The Gazette 1972

legislative, executive and judicial in Ireland, are derived from the people of Ireland; Article 51 of the same Constitution declared that the executive authority of the Irish Free State was vested in the King (see judg- ment in Byrne v Ireland, 1961 Gazette). Nowhere in the Constitution of 1922 is there any reference to the King exercising the prerogative of mercy or any modi- cum of judicial power, save appeals to the Privy Council. It follows that, after the Constitution of 1922 had been enacted, the King had no function whatsoever in the selection of punishment or the administration of justice. Consequently the words "during His Majesty's pleasure" were inconsistent with the Constitution of 1922, apid were not carried over either by that Constitution, : or by the present Constitution of 1937. If the Court sfen- tences a young person to be detained, the sentence irtay be brought to an end at any time by the Court and the power to determine the duration of the sentence is vested exclusively in the Courts. There is nothing in the Constitution which indicates that an indeterminate sentence may not be imposed. (13) The sentence imposed was not the correct statu- tory one by Section 133 of the Children's Act, 1908, but the one imposed in cases of insanity under the Trial of Lunatics Act, 1883. The formula and sen- tence was one which was not authorised by law and cannot stand, and the President's decision must be allowed. The appeal was accordingly dismissed by the full Supreme Court. Separate judgments were delivered by the Chief Justice and by McLoughlin J. (who dis- agreed with the Constitutional argument). [The State (Pascal O'Hara) v. Governor of Central Mental Hospital and the Attorney General; Full Supreme Court; unreported; 20th December 1971.] The wife, who was domiciled in the Republic of Ireland, made her will in April 1967. She appointed the defen- dant bank to be executors, and, having given legacies, gave the husband her personal belongings and £15,000 if the husband did not survive her for the period, she left her property to a number of relatives. Her husband made a similar will on the same day. She died on the 4th May 1969 and was not survived by any children. Her estate was valued at £95,000. The husband was unconscious at the time of his wife's death, and died the following day. Neither husband nor wife renounced the legal right to which each was entitled in the estate of the other, by Section 111 of the Succession Act, 1963. The Revenue Commissioners contended that the hus- band was competent to dispose of the half share of the wife's estate for the purposes of Section 2 (1) (a) of the Finance Act, 1894. The defendant bank contended that the husband had never elected to taking the legal right in the wife's estate, and so was not entitled to any share of it. Until six months from receipt of notice of the right, the surviving spouse has a vested right to take the legal right. It follows that, as the husband had a vested right to take the legal right during lifetime, he was "competent to dispose" within the Finance Act, 1894, of the half share, and the Revenue Commissioners can thus claim estate duty upon it. This result was not foreseen at the time the Succession Act was passed. [re Douglas Urquhart, deed.; Revenue Commissioners v Provincial Bank of Ireland; Kenny J.; unreported; 2nd June 1972.] Revenue Commissioners entitled to claim estate duty to husband's half share under Succession Act.

Subsequent action that first registered owner is declared full owner will not deprive a bank of a right to a charge on the lands on behalf of second registered owner. The first-named defendant, the father, was registered as full owner of the lands in Folio 33488, Co. Roscom- mon, in November 1960. In April 1963 he transferred the lands to his son, Michael, the second-named defen- dant, subject to the father's right to reside in the dwellinghouse, and to be suitably supported and main- tained, but there was no specific covenant about this. In June 1963 the son Michael was registered as full owner and the right of the father to reside in the dwellinghouse and to be supported and maintained was entered as a burden on the Register. In October 1964 the son Michael applied to the plaintiff bank for an advance to be secured by the deposit of the Land Certi- ficate relating to Folio 33488. The Land Certificate was duly deposited with the bank in December 1964 and Michael now owes the bank £893 for advances made. In June 1967 the father issued a Civil Bill in the Circuit Court against the son claiming to have the deed of transfer of April 1963 set aside on the ground that it was obtained by fraud and undue influence. The order of the Circuit Judge made in March 1968 stated that this deed of transfer was void, and that the son was to hand it up to the father for the purpose of being cancelled. The Circuit Court made no inquiry as to the whereabouts of the Land Certificate, and the plaintiff bank had no notice of the Circuit Court proceedings until the Land Registry re- quested them to lodge the Land Certificate so that the father could be registered once more as full owner. This the plaintiff bank refused to do, but, despite this the father was registered as full owner in July 1968 and the burden in his favour was deleted. The plaintiff bank have now sued the two defendants, father and son, for a declaration that they are entitled to a charge on the lands arising out of the deposit of the Land Certificate. The plaintiffs contention that they took the deposit in good faith and so have a valid security against both defendants is well sustained; a purchaser or a mortgage of an equitable interest who takes in good faith without notice of a claim is not bound by it. The rights of the father to reside on the land have now been deleted from the folio, and he cannot now revive it. [Provincial Bank of Ireland v Patrick Glynn and Michael Glynn; Kenny J.; unreported; 19th June 1972.1 Arbitration award of costs set aside. A written agreement was made in February 1964 be- tween the plaintiffs, owners of the land, and the defen- dant building contractors, who contracted to build licensed» premises at Artane for £15,838. The agreement was the 1959 standard agreement of the Royal Institute of Architects of Ireland save that the words "schedule of items" were substituted for "bill of quantities". Although mahogany and red deal were specified for some of the work, it was subsequently agreed to substi- tute a better and harder timber called "amonphosis". In placing this material the contractors claimed that they were entitled to be paid on the basis that the work was "polishing" for which the appropriate rate is about eight times that for "painting". At plaintiff's request the President of the Royal Institute of Architects ap- pointed the second-named defendant to act as arbitrator.

- 2 3 0