O'B. v S

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1985
Docket Number[1977 No. 3264P]
Date01 January 1985

High Court

Supreme Court

[1977 No. 3264P]
O'B. v. S.
O'B
and
S

Cases mentioned in this report:—

1 In re White's EstateUNK [1945] 1 W.W.R. 78.

2 In re Walker, Walker v. LutyensELR [1897] 2 Ch. 238.

3 Dickinson v. North-Eastern Railway Co. (1863) 33 L.J. Ex. 91.

4 Woolwich Union v. Fulham UnionELR [1906] 2 K.B. 240.

5 In re M.IR [1946] I.R. 334.

6 G. v. An Bord UchtálaIR [1980] I.R. 32.

7 The State (Nicolaou) v. An Bord UchtálaIR [1966] I.R. 567.

8 L. v. L.IR [1978] I.R. 288.

9 McGee v. The Attorney GeneralIR [1974] I.R. 284.

10 Murtagh Properties v. ClearyIR [1972] I.R. 330.

11 Quinn's Supermarket Ltd. v. The Attorney GeneralIR [1972] I.R. 1.

12 O'Brien v. KeoghIR [1972] I.R. 144.

13 The State (Hartley) v. Governor of Mountjoy Prison (Supreme Court: 21st December, 1967).

14 Trimble v. GordonUNK (1977) 430 U.S. 259.

15 Labine v. VincentUNK (1971) 401 U.S. 532.

16 Marckx v. Belgium [1979] E.C.H.R. 330.

17 In re Ó Laighléis ó laighléisIR [1960] I.R. 93.

18 In re N.S.M.DLTR (1971) 107 I.L.T.R. 1.

19 The Attorney General v. Southern Industrial Trust Ltd.DLTR (1957) 94 I.L.T.R. 161.

20 Buckley and Others (Sinn Féin) v. The Attorney GeneralIR [1950] I.R. 67.

21 The State (Healy) v. DonoghueIR [1976] I.R. 325.

22 Blake v. The Attorney GeneralIR [1982] I.R. 117.

23 Levy v. LouisianaUNK (1968) 391 U.S. 68.

24 Glona v. American Guarantee Co.UNK (1968) 391 U.S. 73.

25 Gomez v. PerezUNK (1973) 409 U.S. 535.

26 Jimenez v. WeinbergerUNK (1974) 417 U.S. 628.

27 Lalli v. LalliUNK (1978) 439 U.S. 259.

28 East Donegal Co-Operative v. The Attorney GeneralIR [1970] I.R. 317.

29 In re D.ELR [1959] 1 Q.B. 229.

30 Cahill v. SuttonIR [1980] I.R. 269.

31 Ryan v. The Attorney GeneralIR [1965] I.R. 294.

32 Pigs Marketing Board v. Donnelly (Dublin) Ltd.IR [1939] I.R. 413.

33 Rowe v. LawIR [1978] I.R. 55.

34 McDonald v. Bord na gConIR [1965] I.R. 217.

35 O'Brien v. Manufacturing Engineering Co. Ltd.IR [1973] I.R. 334.

36 De Burca v. The Attorney GeneralIR [1976] I.R. 38.

37 Loftus v. The Attorney GeneralIR [1979] I.R. 221.

38 Murphy v. The Attorney GeneralIR [1982] I.R. 241.

39 King v. The Attorney GeneralIR [1981] I.R. 233.

40 Dreher v. Irish Land CommissionDLRM [1984] I.L.R.M. 94.

41 Weber v. Aetna Casualty & Surety Co.UNK (1972) 406 U.S. 164.

42 Mills v. HabluetzelUNK (1982) 456 U.S. 91.

Constitution - Personal rights - Property - Succession - Intestacy - Claim of illegitimate child - Whether "issue" of intestate - Statute - Interpretation - Succession Act, 1965 (No. 27), ss. 67, 69 - Constitution of Ireland, 1937, Articles 29, 40, 41, 43.

Plenary Summons.

The defendant was the natural daughter of the deceased, who died on the 5th May, 1975, a bachelor and intestate, leaving him surviving the plaintiff (his sister), a second sister, a brother, the defendant's mother, and the defendant. The plaintiff applied for a grant of letters of administration of the estate of the deceased and, thereupon, the defendant lodged a caveat in the Probate Office. If, as she claimed, the defendant was the issue of the deceased within the meaning of s. 67, sub-s. 3, of the Succession Act, 1965, she would have had a prior right to such grant. If the deceased left no issue, the defendant had no right to apply for such grant.

Section 67 of the Succession Act, 1965, provides:—

"(1) If an intestate dies leaving a spouse and no issue, the spouse shall take the whole estate.

(2) If an intestate dies leaving a spouse and issue—

  1. (a) the spouse shall take two-thirds of the estate, and

  2. (b) the remainder shall be distributed among the issue in accordance with subsection (4).

