Tuite v Tuite

• Jurisdiction: Ireland
• Judge: Mr. Justice McWilliam
• Judgment Date: 03 November 1978
• Neutral Citation: 1978 WJSC-HC 604
• Docket Number: No. 202 S.P./1978
• Court: High Court
• Date: 03 November 1978

TUITE v. TUITE

PATRICK J. TUITE

.v.

MARY TUITE, NOREEN TUITE, GERALD TUITE, JUSTIN TUITE and MATTHEW TUITE

1978 WJSC-HC 604

No. 202 S.P./1978

THE HIGH COURT

1 Judgment delivered by Mr. Justice McWilliam the 3rd day of November 1978

2 These proceedings are brought by the Plaintiff as executor of the last will, dated the 15th day of June 1959, of Jerome Tuite (hereinafter described as the Testator) who died on 2nd February 1962, for the determination of questions arising out of the dispositions made by the Testator in the events which have happened.

3 The relevant disposition in the said will is as follows:-

"I devise and bequeath my said lands, livestock, implements, furniture, chattels and effects to my nephew Patrick J. Tuite of 10, Hainault Park, Foxrock Co. Dublin, in Trust for such child of his as he my said nephew shall in his absolute discreation consider best suited to possess the lands and pursue the occupation of farmer and I give my said nephew Patrick J. Tuite the right to appoint whether by Deed or will in favour of such selected child when that child attaints the age of twenty-five years and until such appointment I give my said nephew full powers of management and control and direct that he shall not be accountable for any losses sustained during such period of management and control. It is my wish that such child when selected should receive a period of training in an Agricultural College."

4 The Testator made no disposition in default of appointment and gave the residue of his property of every kind to his nephews, the Plaintiff and Thomas Tuite, and his nieces, Mary and Noreen Tuite.

5 At the time of the execution of the said will the Testator owned lands in Co. Carlow containing about sixty-two acres on which he was then residing and on which he had resided for most of his life. He had been in a nursing home in Dublin for some time prior to his death and, after his death the Land Commission commenced proceedings for the acquisition of the lands and, notwithstanding objection on behalf of the representatives of the Testator, compulsorily acquired them for the sum of £28,000.

6 The Plaintiff has five children, all sons, of whom the youngest was born on 8th February, 1961, and all of whom, except one who is an invalid, reside with him in Dublin when not at the educational establishments which they are attending. No child has yet reached the age of twenty-five and no appointment has been made by the Plaintiff.

7 Under the circumstances, the Plaintiff cannot carry out the trusts of the will in the manner directed by the Testator and seeks the direction of the Court as to the proper application of the money representing the sale of the lands and livestock, etc., and the interest thereon and the profits thereof accumulated since the death of the Testator.

8 Had the property been compulsorily purchased before the death of the Testator, the gift would have...