last para- graph, the words "and a direction that two thirds of the estate be dis- tributed" should be substituted for "half the estate" as printed.

PRESIDENT Patrick C. Moore Vice Presidents Bruce St. J. Blake Gerald Hickey Director General

James J. Ivers, M.Econ.Sc., M.B.A. Librarian & Editor of the Gazette Colum Gavan Duffy, M.A., LL.B. (N.U.I.) Telephone 784633 The Editor welcomes articles, letters and other contributions for publication In the Gazette.