JudgeMr.Justice Gannon
Judgment Date05 February 1979
Neutral Citation1978 WJSC-HC 1961
Docket NumberNo. 93 SP/1976
CourtHigh Court
Date05 February 1979





1978 WJSC-HC 1961

No. 93 SP/1976



Judgment of Mr.Justice Gannon delivered5th February 1979


When Gobnait Ni Bhruadair died on the 16th of January 1955, she was over ninety years of age living in Ireland having come from England to live here in or about the year 1906. She took up residence at Castlecove in Co.Kerry where she established a hospital, a co-operative store and shop and she became actively concerned and involved in the social, cultural and political activities of the people. She was a daughter of the Earl of Midleton and was born in England on the 17th of December 1861 and was given the name Albinia Lucy Brodrick. When she came to Ireland she adopted, and was known by, the name of Gobnait Ni Bhruadair. She was unmarried and at the time of her death her domicile was Irish.


By her will dated the 17th of October 1940 she appointed three executors whom she constituted the trustees of thee trusts created in her will and by a codicil dated the 15th February 1947 she reduced the number of trustees to two. Both of these have since died and the plaintiffs are presently her executors and trustees in whom her entire property is now vested in accordance with law. The plaintiffs now come before the Court by special Summons seeking the ruling of the court on the true construction of the terms of the will n relation to the trusts imposed by the will on the residuary estate. They feel in doubt as to whether the terms of the will create more than one trust fund and whether charitable or not. They find difficulty in understanding the will in relation to time of payments and persons for whose benefit payments are to be made. The first defendant is sued as protector of charities and in his capacity to represent this State. The second defendant, the present Earl of Midleton is a party appointed by Court order dated the 24th of May 1978 to represent the interests of the next of kin of the testatrix who would be interested in the distribution of her residuary estate in the event of the failure of the dispositions there of in her will. The third defendant, by the same order of the Court dated the 24th of May 1978 is added as a defendant to represent all persons who might expect to benefit in the event that, and are competent to argue that, the residuary estate is vested by way of a valid charitable gift.


The will and one codicil are made in the Irish language and Probate thereof was granted to the executors named therein on the 7th of October 1955. On the 2nd of December 1955 Probate of the will and codicil in the terms of an English translation were granted to the executors forth of the Principal Probate Registry of the High Court of Justice in England. The terms of the codicil are not of significance to the matters now before the Court.


The following extract is the portion of the will in relation to which all the parties, and in particular the plaintiffs as trustees, require as to its true construction the ruling of the Court.

"AGUS ORBUIGHIM agus do-bheirim de chomhacht dom' sheiceadóiribh agus dom' fheithmheóiribh nó dá bhfurmhór fuighleach m' eastáit do chur chun tairbhe na Poblachta ar an gcaoi is fearr dár leó AGUS ORDUIGHIM fós dom' sheiceadáoiribh agus dom' fheithmeóiribh nó dá bhfurmhór éantráth is dóigh leó gur gábhadh é "The Trust Fund" i, fuighleach m' eastáit do dhíol agus toradh an reaca d'úsáid i nean-chuid amháin no ina gcodaibh ar an gcaoi is fearr dár leó a raghaidh sé chun tairbhe do lucht na Poblachta le linn na huaire de réir cospóirí lucht na Poblachta de reir mar do bhfodh i abliadhnaibh 1919 go 1921…"


The property invested in the trustees upon which such trusts are imposed is set out by the testatrix in the manner appearing from the following extract from the English translation adopted by the Probate Office in England and concludes with the translation of the Irish extract quoted above.

