O'Brien v S

JudgeMr. Justice D'Arcy
Judgment Date05 March 1982
Neutral Citation1982 WJSC-HC 2489
CourtHigh Court
Date05 March 1982

1982 WJSC-HC 2489


No. 3264P/1977





JUDGMENT of Mr. Justice D'Arcy delivered the 5th day of March 1982


I have already dealt with the facts of this case. The defendant. Mary S., is the natural child of the late William Walker and Mary Palmer, usually called Mary Walker. The history of the matter can be briefly summarised. In her youth, Mary Pluck married James Palmer on the 27th September 1925. James Palmer disappeared in 1929 and was never heard of again. Mary Palmer and William walker deceased, then, sometime prior to 1937, entered into a solid and permanent relationship, which lasted until William Walker's death on the 5th May 1975. During this period they lived together as man and wife. There was issue of that relationship between William Walker and Mary Palmer, three children, one died in infancy, one was delicate and died at the age of about eighteen, and the defendant, Mary Stoutt. In her youth at, all times, William Walker deceased supported, maintained and educated Mary S. He performed all the usual duties of a father including giving his name to Mary S. who, before her own marriage, was always known as Mary W., and also giving her away in marriage. Mary S. has given evidence before me, thich I accept, that she was completely unaware that her parents, William Walker deceased and Mary Walker (sometimes called Palmer) were unmarried until she herself was grown up, had emigrated to England, and was about to have her own first Child in 1961.


William Walker, deceased, died on the 5th day of May 1975 intestate. He was survived by two sisters, Annie Turner, and the plaintiff, Florence O'Brien, and a brother Alexander Walker since deceased, but who left issue. The said William Walker was also survived by the lady with whom he had lived all his lifetime, Mary Walker otherwise Palmer, and by Mary S., his natural child.


The relevant provisions governing the distribution of William Walker's estate on his intestacy, are to be found in the Succession Act 1965, sections 67 and 69. Section 67 (3) provides, if an intestate dies leaving "issue" and no spouse "his estate shall be distributed amongst the "issue" in accordance with sub-section (4)." Section 69 (1) provides:-

"If an intestate leaves neither spouse nor "issue" nor a 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 such deceased brother or sister shall, where any other brother or sister of the deceased survives him, take in equal shares the share of their parent who would have taken if he had survived the intestate."


The Succession Act 1965does not contain any definition of the word "issue". Mrs. Robinson, Senior Counsel, on behalf of Mary S., urged me that the word "issue" included illegitimate issue. Mr. Neil Fennelly, Senior Counsel, on behalf of the Attorney-General, urged me that the word "issue" must be construed as meaning legitimate issue.


If there be two alternative interpretations, one which would permit a construction in accordance with the Constitution, and the other which would afford a construction which would be unconstitutional, I must give the section such construction, as would stake it valid in accordance with the Constitution. This only arises if alternative interpretations are available.


No Irish authority has been cited to me on the point. The function of a Court is to interpret a Statute "according to the Intent of them that made it" Coke 44 Institutes 330. In construing a Statute words are to be given their ordinary meaning, unless the context otherwise suggests. In Stroud's Judicial Dictionary 1903 Edition and 1950 Edition the word "issue" is stated to have a flexible meaning. The cases cited in Stroud only add to the confusion rather than clarifying it. It would appear that in Canada, the Canadian Courts in construing the Canadian Succession Act 1942, held that "issue" did not include a step-son nor an adopted son. See " Re White otherwise La Plane Estate" 1945 1 W.W.R. page 78. In " Walker deceased" " Walker .v. Lutyens" 1887 2 Ch. page 238 at page 241, a case dealing with the construction of a will, Romer, J. held that the word "issue" must be taken, at any rate, prima facie to mean legitimate children. The word "child" in an Act of Parliament always applies exclusively to a "legitimate child" per Pollock, Chief Baron Dickenson .v. N.E. Railway 33 L.J. Ex. 97. But this principle only affords a prima facie meaning, and in the case of each Statute a wider meaning may be given which would include illegitimate children if the effect is more consistent with the object of the Statute. See Williams L.J. in Woolwick .v. Fatham 1906 2 K.B. 246 at page 247.


