The Gazette 1976

229 / 274

GAZETTE JUNE/J ULY 1976
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
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.
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.
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
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.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.