"I order my trustees or trustee to put the residue of such money in their or his own name in such securities as are lawful for trustees and I empower them to change or alter if they wish those securities and to buy others that are herein authorised and I declare that the securities authorised herein to be bought or retained which shall come into possession of my trustees or trustee which are called hereafter "The Trust Fund" and the annual income coming thereout shall come to my trustees to pay an annuity of forty pounds (£40) to Cáit wife of Pádraig Ó Breanndáin as long as she lives commencing from the day of my death and to be paid in equal instalments namely a month after my death and every month thereafter free from income tax on her own personal receipt and I Direct and Empower my executors and trustees or the majority of them to apply the residue of my estate for the benefit of the Republic in the best way in their opinion And I also Direct and Empower my executors and trustees or the majority of them at any time they think it is necessary to sell "The Trust Fund"" namely the residue of my estate and to use the proceeds of the sale in one share or in shares for the benefit of the Republicans of the time according to the objects of the Republicans as they were in the years 1919 to 1921 …"


The function of this Court is to declare what are the testamentary intentions of the testatrix as expressed by her in her will. It is not the function of the Court to extract from the will by supposed construction such intentions of the testatrix as might reasonably be expected of a person of her character interests and experiences. In stating, by way of construction, the expressed intentions of the testatrix as stated in the will it may be necessary to explain in different terminology the meanings ascribed to such expressions as are used in the will. For the purposes of construing the will the Court Is bound by the Order of the Probate Court as to what comprises the will. But in this instance where the will is given in a language different from that being used by the Court of construction, this Court must express in its own terms what meaning it attributes to the actual language used in the will to express the intentions of the testatrix. In this respect it is not necessary that this Court follows precisely the wording of the translation of the will adopted in England for the Grant of Probate there. Fortunately that translation was made by the member of the Irish Bar best qualified both as a lawyer and an Irish linguist at that time to do so.


Mr.Gaffney, in submitting the case for the trustees summarised briefly and conveniently the matters upon which questions have been posed in the Special Summons by which these proceedings were initiated. He indicated a doubt as to whether or not the entire estate of the testatrix is affected by the trust directions, and suggested there might be an inconsistency between the gift to the Republic and the gift to the republicans in one or more shares. He drew attention to the difficulties also of identifying with sufficient certainty the objects of the bounty designated as "the Republic"and the class indicated as "Republicans of the time according to the objects of the Republicans as they were in the years 1919 to 1921"and the question of whether these are charitable objects in favour of which a cy prés scheme might be settled in the event of uncertainty of the class or purposes of the gifts. He referred to evidence offered in the affidavits and exhibits in relation to the testatrix which might be indicative of her intentions, but referred also to the judgment of Mr.Justice Kingsmill Moore in Re Julian Deceased 1950 I.R.57. I did not have regard to any such evidence other than that contained in the official copy Minutes of the first session of Dail Eireann on the 21st of January 1919 containing a declaration of the objects of the First Dail of the Republic State as it was prior to 1922 and also to the statement of the facts relevant to domicile. Mr.Gaffney adverted also to the possibility of failure of the disposition in trust either for uncertainty of objects or infringement of the rule against perpetuities and the consequent requirement of directions for administration of the estate as on intestacy. Apart from the extract from the Kinutes at pages 21 to 23 of proceedings on the 21st of January 1919, the first day of the first Parliament of the Republic of Ireland 1919 to 1921, published as the official record by the Stationery Office at Dublin, the statement relative to domicile, and some matters of historical fact of which I must take judicial notice I have not had regard to any extrinsic evidence purporting to indicate the probable or supposed intentions of the testatrix. The following are the matters of historical fact to which I refer namely:


1. The first Parliament, to the proceedings of which these Minutes relate, was a Parliament convened of deputies from the thirty-two counties of Ireland; 2. from 1922 to 1937 the Republic of Ireland was an independent State comprised of twenty-six counties established under a Constitution adopted in 1922 and was known in the Irish language as Saorstat Eireann; 3. in 1937 the people of these twenty-six counties adopted a Constitution for the Republic of Ireland under the name Eire in the Irish language; 4. the final Declaration of the independent republican status of this twenty-six county State and of dissociation from Great Britian and the British Commonwealth was made in 1948. These, are facts which, unless the contrary should appear from the will, I assume were...

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