Bank of Ireland Trustee Company Ltd v Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 30 July 1957
• Date: 30 July 1957

Bank of Ireland Trustee Co., Ltd. and Others v. Attorney General.

In re KATE MARY SHERIDAN, Deceased; BANKof IRELAND TRUSTEE COMPANY, LIMITED, RICHARD ALFRED O'BRIEN and EDWARD JOSEPH O'BRIEN

Plaintiffs

and

THE ATTORNEY GENERAL

Defendant.

Charity - Bequest to Prioress of convent of contemplative order of nuns for"repair and/or improvement" of convent - Purpose merely charitable - Legacy duty - Exemption - Stamp Duties Assimilation Act, 1842 (5 & 6Vict., c. 82), s. 38.

A testatrix by her will made, inter alia, the following pecuniary bequest:—"£2,000 to Sister Therese of the Carmelite Convent, Blackrock, County Dublin, or should she predecease me then to the Prioress for the time being of the Convent to be applied in either case to the repair and/or improvement of the Convent." Sister Therese survived the testatrix. The Discalced Carmelite nuns, who are the community of the Carmelite Convent, Blackrock, are a contemplative order who do not devote themselves to exterior works of mercy, but exclusively to penance and to the contemplation of God. They are obliged by their Rule to engage frequently in intercessory prayer to God for the outside world. Every convent of the order is obliged to maintain, and does maintain, a chapel in which the public can assist daily at the Mass heard by the nuns and at other acts of divine worship performed by the nuns.

Held that such bequest was for a purpose merely charitable and was therefore exempt from legacy duty.

Maguire v. Attorney-General [1943] I. R. 238 followed, McNamee v.Mansfield[1945] I. R. 13 distinguished; Attorney-General v. Hall [1897] 2 I. R. 426 and O'Hanlon v. Logue [1906] 1 I. R. 247 approved; Cocks v.MannersL. R. 12 Eq. 574 not followed.

Construction Summons.

Kate Mary Sheridan, late of Main Street, Castlebar, Co. Mayo, died testate and a widow on the 20th November, 1951. By her will, dated the 18th November, 1950, the testatrix appointed the Governor and Company of the Bank of Ireland and the three plaintiffs her executors and trustees. The will, so far as material, was as follows:—"I make the following charitable bequests, viz.,:—

£2,000 to Sister Therese of the Carmelite Convent, Blackrock, County Dublin, or should she predecease me then to the Prioress for the time being of the said Convent to be applied in either case for the repair and/or improvement of the Convent." Sister Therese survived the testatrix.

The plaintiffs brought a construction summons to have the question determined by the Court whether the said bequest was a valid charitable bequest in law. The Revenue Commissioners were joined as notice parties.

In an affidavit made by the Very Reverend Joseph McElhinney, O.D.C., the Provincial of the Irish Province of the Discalced Carmelite Friars, the following facts were stated:—

The Order of Discalced Carmelite Nuns and Friars was founded by St. Teresa of Avila in the 16th century and the first convent of nuns was founded by her in 1562 The Discalced Carmelite nuns throughout the world follow the primitive rule which was drawn up by St. Albert, Patriarch of Jerusalem, and confirmed in 1247 by Pope Innocent IV and by the Constitutions of 1591 as modified by Pope Pius XI in 1926. [The deponent exhibited a printed copy of the Rule and Constitutions of the Discalced Carmelite nuns which, he deposed, contained the authentic text of the said Rule and Constitutions now in force].

There are in Ireland a number of convents of Discalced Carmelite nuns, one of which, situate at Blackrock, County Dublin, was that mentioned in the will of the testatrix. Each of these convents is independent of and unattached to any other. Each convent is subject according to the Constitutions of the Order and in canon law either to the rule of the Father-General of the Discalced Carmelite friars or, in certain cases, as a result of special regulations of the Holy See, to that of the local Ordinary or Bishop. The convent at Blackrock is subject to the rule of the local ordinary.

