Roche v McDermott

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 09 May 1901
• Court: King's Bench Division (Ireland)
• Docket Number: (1901. No. 306.)
• Date: 09 May 1901

ROCHE

and

M'DERMOTT.

(1901. No. 306.)

Chancery Division

Will — Legacy — Bequest to Rector of Jesuit Order in aid of school — Validity of — Illegality —— Scope of legislation — Legacy on condition — Undertaking to keep grave in order — Moral obligation — Rule against perpetuities — 10 Geo. 4, c. 7.

Acherley v. VernonENR Willes, 153.

Attorney-General v. Christ's Hospital 1 Russ. & Myl, 626.

Bird v. LeeELR [1901] 1 Ch. D. 715.

Bradshaw v. JackmanUNK 21 L. R. Ir. 12.

Brannigan v. MurphyIR [1896] 1 I. R. 418.

Carbery v. Cox 3 Ir. Ch. R. 231.

Dawson v. SmallELR L.R.18 Eq. 114.

In re Birkett 16 Ir. Ch. R. 191.

In re Cullimore's TrustsUNK 27 L. R. Ir. 18.

Murphy v. CheeversUNK 17 L. R. Ir. 205.

Sims v. Quinlan 3 Ir.Ch. R. 231.

Tyler v. TylerELR [1891] 3 Ch. D. 252.

Tyler's CaseELR [1891] 3 Ch. D. 252.

;94 JAM IMPORTS. [1901. ROCHE v. M'DERMOTT. (1901. No. 306.) Will—Legacy—Bequest to Rector of Jesuit Order in aid of school—Validity of—Illegality—Roman Catholic Retie Act—Scope of legislation—Legacy on condition—Undertaking to keep grave in order—Moral obligation Rule against perpetuities-10 Geo. 4, c. 7. A testratrix by her will made the following bequest: I leave to the rector of the Jesuits at M. in aid of the school there, for the training of pupils intended for the church, the sum of £500." The school at M. was the property of, and managed by, the Jesuit Order. It was divided into two parts, one of which was a lay boarding school, and the other was an apostolic school, where students were educated for the church, some for the secular priesthood, and some (if they so elected) for the Jesuit or other Order, all these apostolic students being intended to act as missionaries in foreign parts. There was no pecuniary profit to the Jesuit Order from the apostolic portion of the school. Held, that the gift was not invalid as being contrary to the policy of the Roman Catholic Relief Act (10 Geo. 4, c. 7), or as directly tending to train up students to be Jesuits. Bequest of £500 to the treasurer of the Society of St. Vincent de Paul, at L., for the benefit of the poor of L., " on condition that the committee of said society shall undertake in writing to my executors to have the railing and ironwork of the two vaults in St. L.'s cemetery . . . painted once in every three years." Held, a valid bequest. ADJOURNED SUMMONS. By her will dated 27th September, 1898, Catherine Roohe (amongst other things) made the following bequests, viz. :—" I leave to the Rector of the Jesuits at Mungret in aid of the school there for the training of pupils intended for the church the sum of five hundred pounds," and " to the Treasurer of the Society of Saint Vincent de Paul in Limerick for the benefit of the poor of Limerick the sum of five hundred pounds." By a codicil to her will dated 30th September, 1898, testatrix provided as follows :—" I also hereby declare that the bequest of Vox. 1.] CHANCERY DIVISION. 395 £500 to the Society of Saint Vincent de Paul is bequeathed to M. R. the Society on condition that the committee of said Society shall 1901. undertake in writing to my executors to have the railing and iron- ROCHE v. work of the two vaults in Saint Laurence's cemetery, in one of 31‘D sitmorr. which my mother and in the other of which my dear husband is interred, painted once in every three years." The testatrix died on 2nd March, 1901, and probate of her will and codicil was on 19th of same month granted to the plaintiffs as executors thereof. On 13th April, 1901, the plaintiffs issued a summons asking for the determination of the questions arising on the construction of the will of the testatrix. With reference to the legacy of £500 to the reotor of the Jesuit school or college of Mungret evidence was given that it was the property of and managed by the Jesuit Order, and consisted of a lay boarding school and a school which was called an apostolic school in which pupils were educated for the Roman Catholic church, some for the secular priesthood, and some, if they so elected, for the Jesuit or other Order. All the apostolic students were admitted to the college on the understanding that they were to become missionaries abroad. They sometimes discharged the duties of secular priests abroad. The United Kingdom was excluded from their missions. The schools for both lay and apostolic students were in the same building. They used the same fields and playÂgrounds, and for certain duties mixed together; they had both the same professors. There were about eighty-three lay pupils and forty-six apostolic pupils. The funds of the apostolic and lay schools were kept distinct. A profit was derived out of the lay school, but no profit from the apostolic school. Any new bequest was treated as provision for an additional apostolic student. Some of the apostolic students acted as prefects or monitors in the lay school. The apostolic students were subject to a discipline that the lay students were not subject to. Any apostolic students who elected to join the Jesuit or other Order usually decided on adopting that course in the last year of his training. The declaration of intention to do so was only made just before leaving the college. Brereton Barry, S.C. (with him, Roche) submitted the quesÂtions arising for the decision of the Court. H 2 396 THE IRISH REPORTS. [1901.. M. R. O'Connor, K. and C. F. Doyle, for the defendant Patrick 1901. Bourke, in support of the bequest to the Society of St. Vincent de Roam Paul :- v. MTEEMOTT. The will and the codicil must be taken together. There is no dedication of any part of the fund bequeathed to the painting of the graves. That is not the object of the gift. There is a good gift to...