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

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

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

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]

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)

39 of 1973.

Continued from page

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.