Carmelite nuns are obliged by their own Rule to conduct full choral service each day with a public Mass in a building accessible to the public of the surrounding district who may desire to avail of it. Choral service comprises the recitation of the canonical "Hours" of the Church's liturgy. Portion of these "Hours" (such as matins or vespers) constitute public worship in the generally accepted meaning of the word and all the canonical Hours constitute public worship in the strict Roman Catholic sense of the word. Choral recitation of the Hours means recitation in common choir which is part of a properly built cathedral, monastic church or church attached to a convent such as the Carmelite nuns have. Choral service gravitates round, and supposes as its climax, the celebration of Mass. This Mass, as distinct from a private Mass, is called Chapter Mass or Conventual Mass. The convents of the Carmelite nuns are strictly cloistered; even a priest about to celebrate Mass has not access to the enclosed portion of the convent, but must celebrate in a separate part accessible to him, to his assistants and to attending non-members of the convent. The members of the convent chorally recite the Hours in a choir which communicates with the church by means of a grating: non-members of the convent have no access to this choir but may and can assist in that part of the church reserved for them. Every convent of Carmelite nuns in Ireland has a church attached to it at which Conventual Mass is celebrated daily and can be, and is, assisted at by the public.

The purpose of the life of the Carmelite nuns was summarised by the deponent by the following statement taken from the Prologue to the Constitutions of the Discalced friars of the Order:—"Two vocations in their due order have been divinely ordained. The more important aim of our life shall be the love and contemplation of divine things and the secondary aim the apostolate, particularly all that pertains to our neighbour's salvation." The deponent stated that the way of life to be followed by the nuns in carrying out their purposes was set out in detail in the Constitutions and the Rule. It would be seen from the Rule and the Constitutions that the nuns were engaged solely in a life of contemplation and prayer, living in strict enclosure in the convent, having contact with outside persons only when strictly necessary as prescribed by the Constitutions and engaging in no outside activities of any kind. Intercessory prayer for the salvation of souls and the general welfare of others was one of the duties of the nuns as was shown (inter alia) by para. 104 of the Constitutions of the nuns, which was as follows:—-

"Every Friday through the year they (the nuns) are to take the discipline in community for the propagation of the Catholic Faith, and the exaltation of our Holy Mother the Church, for peace and concord between Christian princes; as also for their benefactors and for the souls in purgatory; for those in affliction and in captivity, and for all who are in mortal sin, reciting the Psalm Miserere and the other prayers for the persons and above-mentioned intentions and for the Holy Church of God." The deponent referred to an appendix of documents in Gilmour v. Coats(1)furnished by solicitors for the appellants in that case to solicitors for the plaintiffs in this matter, which he exhibited. The deponent stated that he had read the copy contained in such appendix of the affidavit made by His Eminence Cardinal Griffin in Gilmour v. Coats(1) and that he agreed with the statements and views contained in such affidavit.

The affidavit made by Cardinal Griffin in Gilmour v.Coats(1) relating to the English Province of the Order of Discalced Carmelite nuns (which is governed by the same Rule and Constitutions as the Irish Province) runs as follows:—

"1. The Discalced nuns of the Order of Our Blessed Lady of Mount Carmel belong to one of the orders of the Roman Catholic Church which are called contemplative

orders. They are so called because their members are strictly enclosed in their convents and engage in no exterior works but devote their lives to contemplation and penance. contemplation including not only assisting at Mass and reciting the Divine Office and other vocal prayers but also reflection of the mind on God and the things of God which evokes from the will or heart acts of adoration, propitiation, love and intercession towards God and which in the case of contemplatives as a general rule passes sooner or later and to a less or greater degree into mystical prayer.

2. The contemplative orders are so called to distinguish them from what are called the active orders . . . the members of which engage in exterior work such as teaching, nursing the sick, tending the poor. . . Though, however, their way of life includes the carrying on of exterior works the Rules or Constitutions of the active orders provide that their members must devote themselves to the contemplative life and its penances so far as their exterior works permit and that the contemplative life is the primary and more important activity of their lives and must never be sacrificed or unduly prejudiced by their devotion to their exterior works, and it is the teaching of the Church that the fruitfulness of their exterior works for their neighbour—at any rate so far as his eternal interests are concerned—depends on the degree to which they devote themselves to the contemplative life and to its penances. Indeed, it is also the Church's teaching that prayer of some kind and at some times and penance are as a general rule conditions of the salvation of every human being and that in pursuing his own sanctification a person is not merely seeking his own selfish ends but is primarily fulfilling his duty to God.

3. The purpose of a Catholic woman in joining a contemplative order—as indeed any other religious order—is to promote in herself more fully and perfectly the love of God, expressed...