60 / 262
Mr. Justice Pringle said he thought that while the
definition of "stopper" in the regulations used the word
"screw-top", that it was intended that it should be a
screw-top which would seal the tube.
While he thought the interpretation of the regula-
tions was not free from doubt, he considered that he
must interpret them in such a manner as to give the
benefit of such doubt to Mr. Hollingsworth.
[A.G. and Suptd. Nagle v. Hollingsworth; Pringle
J.; unreported; 15th February 1973]
Will clause on religion rejected by Judge: New Ross
man's estate for daughter.
This attempt to get Mrs. Jamieson to give an under-
taking that she would remain a practising Roman
Catholic was a quite clear attempt to interfere with her
freedom of conscience and it was contrary to the Consti-
tution, said
Mr. Justice Kenny
in the High Curt,
Dublin, yesterday.
He was giving judgment in an action in which he
was asked to determine the true construction of a will
made by a Co. Wexford shopkeeper, John A. Doyle,
late of the Chalet, New Ross, who bequeathed
his entire estate, valued at £15,758, to his daughter,
Alice, on the condition that she should be a Roman
Catholic at the time of his death and that prior to his
death she would be required to give a firm undertaking
to the parish priest of New Ross of remaining a prac-
tising Roman Catholic. The Judge ruled that Mr.
Doyle's daughter was absolutely entitled to the property.
The action was brought by a Dublin solicitor, John
Rochford, of Lower Ormond Quay, on behalf of Mr.
Doyle's daughter, Mrs. Alice M. Jamieson, now living
in Scotland, against the Bank of Ireland Trustee Com-
pany Ltd., who are the executors of the estate of the
late Mr. Doyle's brother and sister, the late Philip and
Mary Doyle.
In his will dated 12 August 1967 Mr. Doyle, who
died on 11 January 1969, said that in the event of his
daughter not being a Roman Catholic at the date of his
death, or of having failed or refused to give the under-
taking, he disinherited her from participation in any
way in his estate. In that event he appointed John
Redmond Colfer, solicitor, New Ross, as sole executor
of his will and he bequeathed his estate to his sister,
Mary, and his brother, Philip, or their respective heirs
(excluding his daughter) if they should predecease him,
in equal shares.
Catholicism not contested
Mr. Gerard Lardner, S.C., who appeared for Mrs.
Jamieson, said he did not think that it was contested by
anybody that she was baptised a Roman Catholic and
that she still was one. She was arguing in favour of the
validity of the gift to her and claiming that there had
been no failure on her part to perform the condition of
the will on which the gift depended.
Mr. Donal Barrington, S.G., who appeared for the
Bank of Ireland, said he represented both of the estates
of Mary and Philip Doyle. He submitted that if the
bequest to Mrs. Jamieson were to fail, a problem would
arise in relation to the gift—over what precisely it
meant.
The difficulty arose, Mr. Lardner said, in regard to
the fact that she had not given the undertaking that
she would be a Roman Catholic at that time and she
had stated in her affidavit that she never knew before
her father's death that this undertaking was required of
her. She had no knowledge of it and that was the reason
no undertaking had been given.
What the testator (Mr. Doyle) meant, he submitted,
was a conscious refusal on the part of his daughter or a
conscious failure or neglect to carry out his require-
ments. He had never communicated it to his daughter.
"When Mrs. Jamieson found that something of this
nature had been required of her she promptly went to
the parish priest and gave the undertaking."
Wrongful interference
Mr. Lardner said of the condition that she should
remain a practising Catholic, that it was a provision
which constituted a wrongful interference with her right
of freedom of conscience and the free profession of her
religion given to her under Article 44 of the Constitu-
tion. Mr. Lardner submitted that Mrs. Jamieson had
complied with one of the conditions in that she was a
Catholic on the date of her father's death. She had not
refused and had not failed to give an undertaking to
the parish priest that she would continue as a prac-
tising Catholic. By giving the undertaking as soon as it
was required of her she had substantially complied with
the testator's condition.
Mr. Barrington said that the conditions in the will
had no bearing on the case because they were both
void as being contrary to public policy in Ireland, under
Article 44 of the Constitution.
If the State was to respect and honour religion he
submitted it was offensive to that policy for a Court to
uphold anything in the nature of a bribe to practise a
religion that he or she did not believe in. If the State
upheld the value of freedom of conscience, it too would
be offensive for a Court to uphold a gift to a person so
that he or she would not follow her own conscience in
such an important matter as their religion.
They had this extraordinary factor in this case where
the testator was told by his solicitor that he should tell
his daughter that she must give this undertaking and he
did not tell her.
Left void for uncertainty
Giving judgment, Mr. Justice Kenny held that the
phrase "a practising Roman Catholic" was void for
uncertainty. "We have no idea what 'a practising
Roman Catholic' means, apart from the fact that it
involves the Court in the extremely distasteful task of
inquiring into people's religious beliefs".
He held the condition requiring Mrs. Jamieson to be
a Roman Catholic at the time of her father's death not
to be repugnant to the Constitution. Mrs. Jamieson said
she did not know about this condition before the tes-
tator died, but it was not a breach of her right of free-
dom of conscience as guaranteed by the Constitution,
which also guaranteed the free profession and practice
of religion.
On the other hand, said Mr. Justice Kenny, he had
no doubt whatever that the second condition in the will
requiring Mrs. Jamieson to give a firm undertaking to
the parish priest for the time being of New Ross, prior
to the testator's death that she would remain a prac-
tising Roman Catholic, was an attempted interference
with her constitutional right what religion, or lack of
religion, she was going to belong to.
59