The Gazette 1978

by removing the dividing wall between Nos. 23 and 24 (3) from the ground floor of No. 24 by reinstating the staircase. The rent review clause defined the annual "rack rent" which the valuer was required to determine as the rent which "in the opinion of the person certifying, a willing lessor would take and a willing lessee not already in occupation would give in the open market for the premises with clear vacant possession". Maceys argued that they should be included as prospective lessees of the premises and Tylers argued that Maceys should not be included. The arbitrator found that if Maceys were to be included as prospective lessees and rack rent would be £4,000 but if they were to be excluded as prospective lessees the rack rent would be £2,750 per annum. The valuer stated a case to the High Court to determine the question "whether or not Macey Limited are to be excluded as prospective lessees for the purpose of determining the rack rent of the premises in accordance with the terms in the agreement". Held, adopting the concept of "open market" as explained in Inland Revenue Commissioners v. Clay (1914) 3 K .B. 466, that the valuer should fix such rent as the premises might be expected to realise "if offered under conditions enabling every person desirous of purchasing to come in and make an offer". It was urged to the Court that the valuer should take into account three parties as possible lessees of the basement namely Tylers, as occupiers of No. 25, Maceys, as occupiers of the ground floor of No. 24, and whoever might be the occupiers of the ground floor and basement No. 23. It was argued that the fact that Maceys happened also to be landlords was an irrelevant consideration. The Court held that the valuer was required to consider a hypothetical situation but was required to assume (a) that the premises were vacant, and (b) the existence of a willing landlord and a willing lessee, and should then turn to the factual situation at the date of the review and weigh up all the facts relevant for the purpose of ascertaining the open market rent at that date. He must take into account the terms of the lease itself and if he finds that the adjoining premises are occupied by a party who is the lessor of the premises the rent of which he is fixing then that party cannot be a

testator took absolute interests. The second question for decision was as to whether the condition that Elizabeth, Ann and Thomas did not lay claim to their share during the lifetime of Mary gave Mary a life estate. Held that it seemed clear that the testator wanted to ensure that his daughter Mary Ivory should be entitled to occupy the house during her lifetime and that he hoped his other children would allow her husband to continue there after her death; therefore that Mary Ivory took a life estate in the house with remainder to the four children of the testator in equal shares. A further question to be decided was as to what the interest of Patrick Ivory under the Will was. Held that the wording of the Will made it clear that the testator was making a distinction between the benefit given to Mary Ivory and the benefit given to her husband and that the use of the word "wish" in the Will amounted to no more than an expression of hope by the testator and that Patrick Ivory took no interest under the Will. Thomas Porter v. Elizabeth Fay A On, High Court (McWilliam J.) — Unreported — 25 April, 1978. LANDLORD A TENANT Rent Review — whether Lessor to be excluded as a prospective Lessee for the purpose of determining rack rent of premises. Tylers Limited ("Tylers") held the basement of No. 24 Henry Street from Macey Limited ("Maceys") for a term of years which provided for rent reviews every seven years. Maceys occupied the ground floor of No. 24 Henry Street and Tylers occupied the ground floor and basement of the adjoining premises No. 25 Henry Street. Tylers had demolished the dividing wall between the basements of Nos. 24 and 25 and used the basement of No. 24 as an extension to the basement of No. 25. The staircase giving access from the basement of No. 24 to the ground floor of 24 had been removed. Physical access to the basement of No. 24 was possible from three adjoining premises:— (1) the existing access from the basement of No. 25 (2) from the basement of No. 23

RECENT IRISH CASES

WILL Construction of Bequest — whether phrase "in the event of their death*' used In relation to beneficiaries meant "in the event of their death during the testator's lifetime". Additional question of creation of life interest. Martin Porter died on 15 January, 1976 a widower leaving four children and twelve grandchildren surviving him and by his last Will dated 8 October, 1974 he made the following bequest:— "I bequeath my house to my four children, Elizabeth Fay, Ann Caffrey, Thomas Porter and Mary Ivory in equal shares and in the event of their death to their children on condition that my children Elizabeth, Ann and Thomas already mentioned or their children do not lay claim to their share during the lifetime of my daughter Mary Ivory. In the event of my daughter Mary Ivory pr edeceas i ng her husband Patrick Ivory it is my wish that he should be allowed to continue to occupy the house for so long as he should require the same as a residence on condition that he does not let or sub-let the house". The Testator did not make any residuary bequest. The first question the Court was asked to decide was whether the testator's four children took the property absolutely or as life tenants with the remainder to their children, and, if they took as life tenants only, did the grandchildren take 'per stirpes' of 'per capita'. Each of the children of the testator married and had children. Held(pet McWilliam J.) applying the general rule, that where there is a gift over in the event of death and no indication as to the time to which the testator intended the death to relate, that it was to be presumed that he meant to refer to death occurring in his own lifetime. The general rule is stated in Jarman on Wills (8th edition) Vol. 3, page 2003 and was applied in the cases of Re Nearys Estate 7L.R. IR. 311 and In Re Bourke's Trust 27L.R. IR. 573. The Court held that as there was no indication in the testator's will of any time other than the death of the testator being intended held that the four children having survived the