Re Blake, Deceased

• Jurisdiction: Ireland
• Judgment Date: 08 March 1955
• Date: 08 March 1955
• Docket Number: [1953. No. 3683.]
• Court: High Court

[1953. No. 3683.]

In re Blake, Deceased

In the Matter of the Trusts of the Will and In the Matter of the Estate of JOHN JOSEPH BLAKE, Deceased. Between STEPHEN HUGH LYNCH, ISIDORE BLAKE and NOEL BLAKE-KELLY,Plaintiffs, and JOHN NEWMAN LOMBARD, EDWARD STEPHEN LOMBARDand MARTIN ROBERT LOMBARD (Infants), ACHESON JOSEPH BLAKE and ANNA BLAKE

Defendants.

Will - Construction - Gift of income and capital in trust for grandchildren - Condition of gift of income that children should be brought up in Roman Catholic faith - Condition of gift of capital that children should have been brought up in Roman Catholic faith - Conditions precedent or subsequent - Conditions void for uncertainty or as against policy of the law - Article 42of the Constitution - Whether if conditions void gift of income or capital took effect discharged from conditions - Malum in se or malum prohibitum - Foreign succession duty on foreign assets part of testamentary expenses - General personal estate liable in exoneration of pecuniary legacies - Heirlooms.

Construction Summons.

By his last will, dated the 8th October, 1946, and two codicils, dated respectively the 29th January, 1948, and the 21st January, 1951, John Joseph Blake, Ballyglunin Park, in the County of Galway, after appointing Stephen Hugh Lynch, Isidore Blake and Noel Blake-Kelly to be his executors and trustees, and after giving a number of pecuniary legacies, made the following bequest:—

"I bequeath a sum of £6,000 to my trustees upon the trusts and with and subject to the powers and provisions hereinafter expressed that is to say my trustees shall invest the said sum of £6,000 with power to vary the investment thereof and shall stand possessed thereof and of the investments representing the same (hereinafter called 'the trust legacy') in trust to apply the income thereof for or towards the maintenance and education of the children of my daughter Mary Rosamund provided they shall be brought up in the Roman Catholic faith and subject to the application of the said income in trust for all the children of my daughter Mary Rosamund provided they shall have been brought up in the Roman Catholic faith who being sons attain the age of twenty-one years or being daughters attain that age or marry under that age in equal shares and if there shall be only one such child the whole to be for that one and if the said children shall not be brought up in the Roman Catholic faith and no one of them shall live to attain a vested interest in the trust legacy the same shall fall into my residuary estate."

The testator also gave a number of pecuniary legacies and devised and bequeathed the residue of his real and personal estate to trustees upon trust to pay the income to his son, Acheson Joseph Blake, for life and after his death upon trust for the children of Acheson Joseph Blake as he should by deed or will appoint and in default of appointment upon certain trusts for his children and ultimately in default of issue of Acheson Joseph Blake upon certain other trusts not material to this report. The testator also bequeathed certain chattels to be held and enjoyed as heirlooms.

The testator was a Roman Catholic and his son, Acheson Joseph Blake, and daughter, Mary Rosamund Blake, had been baptised and brought up in the Roman Catholic faith. In 1943 the testator's daughter, Mary Rosamund Blake, had been married at Holy Trinity Church, Sloan Street, London (a church of the Church of England), to John Lombard, a member of the Church of Ireland. Since her marriage she had adhered to the Church of Ireland. Three children, namely, John Newman Lombard, Edward Stephen Lombard and Martin Robert Lombard, the infant defendants, were issue of the marriage. They had been baptised as members of the Church of Ireland. The testator died on the 20th January, 1952, and probate was granted to the executors on the 29th July, 1953. Mr. and Mrs. Lombard had brought up their children in the Church of Ireland and had expressed to the executors and trustees their intention of not making any change in this respect.

A substantial part of the testator's general personal estate (out of which the pecuniary legacies became payable) consisted of Canadian investments which became liable on the testator's death for Dominion and provincial estate duty in Canada.

