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GAZETTE
JANUARY/FEBRUARY 1978
Northern Ireland was to consist of
the parliamentary Counties of
Ant r im,
Armagh,
Down,
Fermanagh, Londonderry, and
Tyrone, and the Parliamentary
Bo r o u g hs of Be l f a st and
Londonderry. The State has therefore
recognised the existence of Northern
Ireland and has, for the purposes of
our legislation, fixed its boundaries.
" T h e
Su p r eme
C o u r t ,
unanimously, per O'Byrne J., in the
case of
the People v. Ruttledge and
Davidson
, May, 1947, had correctly
applied S.3 of the Adaptation of
Enactments Act, 1922, and stated
that the expression 'United Kingdom*
therein should be split up into' its
component parts — 'Great Britain'
and 'Ireland'. In that case, the
expression 'Ireland' was applied to
the Irish Free State, but since the
e n a c t me nt of t he p r e s e nt
Constitution, it is obviously
applicable to the area at present
described as 'The Republic of
Ireland'. This leads to the remarkable
conclusion that, due to the Theft Act,
1968, it is not a crime under our law
to receive or have possession in this
State of goods stolen in Britain".
The appeal was dismissed
unanimously by the Court.
The
State
(Joachim
Gflsenan) v.
District Justice
MeMorrow - Full
Supreme Court (per Henchy J. with
O'Higgins, CJ . and Griffin and Parke
JJ. concurring and Kenny J.
concurring in a separate assenting
Judgment). — unreported — 27
January, 1978.
SUCCISSION ACT
Su c c e s s i on Act 1965 —
Construction ofSection 117— Issues
to be determined in all applications
under S. 117 — Conclusion, nature
and extent of moral duty of deeeased
not affected by validity of second
marriage.
Plaintiffs were the only children of
deceased's first marriage. Deceased
obtained divorce from first wife in
England in 1951 and remarried
Defendant in same year. There were
two children by marriage of deceased
and Defendant. By Will made 23
August 1960 deceased bequeathed
all his property to Defendant if she
survived him by six months. She did
and became so entitled.
Plaintiffs brought claim under
Section 117 of the Succession Act
1965 that deceased failed in his
moral duty to make proper provision
for them and sought an Order that
provision be made for them out of
deceased's Estate as the Court
thought just.
Counsel for the Plaintiffs
submitted in opening that he
proposed to call evidence, the legal
effect of which was that the English
Court had no jurisdiction to grant a
divorce to deceased and his first wife,
the mother of the Plaintiffs, and that
such decree was in the eyes of Irish
Law a nullity and recognition could
not be given to it. He made further
submissions on the construction of
Section 117. Counsel for the
Defendant submitted that it was
undesirable to hear evidence in
relation to the validity of the divorce
decree unless it was absolutely
necessary to do so and submitted that
if Section 117 were interpreted
c o n t r a ry to the P l a i n t i f fs
submissions, such evidence and die
validity of the second marriage might
not be relevant. Costello, J. agreed
with this latter submission and
decided to consider as a prior issue
the construction of Section 117 and
whether the validity of the second
marriage was relevant to a
determination of the present
application and having done so
held:
1. In all proceedings under Section
117 there are two issues to be
determined by the Court.
(a) Whether there has been any
failure of testator in the moral
duty, referred to in the Section,
which he owed to the
applicants; and
(b) The provision which the Court
should make out of the *
testator's estate for the
applicants (this question only
arises for determination if the
answer to the first question is
in the affirmative).
2. In relation to the first question
above upon the facts of the
present application:
(a) Section 117 (2) requires that
the Court bear in mind all the
moral duties which the testator
had at date of death and not
only obligations which could
be enforced under the Act. A
Testator has a moral duty to
illegitimate children. In
adjudicating upon a claim by
legitimate children under
Section 117, the Court must
take into account the moral
duty deceased may have owed
to any illegitimate children,
(b) Deceased, by living with
Defendant as her husband,
undertook moral obligations to
her; there was evidence to
show that these continued until
' date of death. That such moral
duty, resulting from the fact of
the marriage and relationship
be tween decea s ed and
Defendant, could not be
affected by any decision of the
Court not to recognise such
marriage.
3. In relation to the second question
above upon the facts of the
present application:
(a) As the children of the second
ma r r i a ge
we re
not
beneficiaries nor had made
any application under Section
117, any Order made by the
Court in relation to deceased's
estate would not affect such
children and the status of such
children was thus irrelevant.
(b) As the first wife had
renounced her legal right and
the second wife elected for
bequest and was not the
mother of Plaintiffs, it was
unnecessary to consider for
the purposes of Section 117
(3) who is the "Spouse" as the
Court can make unlimited
provision for the Plaintiffs out
of the estate of deceased,
whichever be the spouse.
From these findings it was concluded
that the nature and extent of the
moral duties of the deceased at the
date of his death, including those he
may have owed to his second wife
could not be affected by the Court's
decision that it should not recognise
the validity of the second marriage.
Thus the validity of the English
divorce was not relevant to any of the
issues that arose in these proceedings.
MX.
and A.W.
v. MX. — High
Court — Costello, J. — unreported
— 22 November, 1977.