(3) If an intestate dies leaving issue and no spouse, his estate shall be distributed among the issue in accordance with subsection (4).

(4) If all the issue are in equal degree of relationship to the deceased the distribution shall be in equal shares among them; if they are not, it shall be per stirpes."

Section 69 of the same Act provides:—

"(1) If an intestate dies leaving neither spouse nor issue nor parent, his estate shall be distributed between his brothers and sisters in equal shares, and, if any brother or sister does not survive the intestate, the surviving children of the deceased brother or sister shall, where any other brother or sister of the deceased survives him, take in equal shares the share that their parent would have taken if he or she had survived the intestate.

(2) If an intestate dies leaving neither spouse nor issue nor parent nor brother nor sister, his estate shall be distributed in equal shares among the children of his brothers and sisters."

On the 5th July, 1977, the plaintiff issued a plenary summons in the High Court and claimed an order setting aside the caveat lodged by the defendant, and an order giving the plaintiff liberty to proceed with her application for a grant of letters of administration of the estate of the deceased. The defendant claimed, in the alternative, a declaration that the provisions of ss. 67 and 69 of the Succession Act, 1965, were invalid having regard to the provisions of the Constitution of Ireland, 1937. A notice was served on the Attorney General pursuant to order 60 of the Rules of the Superior Courts, 1962. The provisions of the Constitution invoked on behalf of the defendant, in support of her alternative claim, appear in the judgment of D'Arcy J., infra.

Article 29, s. 6, of the Constitution states:— "No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas." The Convention for the Protection of Human Rights and Fundamental Freedoms was held in In re Ó Laighléis ó laighléis17 [1960] I.R. 93. not to form part of the domestic law of the State.

The plaintiff's action was tried by D'Arcy J. on the 12th—14th January, 1982.

The defendant appealed against the judgment and order of the High Court. The appeal was heard by the Supreme Court (O'Higgins C.J., Walsh, Hederman, McCarthy and Murphy JJ.) on the 15th-18th February, 1983.

Section 1, sub-s. 1, of Article 41 of the Constitution declares that the State recognises the family as the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. Sub-section 2 of that section declares that the State guarantees to protect the family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the nation and the State. Section 3, sub-s. 1, of that Article declares that the State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack.

The defendant was the natural child of her father and her mother, who were not married to each other. The defendant's father died on the 5th May, 1975, a bachelor and intestate, leaving him surviving the plaintiff (his sister), a second sister, his brother, the defendant's mother, and his natural daughter, the defendant. Section 67, sub-s. 3, of the Act of 1965, provides that if an intestate dies "leaving issue" and no spouse, his estate shall be distributed "among the issue" as specified therein. The Act of 1965 does not contain a definition of the word "issue." Section 69, sub-s. 1, of the Act of 1965 provides that if an intestate dies, without leaving a spouse, issue or a parent, his estate shall be distributed between his brothers and sisters in the manner therein specified.

The plaintiff's application for a grant of letters of administration of the estate of the deceased was opposed by the defendant, who claimed to be the issue of the deceased and who lodged a caveat. The plaintiff instituted an action in the High Court in which she claimed an order setting aside the caveat and giving her liberty to proceed with her application. The defendant claimed, in the alternative, a declaration that ss. 67 and 69 of the Act of 1965 were invalid having regard to the provisions of the Constitution.

Held by D'Arcy J., in giving judgment for the plaintiff, 1, that the legislature, before and after the enactment of the Constitution in 1937, had enacted legislation which conferred expressly some property rights on illegitimate children and that, in view of the apparently deliberate refusal of the legislature to state in the Act of 1965 that the word "issue", when used therein, included illegitimate children, there were no grounds to justify the Court in interpreting that word so as to include such children.

2. That no right to succeed to the estate of her father was conferred on the defendant by virtue of the acknowledgment in Article 43, s. 1, of the Constitution that man has the natural right to the private ownership of goods, or by the guarantee therein by the State not to abolish the right of private ownership or the general right to inherit property, or by the guarantee by the State in Article 40, s. 3, to protect and vindicate the personal and property rights of the citizen.

3. That the "family" mentioned in Article 41 of the Constitution is the family founded on a valid marriage in accordance with the law of the State.

The State (Nicolaou) v. An Bord UchtálaIR [1966] I.R. 567 applied.

4. That, in view of the provisions of Article 41 of the Constitution, the terms of ss. 67 and 69 of the Act of 1965 were not in breach of the qualified declaration in Article 40, s. 1, that all citizens shall, as human persons, be held equal before the law; and that, accordingly, the provisions of ss. 67 and 69 of the Act of 1965 were not invalid having regard to the provisions of the Constitution.

On appeal by the defendant it was

Held by the Supreme Court, in disallowing the appeal, 1, that the meaning of the word "issue"in ss. 67 and 69 of the Act of 1965 was governed by the context in which it appeared, being an Act providing for succession to property on intestacy and providing...

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