O'B. v S

• Jurisdiction: Ireland
• Judgment Date: 01 January 1985
• Date: 01 January 1985
• Docket Number: [1977 No. 3264P]
• Court: Supreme Court

O'B. v. S.

O'B

and

S

[1977 No. 3264P]

High Court

Supreme Court

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.

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 Uchtála [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 expressly in s. 110 for some succession rights of illegitimate children, without extending the meaning of that word to include such children.

2. That, accordingly, the meaning of that word in those sections did not include children who were not issue of a lawful marriage.

3. That the provisions of s. 1, sub-s. 2, of Article 43 of the Constitution did not confer upon the defendant a right to intestate succession in respect of the estate of her father.

4. That, as no right of intestate succession in respect of that estate was vested in the defendant either by the Act of 1965 or by the Constitution, she had failed to establish a personal right which required to be protected and vindicated pursuant to Article 40, s. 3, of the Constitution.

5. That the "family" recognised in Article 41 of the Constitution is the family which is based on a valid marriage in accordance with the law of the State.

6. That the main issue was whether the discrimination in favour of legitimate issue effected by s. 67 of the Act of 1965 was a contravention of the provisions of Article 40, s. 1, of the Constitution which state that "all citizens shall, as human persons, be held equal before the law" but which adds the proviso "this shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."

7. That the said discrimination could not be justified as being due to any of the differences of capacity or of social function mentioned in the said proviso.

8. That, nevertheless, the said discrimination, although not justified by the proviso to Article 40, s. 1, of the Constitution, was justified by ss. 1 and 3 of Article 41 of the Constitution since ss. 67 and 69 of the Act of 1965 form part of an Act which is designed to strengthen the protection of the family in accordance with the provisions of Article 41.

9. That, therefore, the said discrimination was not an invidious discrimination in the sense of being unjust, unreasonable or arbitrary and, accordingly, the provisions of ss. 67 and 69 of the Act of 1965 were not invalid having regard to the provisions of the Constitution.

Cases mentioned in this report:—

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

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

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

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

⁵ In re M. [1946] I.R. 334.

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

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

⁸ L. v. L. [1978] I.R. 288.

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

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

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

¹² O'Brien v. Keogh [1972] I.R. 144.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

²⁹ In re D. [1959] 1 Q.B. 229.

³⁰ Cahill v. Sutton [1980] I.R. 269.

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

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

³³ Rowe v. Law [1978] I.R. 55.

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

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

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

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

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

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

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

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

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

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—

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

• (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...