Re Rowan (Deceased); Rowan v Rowan

• Jurisdiction: Ireland
• Judge: McCarthy J
• Judgment Date: 01 January 1989
• Neutral Citation: 1988 WJSC-SC 1671
• Court: Supreme Court
• Docket Number: (216/87)
• Date: 01 January 1989

ROWAN v. ROWAN & ORS

Chief Justice

IN THE GOODS OF BERNARD LOUIS ROWAN (DECEASED)

JOSEPH ROWAN

PLAINTIFF

AND

VERA AGNES ROWAN & OTHERS

DEFENDANTS

1988 WJSC-SC 1671

(216/87)

THE SUPREME COURT

Synopsis:

PRACTICE

Costs

Executor - Indemnity - Foreign suit - Domicil issue - Foreign judgment - Executor directed to pay damages to beneficiaries - Whether executor entitled to be indemnified by estate of the deceased - ~See~ Administration, executor - (216/87 - Supreme Court - 12/5/88) 1989 ILRM 625

|Rowan v. Rowan|

ADMINISTRATION

Executor

Costs - Indemnity - Foreign suit - Domicil issue - Damages awarded - Plaintiff being executor and beneficiary - Choice between Irish and French domicil - By his will the testator appointed his brother, the plaintiff, to be the executor thereof and divided his estate into ten equal parts - The testator bequeathed a tenth part of his estate to each of his three daughters and others, including the plaintiff, but failed to make any testamentary provision for his wife and his son - The gross value of the estate of the testator within the jurisdiction was #109,888 and the total value of the estate was approximately #1m, of which the major part was in Switzerland - If the testator died domiciled in Ireland, his widow would be entitled prima facie to one third of the estate - If the testator died domiciled in France, his four children would be entitled to 78/80ths of the estate and the plaintiff and another would each be entitled to 1/80th part of the estate - On 16/7/85 the plaintiff issued a summons in the High Court and sought therein a declaration that the testator had died domiciled in Ireland - Similar proceedings were instituted in France by the testator's widow and children who sought a declaration that the testator died domiciled in France; the plaintiff defended those proceedings - On 19/9/85 the French court of first instance decided that the testator had died domiciled in France - Counsel in France advised the plaintiff that he should appeal that decision - The plaintiff appealed to the French court of appeal but on 5/11/86 that court affirmed the decision of the French court of first instance - Further, the French court of appeal considered that the plaintiff had acted improperly in taking and maintaining the appeal with "mere quibbling" and ordered him to pay 50,000 francs as damages to the respondents in the appeal for delaying their enjoyment of the benefits under the will - On 17/12/86 the High Court held in ~Rowan v. Rowan~ [1988] ILRM 65 that the testator died domiciled in France - In 1987 the plaintiff issued a summons in the High Court and sought an order authorising him to be paid, from the assets of the estate in Ireland, the costs incurred by the plaintiff in the French suit and the said damages - On 26/6/87 the High Court dismissed the plaintiff's claim on the grounds that it was unlikely that the plaintiff would have been given leave by the court to defend the French suit, and that the comity of courts required that the court should not act contrary to the view of the French court of appeal in regard to the plaintiff's entitlement to the costs of the French suit - The plaintiff appealed against the order of the High Court - Held, in allowing the appeal in part, that the plaintiff, as executor of the will of the deceased, was entitled to be indemnified by the estate of the deceased for all costs incurred properly by the plaintiff in prosecuting or defending actions relating to the estate of the deceased - Held that it appeared that the plaintiff had acted properly in defending the French suit at first instance and, accordingly, he was entitled to be indemnified by the estate in respect of his costs incurred in so doing - Held that, in view of the strong opinion expressed by the French court of appeal, the plaintiff had failed to establish his right to be indemnified in respect of his costs of the French appeal or the said damages - Order of the High Court varied accordingly - (216/87 - Supreme Court - 12/5/88) 1989 ILRM 625

|Rowan v. Rowan|

Citations:

ROWAN V ROWAN 1988 ILRM 1

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