O'Brien v S

• Jurisdiction: Ireland
• Judge: Walsh J.
• Judgment Date: 20 January 1984
• Neutral Citation: 1984 WJSC-SC 656
• Court: Supreme Court
• Docket Number: (83-1982)
• Date: 20 January 1984

O'BRIEN v S.

IN THE GOODS OF WILLIAM WALKER DECEASED

Between

FLORENCE O'BRIEN

Plaintiff

Respondent

and

M S

Defendant

Appellant

and

THE ATTORNEY GENERAL, A NOTICE PARTY PURSUANT TO ORDER 60 OF THE RULES OF THE SUPERIOR COURTS

1984 WJSC-SC 656

(83-1982)

THE SUPREME COURT

Synopsis:

ADMINISTRATION

Intestacy

Illegitimate child - Whether "issue" of deceased - Whether entitled to share in distribution of deceased's estate-"Issue" confined to children of lawful marriage -Decision of D'Arcy J. (5/3/82) affirmed- Statutory exclusion of illegitimate child not contrary to Constitution-Succession Act, 1965, s. 67 -(83/82-Supreme Court- 20/1/84).

O'Brien v. S.

1 JUDGMENT OF THE COURT Delivered the 20th day of January 1984 by Walsh J.

Walsh J.

2 William Walker died a bachelor and intestate on 5th March 1975. He was survived by four sisters and one brother and one illegitimate daughter. The plaintiff is one of the sisters and the defendant is the illegitimate daughter. On 5th September 1975 the plaintiff applied to the Principal Probate Office for letters of administration to the estate of the deceased and on 7th October a caveat to the plaintiff's application was entered by the defendant. Proceedings were issued by way of plenary summons and a statement of claim by the plaintiff seeking an order setting aside the caveat and the warning and appearance which had been entered thereto and for an order granting liberty to the plaintiff to proceed with the application for a grant of administration to the estate of the deceased. The defendant in her defence claimed an order and declaration that she was "the issue of the said deceased and she claims a share of the estate of the said deceased in such share and proportion" as to the Court might "seem meet and just". On the facts of the case if she were to be treated as issue for the purpose of that section she should as the only issue take the whole estate, there being no surviving spouse of the deceased. The pleadings in this case contain no express reference to the Succession Act 1965and no express reference to the Constitution or any particular provision of the Constitution. Nevertheless the substantive claim in the case is that the plaintiff is entitled to succeed under section 67 of the Succession Act 1965or, alternatively, and in the present case principally, by reason of being illegitimate and therefore being not entitled to succeed under section 67 of the Succession Act, a claim that sections 67 and 69 of the Succession Act 1965are invalid having regard to the provisions of the Constitution. Because these issues concern the validity of the Succession Act 1965notice was served on the Attorney General on 6th November 1981 pursuant to the provisions of Order 60 of the Rules of the Superior Courts. The proceedings therefore in the main became an issue between the defendant and the Attorney General on the validity of those provisions of the Succession Act 1965.

3 The appeal before this Court is taken by the defendant against the decision of Mr Justice D'Arcy who tried the case and held that the defendant was not entitled to succeed on intestacy not being issue within the meaning of section 67 of the Succession Act 1965and found also that sections 67 and 69 of that Act were not invalid having regard to the provisions of the Constitution for any of the reasons put forward by the defendant. In the view of this Court the conclusions reached by Mr Justice D'Arcy on both issues are correct.

4 The constitutional questions in the case do not arise for consideration until one has first examined the issue arising under the Succession Act. If it were to be held that the defendant was entitled to succeed under section 67 of the Succession Act 1965then none of the constitutional issues raised in this case would fall to be decided. It therefore becomes necessary to examine the provisions of the Succession Act 1965.

