Vella v Morelli

Judgment Date19 July 1968
Date19 July 1968
Docket Number[1963. No. 1874 P.]
CourtSupreme Court

Supreme Court.

[1963. No. 1874 P.]
In bonis Morelli; Vella v. Morelli.
In the Goods of Guiseppina Morelli, Deceased;CONCETTA VELLA

Practice - Costs - Action to recall grant and condemn will - High Court order for costs - Discretionary order - Appeal on issue of costs - Principles to be applied - Appellate jurisdiction of Supreme Court - Supreme Court of Judicature Act (Ireland), 1877 (40 & 41 Vict., c. 57), ss. 52, 53 - Courts (Supplemental Provisions) Act, 1961 (No. 39 of 1961), ss. 7, 8 - Constitution of Ireland, Articles 34, 50.

Appeal from the High Court.

Guiseppina Morelli, a widow, died on the 2nd June, 1962, and was survived by her daughter, the plaintiff, and by her

son, the defendant. The deceased had executed a will, dated the 20th February, 1950, whereby she had appointed the defendant to be the executor thereof and had devised and bequeathed all her property to the plaintiff and the defendant in equal shares. On the 3rd May, 1955, the deceased made another will in the following terms:—

"This is the last Will and Testament of me Guiseppina Morelli at present residing at 111 Parnell Street in the City of Dublin, Widow.

1. I hereby revoke all Wills and other testamentary dispositions heretofore made by me.

2. I appoint Kevin J. Callanan, Solicitor, of 36 Upper O'Connell Street in the City of Dublin, to be sole executor of this my will.

3. I give devise and bequeath all my property of every nature whatsoever and wheresoever situate whether real personal or mixed and whether vested or contingent unto my son Guiseppe Morelli for his own absolute use and benefit.

Dated this 3rd day of May, 1955.

Signed: Guiseppina Morelli.

Signed published and declared by the said Testatrix as and for her last Will and Testament in our presence who at her request in her presence and in the presence of each other both being present at the same time have hereunto subscribed our names as witnesses.

Witness: Seamus P. McEvoy, Witness: Thomas Clyne,
Accountant, 111a Parnell St.,
36 Upper O'Connell Dublin.
Street, Dublin, Fish and Poultry

The plaintiff lodged a caveat in the Probate Office on the 10th September, 1962, but it was not renewed and on the 30th July, 1963, a grant of letters of administration (with the said will of the 3rd May, 1955, annexed) of the personal estate of the deceased issued in common form to the defendant—the executor named in the said will having renounced his rights. The estate of the deceased consisted of personalty and was valued at £11,883 19s. 7d. On the 1st November, 1963, the plaintiff commenced an action by plenary summons in the High Court to have the said grant recalled and the will dated the 3rd May, 1955, condemned; she also sought to have the will dated the 20th February, 1950, admitted to probate or, alternatively, to be given liberty to apply for a grant of administration (intestate) of the estate of the deceased. In her statement of claim dated the 7th January, 1964, the plaintiff sought to have the will of 1955 condemned on the grounds that it had not been duly executed, that the deceased had not known and approved of its contents and that it had been obtained by the undue influence of the defendant. The plea of undue influence was withdrawn before the trial of the action, which took place before Davitt P., sitting without a jury, and lasted for two days. The only issue of fact at the trial was whether or not the deceased had executed the will of 1955 in accordance with the provisions of the Wills Act, 1837. The witnesses to the will of 1955 gave conflicting evidence in relation to that issue but the President of the High Court upheld the will of 1955 on the ground that the presumption of due execution had not been displaced, and ordered that the Probate Officer be at liberty to re-issue the said grant of letters of administration (with the will of 1955 annexed) with a note thereon recording the proof of the said will in solemn form of law.

His Lordship allowed the defendant his costs out of the estate of the deceased but no order was made in relation to the costs of the plaintiff. The only record of the decision of the President relating to the costs of the plaintiff was a note on counsel's brief as follows:— "Having regard to all the circumstances of the case, I am satisfied that the plaintiff should not be condemned in costs but that she should not be allowed her costs out of the estate." The plaintiff appealed to the Supreme Court on the issue of costs on the grounds (a) that the President was wrong in law in refusing to award the plaintiff her costs out of the estate of the deceased; (b) that the President had failed to exercise his discretion in the matter or, alternatively, had exercised it wrongly and (c) that, having regard to all the circumstances, the President should have exercised his discretion in favour of the plaintiff.