The Oireachtas, where they so intended, expressly legislated for illegitimate children in both pre and post Constitutional Statutes. An interesting example is the Legitimacy Act 1931section 9, which provides for a right of an illegitimate to intestate succession by and to his mother. The Civil Liability Act 1961section 47 (2) (a) extends "dependants" to include illegitimate children.


In my view, had, the Oireachtas, or the draughtsman, Intended to include illegitimate children, in the word "issue" in the Succession Act 1965, they would have done so expressly. Unless the context so justifies me I cannot infer that the word "issue" should be extended by implication to include illegitimate children in the Succession Act 1965. The context neither justifies nor warrants such an interpretation. I hold that the word "issue" in the Succession Act 1965section 67 and section 69 is confined to legitimate children.


Mrs. Robinson S.C. submits that on such interpretation, the Succession Act 1965Section 67, and Section 69 are both repugnant to the Constitution, and in particular are repugnant to Article 40 and Article 43.


There is a presumption that the Succession Act 1965is not so repugnant. This presumption arises from the date upon which it was enacted, being post Constitution.


At Common Law an illegitimate child had no rights to intestate succession. If an illegitimate child died intestate and without issue his property estreated to the State. He was a filius nulius. Mrs. Robinson S.C. stated that this barbaric state of affairs had its origin in the Poor Law Acts, which were passed, on the suppression of the Monasteries in the reign of Elizabeth I. I think the origin may have been older. An interesting statement of the Common Law by Mr. Justice Gavan Duffy is to be found in " In re M. 1946 I.R. page 341". This is referred to by Mr. Justice Walsh in his judgment in G. .v. An Bord Uchtala 1980 Irish Reports.


As far as Intestate Succession to property is concerned this state of affairs has been ameliorated somewhat, by the Legitimacy Act 1931Section 9, already referred to.


Before dealing with the Articles upon which Mrs. Robinson relies it is instructive to refer to Article 41 of the Constitution which deals with the "Family". This article is relevant to my task. It provides:-


Article 41


1. (1) 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.


(2) The State, therefore, 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.


3. (1) 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.


In " The State (Nicolaou) .v. An Bord Uchtala 1966 I.R. page 567, the Supreme Court held that the unit "family" referred to in Article 41 was the family based on marriage. See also, " G. .v. An Bord Uchtala" 1980 I.R. page 32,O'Higgins C.J., at p. 55 Walsh J. at page 70 and Henchy J. at p. 86.


Article 41 is an impediment to the proposition put forth by Mrs. Robinson S.C. rather than of assistance.


In most cases, but not in the present case, if illegitimate children are to share with legitimate children on an intestate succession, they can only do so at the expense of the legitimate children. Furthermore the nature of the right to inherit is relevant. There is no positive right to inherit property. The right always depends upon the ancestor having heritable assets. Even where assets exist, the right, subject to qualification set out in the Succession Act 1965can be defeated by the ancestor making a will. The vast majority of children in the State do not inherit property, irrespective of whether they are legitimate or illegitimate.


No one will dispute that parents have a moral duty to support and maintain their illegitimate children. Costello J. has recognised and given effect to such duty in " L. .v. L". 1978 I.R. page 288. This was a claim for provision by a legitimate child under the Succession Act 1965Section 117. Costello J. took into consideration in fixing the amount to be paid to the legitimate child, the moral duty of the parent to support an illegitimate child.


The relevant portions of the Articles of the Constitution relied on by Mrs. Robinson are:-


Article 40


1. All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to the differences of capacity, physical and moral, and of social function.


3. (1) The State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.


(2) The State shall, in particular, by its laws protect as...

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