5 The Succession Act 1965(hereinafter referred to as "the Act") abolished all the pre-existing rules of intestate succession both as to descent of realty to the heir at law and as to distribution of personalty to the surviving spouse, issue and next-of-kin and replaced them by new rules applicable to all property. Section 13 provides that where a person dies intestate (or dies testate but leaving no executors) his estate shall until administration is granted vest in the President of the High Court who for this purpose shall be a corporation sole. Therefore the estate the subject of the present suit which amounts to a modest £1,800 is vested in the President of the High Court.

6 Part VI of the Act in sections 66 to 75 introduced new rules for distribution on intestacy which are applicable to all property both real and personal. Section 67 subsection (3) provides that if an intestate dies leaving issue and no spouse "his estate shall be distributed among the issue in accordance with subsection (4)". The Act does not define the term "issue". As the Act was passed subsequent to the enactment of the Constitution it is presumed to be constitutional until the contrary is clearly established. As was pointed out by this Court in McDonald v Bord na gCon [1965] I.R. 217 one practical effect of this presumption is that "if in respect of any provision or provisions of [an Act] two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant". However, to apply that rule of construction one must first set about seeing whether there is more than one construction reasonably open on the words of the statute. It is true that the word "issue" in general speech might well refer to children born within marriage or children born out of marriage. However, words have to be looked at in the context in which they appear and in this particular case they appear in a statutory context which relates to the succession to property. While there are cases dealing with testate succession in which the word "issue" has been construed as being referable only to issue born within marriage the Court was not referred to any case in which the word has been construed in relation to intestate succession, though it is not really contested that it has always been understood in the law of this country to include only persons born within marriage. Therefore the question is, what did the Oireachtas intend when it used the word "issue" without definition in its new law governing succession rights. It is a legitimate assumption that the Oireachtas was perfectly aware of the distinction between the succession rights of children born within marriage and those of children born outside marriage in existence at the passing of the Succession Act and of the fact that statutes in force at that time, and still in force, such as the Legitimacy Act 1931and the Adoption Act 1952and subsequent amendments, all draw attention to the distinction and make express provision for rights to succession on intestacy to be enjoyed by children who are born outside marriage. Section 9 of the Legitimacy Act 1931, which is the relevant provision of that Act, is expressly referred to in section 110 of the Act of 1965. Section 110 of the Act of 1965 also makes express reference to the relevant provisions of the Adoption Act 1952. The immediate relevance of the reference to the Adoption Act is to indicate that the Oireachtas in enacting the legislation of 1965 was conscious of the immediate limitations of the word "issue" as children who were brought in by virtue of the Adoption Act may not be any blood relation whatever of the testator or the person who died intestate whose property is in question or could be the child of the adoptor but born outside marriage and subsequently adopted. Having regard to the long-established acceptance in the law of succession that the word "issue" referred only to issue born within marriage and to the fact that the Oireachtas in no way qualified or defined the word "issue" and to the fact that it did make express provisions in section 110 of the Act of 1965 for children born outside marriage having the right in the particular cases therein referred to to succeed, it appears to the Court that the only reasonable construction which can be put upon the word "issue" in section 67 and section 69 of the Act of 1965 is that it refers solely to issue born within marriage.

7 It therefore becomes necessary to consider whether such statutory discrimination between children born inside marriage and those born outside marriage in the law relating to intestate succession is invalid having regard to the provisions of the Constitution.

8 The defendant's attack upon the validity of the statutory provisions is based upon three provisions of the Constitution, namely Article 40 section 1, Article 40 section 3 and Article 43 section 1 subsection 2°.

9 It is logical to commence the examination of these arguments by dealing with Article 43 whose provisions have been invoked because they deal with matters wider than succession rights. Article 43 deals expressly with the natural right of man, by virtue of his "rational being", to the private ownership of property and the State guarantees to pass no law to attempt to abolish the right of private ownership or the general right to transfer, bequeath and inherit property. Subsection 2° of section 1 of that Article deals with the right to have private property and the right to transfer it. Transfer clearly may be effected either by transfer inter vivos or by testamentary disposition. If it is by...