Sect. 52 of the Supreme Court of Judicature Act (Ireland), 1877, provides that:— "No order made by the High Court of Justice or any Judge thereof, by the consent of parties, or as to costs only, being costs which by law are left to the discretion of the Court, shall be subject to any appeal, unless by leave of the Court or Judge making such order." Sect. 53 of the Act of 1877 provides, inter alia, that:— "Subject to the provisions of this Act and of Rules of Court, the costs of and incident to every proceeding in the High Court of Justice and Court of Appeal respectively shall be in the discretion of the Court, but nothing herein contained shall deprive a trustee, mortgagee, or other person of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted on in Courts of Equity; Provided, that, (subject to all existing enactments limiting, regulating, or affecting the costs payable in any action by reference to the amount recovered therein), the costs of every action, question, and issue tried by a jury shall follow the event, unless, upon application made, the Judge at the trial or the Court shall for special cause shown and mentioned in the order otherwise direct; and any order of a Judge as to such costs may be discharged or varied by a Divisional Court . . ."

Article 64 of the first schedule to the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922, provided that the judicial power of the Irish Free State should be exercised and administered in the public courts established by the Oireachtas by judges appointed in manner thereinafter provided; and that those courts should comprise courts of first instance and a court of final appeal to be called the Supreme Court; and that the courts of first instance should include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal, and also courts of local and limited jurisdiction, with a right of appeal as determined by law. Article 66 of the said schedule provided that the Supreme Court of the Irish Free State should, with such exceptions (not including cases which involved questions as to the validity of any law) and subject to such regulations as might be prescribed by law, have appellate jurisdiction from all decisions of the High Court. Article 73 of the said schedule provided that, subject to the said Constitution and to the extent to which they were not inconsistent therewith, the laws in force in the Irish Free State (Saorstát Éireann éireann) at the date of the coming into operation of the said Constitution should continue in full force and effect until the same or any of them should be repealed or amended by enactment of the Oireachtas.

Sects. 4 and 5 of the Courts of Justice Act, 1924, provided respectively that there should be constituted under that Act a High Court of Justice of Saorstát Eireann and a Supreme Court of Justice of Saorstát Eireann. Sect. 17 of the Act of 1924 provided that the jurisdiction which at the commencement of that Act was vested in or capable of being exercised by the existing High Court of the Supreme Court of Judicature in Ireland, or any division or judge thereof, should be transferred to the High Court of Justice constituted under the Act of 1924; and s. 18 of the Act of 1924 provided that the said Supreme Court of Justice should have such appellate jurisdiction as was prescribed by the said Constitution and that, subject as was provided in the Act of 1924, there should be transferred to the Supreme Court of Justice the jurisdiction which, at the commencement of the Act of 1924, was vested in or capable of being exercised by the then existing Court of Appeal of the Supreme Court of Judicature in Ireland or any judges or judge thereof. Sect. 22 of the Act of 1924 provided that the jurisdictions which were vested in and transferred to the said High Court of Justice and Supreme Court of Justice respectively should be exercised as regards pleading, practice and procedure, including liability for costs, in the manner provided by such rules of court as might be made pursuant to the Act of 1924 and that, where no provision was contained in any such rules of court and as long as there should be no rule with reference thereto, such jurisdictions should be exercised as nearly as possible in the same manner in which they might have been exercised by the respective courts from which such jurisdictions were transferred by the Act of 1924. Sect. 36 of the Act of 1924 provided for the making of rules of court relating to pleadings, practice and procedure generally in the High Court of Justice and in the Supreme Court of Justice.

Article 34 of the Constitution of Ireland provides, inter alia,that justice shall be administered in courts established by law, that the courts shall comprise courts of first instance and a court of final appeal, that the courts of first instance shall include a High...

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