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GAZETTE
January-February 1976
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
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
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 is not liable
for rates
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.