The executors and trustees took out an originating summons in the High Court for the determination inter alia of the following questions arising on the construction of the will and in the administration of the testator's estate:—

1, Whether the conditions attached to trusts in favour of the three infant defendants (the children of the deceased testator's daughter, Mary Rosamund) in respect of the income and capital of the trust legacy of £6,000 bequeathed by the said will were void

• (i) For uncertainty; or

• (ii) As being contrary to public policy; or

• (iii) For any other reason.

2, If the said conditions should be void, whether the trusts in favour of the said infant defendants in respect of

• (i) The income of the trust legacy, and/or

• (ii) The capital of the trust legacy

failed or took effect discharged from the said conditions.

3, Whether Dominion and provincial estate duties paid in Canada in respect of the testator's Canadian assets should be paid out of the residuary estate or borne by pecuniary legatees and by residuary legatees rateably in proportion to their interest in the estate.

4, There was also a question as to which articles in an inventory passed under the bequest of chattels in trust to be held and enjoyed as heirlooms.

The three first-named defendants were the infant children of the testator's daughter, Mary Rosamund. The fourth defendant was the testator's son, Acheson Joseph Blake, and he was appointed to represent all persons interested in the residuary estate. The fifth defendant, Anna Blake, was appointed to represent all persons to whom the testator had bequeathed pecuniary legacies.

A testator bequeathed a legacy to trustees in trust to apply the income for or towards the maintenance and education of the children of his daughter provided they should be brought up in the Roman Catholic faith and subject to such application of the income in trust as to the capital for all the children of his daughter provided they should have been brought up in the Roman Catholic faith. If the said children should not be or have been so brought up the testator provided that the trust legacy should fall into his residuary estate. The testator also bequeathed certain pecuniary legacies payable out of his general personal estate which consisted partly of Canadian investments. Upon his death the Canadian investments became liable for dominion and provincial succession duties in Canada. Upon a summons for the determination of questions arising on the construction of the testator's will and in the administration of his estate it was

Held by Dixon J. that 1, the conditions upon which were given the gifts of the income and capital of the trust legacy that the children of the testator's daughter should be or (upon attaining twenty-one years, if sons, or upon attaining that age or marrying, if daughters) should have been brought up in the Roman Catholic faith were (a) not void for uncertainty, but (b) were void as against the policy of the law, being an attempt to restrict or fetter the right and duty of the parents to provide for the education of their children declared by Article 42 of the Constitution. Burke and O'Reilly v. Burke and Quail, [1951] I. R. 216 followed.

2, The condition upon which the gift of the income of the trust legacy was given being void the gift failed. Whether the said condition was a condition precedent or subsequent considered.

3, The condition upon which the capital of the trust legacy was given was (a) a condition precedent and (b) neither required nor contemplated anything in the nature of malum prohibitum or malum in se but was contrary to the policy of the law and being such the gift failed. Brown v. Peck, 1 Eden 140 not followed. The nature of malum prohibitum and malum in seconsidered.

4, The duties in the nature of succession duty payable to the Dominion and provincial governments of Canada in respect of the testator's Canadian assets were part of the testamentary expenses of getting in the estate and were payable out of the general personal estate in exoneration of the pecuniary legacies. Peter v. Stirling, 10 Ch. D. 279, and Re Maurice, 75 L. T. 415, approved and followed.

Dixon J. :—

The first question arising in this case is whether the conditions attached to the trusts in favour of the infant defendants (the children of the deceased's daughter, Mary Rosamund) in respect of the income and capital of the"trust legacy" of £6,000 bequeated by the will are void for uncertainty or as being contrary to public policy or for any other reason. This legacy was given by the will in these terms:—"I bequeath a sum of £6,000 to my trustees upon the trusts and with and subject to the powers and provisions hereinafter expressed that is to say my trustees shall invest the said sum of £6,000 with power to vary the investment thereof and shall stand possessed thereof and of the investments representing the same (hereinafter called 'the trust legacy') in trust to apply the income thereof for or towards the maintenance and education of the children of my daughter Mary Rosamund provided they shall be brought up in the Roman Catholic faith and subject to the application of the said income in trust for all the children of my said daughter Mary Rosamund provided they shall have been brought up in the Roman Catholic faith who being sons attain the age of twenty-one years or being daughters attain that age or marry under that age in equal shares and if there shall be only one such child the whole to be for that one and if the said children shall not be brought up in the Roman Catholic faith and no one of them shall live...