The Gazette 1981

GAZETTE

DECE

BER

1981

and

1891,

creating

and

providing

for

the offence

commonly known as "loitering

with intent" were inconsistent

with Articles 38.1, 40.1.4 and

40.3 of the Constitution and, by

virtue of Article 50.1 of the

Constitution, ceased to have any

force or effect in this State upon

the coming into operation of the

Constitution.

2. That the conviction of the Plain-

tiff in the District Court on 13

November 1975 of having in his

possession specified housebreak-

ing implements with intent to

commit some felonious act, to

wit, to steal, contrary to Section

4 of the Vagrancy Act, 1824,

was invalid as there was no refer-

ence to the extension and amend-

ment of Section 4 of the 1824

Act by the Acts of 1871 and

1891; and that accordingly, the

recorded conviction failed to

show jurisdiction on its face and

therefore lacked validity.

3. That in lieu of the orders of

certi-

orari

granted in the order of the

High Court, the two convictions

of the Plaintiff in the District

Court on 13 November 1975 (as

affirmed, but varied as to sen-

tence, in the Circuit Court on 9

December 1975) and the further

conviction of the Plaintiff in the

District Court on 2 July 1976,

should be declared invalid.

In a part dissenting judgment

O'Higgins C.J. expressed the view

that the specified parts of Section 4 of

the Vagrancy Act, 1824, as applied

to Ireland and amended by the Acts

of 1871 and 1891 creating and

providing for the offence commonly

known as "loitering with intent"

should survive and remain in force

with only the words "suspected" and

"reputed thief' excluded as being

inconsistent with the Constitution.

He was also of the view that the

conviction of the Plaintiff in the

District Court on 2 July 1976 be

quashed because at the hearing of the

charge prior to conviction evidence

was received of a previous convic-

tion of the Plaintiff.

Neville Francis King v. Director of

Public Prosecutions and the Attorney

General

— Supreme Court (per

Henchy J. with Griffin, Kenny and

Parke J.J. concurring, O'Higgins

C.J., dissenting in part) - 31 July

1980 - unreported.

SUCCESSION

Succession Act 1965 — Section 117

— provision for child — settlement

of property inter vivos' discharged

testarlx's moral duty to make proper

provision for her son.

This was an application by the Plain-

tiff under Section 117 of the Succes-

sion Act 1965, that his mother had

failed in her moral duty to make

proper provision for him by her will

or otherwise. The Plaintiff was aged

58.

It was given in evidence and was

not contested that the Plaintiff, the

seventh of eleven children of the

testatrix, was highly strung, with very

little capacity for business, had a

poor relationship with most of his

brothers and sisters, did not wish to

get

himself

involved

in the

management of property, had no

knowledge of property and had

personal problems, including a drink

problem.

The testatrix had, during her life,

sought to make provision for her

children by buying properties for

them or by vesting in them properties

which had been acquired for the

purpose of the (former) family

business. As a result, the testatrix

had disposed of most of her assets

during her lifetime and, on her death,

the net value of her estate, for

probate purposes, was merely

£2093.40.

The testatrix's provision for her

son, the Plaintiff, had been to set

aside in 1968 her leasehold interest in

an investment property in Grosvenor

Road, Dublin, The terms of the

arrangement, apparently agreed be

tween the parties (although, in

evidence, the Plaintiff alleged such

terms were forced upon him), were

that the testatrix assigned by deed the

property to the Plaintiff's brother,

C.E., with whom it appeared the

Plaintiff had a genuine bond of affec-

tion. C.E. was, in essence, to hold

and manage the property in trust for

the Plaintiff and to pay the Plaintiff

thereout a net weekly sum of £15.00.

This C.E. had done over the years

and had, in fact, increased the

income to the weekly sum of £20.00.

The testatrix died on 17 July 1976

and the Plaintiff entered a caveat to

her Will made 30 May 1975 where-

under she appointed the three

Defendants, A.J., a daughter, I.E., a

son and R.D., a Solicitor, and left the

residue of her property equally

between A.J. and I

.E.

It was thus

necessary for the testatrix's executors

to prove the Will in solemn form.

The Plaintiff alleged that he had

executed the deed giving rise to the

trust arrangement between himself

and his brother C.E. under pressure

and that the testatrix had failed in her

moral duty to make proper provision

for him by her will or otherwise.

Held

(per Barrington J.) that:

1. The Plaintiff was not placed

under any form of improper

pressure in executing the said

deed and that the Testatrix's

primary concern had been to do

the right thing for her son, the

Plaintiff, and that the trans-

action had been entered into only

because the Plaintiff did not wish

or did not feel able to undertake

the management of the property

himself;

The testatrix had not failed in her

moral duty towards the Plaintiff

by neglecting to make further

provision for him in her will.

Obiter

(per Barrington J.) that in view

of the probable value of the Gros-

venor Road property in question it

ought to be possible, by the revised

management or by sale of it and

investment of the proceeds, to sub-

stantially increase the Plaintiff's in-

come.

R.E. v. AJ . , I.E., and R.D.

- High

Court (per Barrington, J.) — 11

January 1980 — unreported.

PERIOD OF LIMITATION

Section 126 of the Succession Act

1965, which amended and re-enacted

Section 45 of the Statute of

Limitations 1957, did not come into

force until the date of commence-

ment of the former Act, that is, 1

January 1967 — Section 45 of the

Statute

Limitations

1957

(limitation period 6 years) only

relates to a claim by an unpaid bene-

ficiary, and has no application to a

claim by a personal representative to

recover the assets of the deceased

from a person holding adversely to

the estate. The Statutory provision

appropriate to a claim by a personal

representative is Section 13 (2) of the

Statute

Limitations

1957

(limitation period 12 years).

J.D., the registered owner of lands

in Co. Waterford died intestate

on 1 February 1966 leaving a widow