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GAZETTE
JULY-AUGUST
19
C.J. and Parke J. dissenting in
part):
(1) That the Minister was not bound
to defend and vindicate the
children's right to be provided
with free primary education
under the terms of Article 40.3.1.
of the Constitution. Per Kenny
J.: "The obligation imposed on
the State by both subsections of
Article 40.3 is as far as
practicable by its
laws
(emphasis
added) to defend and vindicate
the personal rights of the citizen.
It is not a general obligation to
defend and vindicate the personal
rights of the citizen. It is a duty to
do so by its laws for it is through
laws and by-laws that the State
expresses the will of the people
who are the ultimate authority."
(2) That Article 42.4 laid down that
the State was to provide
for
free
primary education. There was a
distinction between providing free
education and providing
for
it.
Per O'Higgins C.J.: "In my view,
the effect of this part of Article
42 in accordance with the words
used both in the Irish and in the
English text, is to oblige the State
to see that machinery exists
under which and in accordance
with which such education is in
fact provided."
(3) (With O'Higgins C.J. and Parke
J. dissenting):
That the whole of the evidence
must be looked at to ascertain
whether the Minister had failed to
carry out the constitutional
obligation imposed on the State
and that in the present case, the
totality of the evidence, oral and
written, and the inferences that
were to be drawn from it, failed
to' establish that there had been
such
a
breach
of
that
constitutional duty.
(4) That the action in so far as it
related to Ireland, the Minister
for Education and the Attorney
General would be dismissed, but
that against the other defendants
(i.e. the I.N.T.O. and its Central
Executive Committee) it would
be continued, in respect of the
claim
for
damages
for
conspiracy.
Eilish Crowley and Ors. v. Ireland,
the Minister for Education, the
Attorney General, the Irish National
Teachers' Organisation, Bernard
Gillespie and Ors.
— Supreme
Court, (per Kenny J. with Henchy
and Griffin JJ.; and with O'Higgins
C.J. and Parke J. dissenting in part)
— 1 October, 1979 — Unreported.
WILL — ANIMUS TESTANDI
Mental capacity — whether the
deceased, at the time of the execution
of an alleged will was of sound
disposing mind; knowledge and
approval — whether the deceased at
the time of the execution of the
alleged will knew and approved of the
contents; due execution — whether
the will was duly executed in
accordance with the Succession Act
1965.
The deceased died on 16 May
1975. He was an elderly bachelor and
was survived by two sisters, the
Plaintiff and the second-named
Defendant, by his brother, the first-
named Defendant, and by nephews
and nieces.
The deceased made an alleged last
will on 5 May 1975 whereby he
bequeathed all his property to the
plaintiff and appointed M.B. and J.S.
executors. He made an earlier will on
10 December 1974 whereby having
bequeathed £3,000.00 each to his
nieces M. O'C., a daughter of the
first-named
Defendant, B.V., a
daughter of the
second-named
Defendant, and M. O'C., a daughter
of the Plaintiff, he bequeathed all his
property to the Plaintiff. By that will
he also appointed M.B. and J.S.
executors. The executors renounced.
The Plaintiff claimed to have the
will dated 5 May, 1975 established in
solemn form. Each of the Defendants
entered caveats. Their defence raised
the issues of due
execution,
testamentary
capacity,
and
knowledge and approval. In addition
both
Defendants
pleaded
that
execution of the will was secured by
the undue influence of the plaintiff
(but this undue influence plea was
withdrawn prior to the hearing).
The questions for determination by
the Court were as follows:
(1) whether the alleged last will of the
deceased dated 5 May 1975 was
executed
pursuant
to
the
Succession Act 1965,
(2) whether the deceased at the time
of execution of the alleged will
dated 5 May 1975 was of sound
disposing mind, and
(3) whether the deceased at the time
of execution of the alleged will
dated 5 May, 1975 knew and
approved of the contents.
Similar
questions
were
left
regarding the alleged will of 10
December, 1974.
The deceased was a quiet reserved
country man and other than his work
his only interest was horses. When
his brother and two sisters (i.e. the
Plaintiff and the two Defendants) left
the licensed premises at Ballyhooly,
Co. Cork, which was the family
home, the sisters on marriage and the
brother to go to work in Youghal, the
deceased continued to reside there
with his parents. He was not, at any
time, interested in the working or
management of the licensed premises.
He spent his time working a farm of
about 60 acres, originally belonging
to his father and subsequently to
himself, in the neighbourhood. In
1968 his father transferred the
licensed premises to the deceased
subject to a right of support and
maintenance for their lives for the
deceased's father and mother. After
the deceased's father died in 1969, the
deceased's brother, the first-named
Defendant, his wife and children,
came to reside in the licensed
premises with the deceased and his
mother. In 1970 the deceased
transferred the licensed premises to
the first-named Defendant subject to
the right of residence of his mother
and a right of residence for himself
for life.
In Autumn 1973 the deceased
became ill and sufTered blackouts,
and was admitted to hospital in Cork
from October 1973 to the beginning
of January 1974. He was suffering
from viral meningitis and incelfilitus.
There was inflamation of the
membrane of his brain. He had a
tumour on the brain and had suffered
epilepic seizures. Whilst in hospital
he was in a coma for a number of
weeks. On his discharge from
hospital he reutrned to live in the
licensed premises at Ballyhooly.
From the time he went to hospital the
deceased was unable to take any part
in the running of his land which was
then looked after by the first-named
Defendant who in return got £10.00
per week and also some perquisites.
In March 1974 the deceased left
the licensed premises at Ballyholly
and went to reside with the Plaintiff
at Doncrailc. In May 1974 the
deceased again became ill. He was