The Gazette 1977

A testator devised, after his wife's death, his farm in Co. Laois to his nephew Denis Bennett for his own use and benefit absolutely. The testator never had any nephew called Denis, but he had nephews called James, William, Patrick, Peter and Martin, and he also had a brother called Denis. It is therefore contended that the provision for the nephew Denis is void for uncertainty and therefore that the property should fall into residue. The deceased died in June, 1969, and probate of his will was granted to the plaintiff brother, Denis, on 12th November, 1973. William alleges that he should be a l l owed to a ddu ce evidence to prove that the test- ator intended him to have the farm. Under S.90 of the Succession Act, 1965, such evidence will be admissible. All the other nephews, as well as deceased's brother, Denis, support William's claim. The evidence establishes that from 1951 William resided at testator's farm, and worked this farm on behalf of the testator, without receiving any remuneration. In 1955, William went to England, and returned to Ireland to his father's farm, which is about 7 miles from testator's farm, in 1960. From that time on, he has been living with his father, but, at his uncle's request, from time to time he would till the uncle's land and sell his stock for which he was unremunerated. The testator informed his brother, Peter, who was William's father, that the lands would go to one or more of Peter's sons. The lands were the Bennett family lands, and the whole family believed that the lands would go to William after the death of the Testator as having been impliedly selected by him. The will was drawn by the family solicitor, but no explanation can be furnished to show how the phrase "my nephew Denis Bennett" was inserted. It was contended on behalf of the plaintiff that, prior to the Succession Act, 1965, extrinsic evidence was f r equen t ly admi t t ed in the construction of ambiguous phrases. But S.90 of the Succession Act is wider than that, in that it places no limitation on the purpose for which extrinsic evidence may be admitted. It states: "Extrinsic evidence shall be admissible to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, the will." S.90 does direct the Courts in a proper instance to look outside the will altogether, in

of time during which McGowan had been interrogated was oppressive. The statement which McGowan made in the car on the way to Tulla- more was not induced by oppressive means. Accordingly there was ample evidence that justified the Special Criminal Court in finding all these statements voluntary and properly admissible. It is then contended that, as both accused had been arrested under S.30 of the Offences against the State Act, 1939, and made statements while detained for the 48 hours, permitted by that Section, the statements should not be admitted in evidence. Under S.30, a Garda may demand of the person detained his name and address, and refusal to provide same is a penalty. A Garda may also, under S.52 of that Act, demand a full account of accused's movements during a specified period under penalty. Counsel for the accused submitted that, as the accused was bound under penalty to supply the requested account of his movements, any statement made thereafter was not voluntary, and should not be admitted. At no time during the questioning of the accused was S.52 invoked, and the accused made no statement under a threat of penalty. On the contrary, the accused were continually cautioned that they were not obliged to make a statement. Statement made by 4th Edition of Cross on Evidence at p.248 approved "If information has been lawfully obtained pursuant to statutory provisions, and there is no express restriction on the use which can be made of the information, the person giving it cannot object to its being used in evidence against him, either on the ground that such use would infringe his privilege against self-incrimination, or because the evidence would not have been given voluntarily." The application for leave to appeal is accordingly dismissed. The People (DJ*J>.) v. Walsh and McGowan — Court of Criminal Appeal (Griffin J., Murnaghan J. and McMahon J.) per Griffin J. — unreported — 31st January, 1977. WILL - SUCCESSION ACT Extrinsic evidence under Succession Act, 1965, admitted to show that words in will "my nephew Denis" really referred to "my nephew William".

c o r r e c t. Though g i ven the opportunity to cross-examine the witnesses, counsel for the defence did not do so. It follows that the requirements of S.41 (4) of the 1939 Act, in relation to the practice and procedure to be adopted by the Special Criminal Court were sufficiently complied with in these circumstances. In any event, the statements made by the accused were precisely confirmed subsequently by Dr. Herrema himself in relating the kidnapping. In his third statement, McGowan admitted that he drove with Gardai to Kildangan, and showed them the house in which Dr. Herrema was held captive. It was as a direct result of this that Dr. Herrema was eventually located at Monasterevan. This ground fails. The second ground is that two statements made by McGowan on 20th October, 1975, were made after he had been subjected to prolonged and continuous interrogation, and consequently the statements were not voluntary. McGowan was in fact arrested at 9.00 a.m. on 18th October, and brought to Portlaoise Garda Station, and there questioned with breaks from noon on 18th October, to 1.00 a.m. on Sunday, 19th October. After some sleep, his questioning was resumed at 11.00 a.m. on Sunday, 19th October, and continued through most of Sunday to Monday morning, save for a short period. At 9.15 p.m on Sunday he made an exculpatory statement in regard to his movements. At 9.00 a.m. on Monday, 20th October, he was allowed to leave, but requested a lift to Tullamore from the Gardai. Two Detective-Inspectors, who had interrogated him, then drove him to Tu l l amo r e. A f t er Mountmellick, McGowan stated he would tell the truth, and that he had in fact kept watch on the movements of Dr. Herrema in Limerick for Gallagher. As a result of this confession, McGowan was taken into custody under S.30 of the Offences against the State Act, 1939, at 11.15 a.m. on Monday, 20th October. McGowan remained in a cell in Tullamore Garda Station until 5.30 p.m. when he made a full confession admitting his part in the kidnapping of Dr. Herrema. Counsel for the defence did not complain that the manner in which the Gardai had taken these s tat ements was oppressive, but merely that the length