The Gazette 1980

JULY-AUGUST

1980

GAZETTE

entity was designated by the expression "the Parish of Bray", whether the residuary bequest was void for uncertainty or not, and, if the gift was a valid gift, how it was to be administered. On the first question, it was argued on behalf of the testator's widow (the first defendant) that the gift of "an average of £1,500 per year" being for an unlimited time was an absolute gift of sufficient capital to produce an average of £1,500 per year. Reference was made to Theobald on Wills (13th ed., paragraph 1326) which stated that a gift of the income of property to a person without limitation as to time, is a gift of capital. On the second question, with regard to the residuary gift, it was uncertain under the terms of the will what beneficiary or beneficiaries the testator intended to include in the description "the Parish of Bray" although, having regard to the use of the same expression to designate the beneficiary of the gift for Masses, it could be assumed that he had in mind either the Roman Catholic Church in that parish or the memnbers of that church in the parish. There was no indication as to how the residuary legacy was to be applied and unless the gift was a charitable gift, it would have failed for uncertainty and would have passed as on intestacy to the testator's widow. Reference was made to a number of cases in which gifts for the benefit of the inhabitants of a parish or town or to a parish as such were held to be charitable, including, In re Smith, Public Trustee v. Smith [1932] 1 ch. 153, in which a gift "unto my country England" was held to be a good charitable gift. Held (per McWilliam J.): (1) That the testator's estate was to be held during the life of the widow on trust to provide her with an income of £1,500 per year; that capital might be applied for that purpose; and that, if there was a surplus of income in any year, that that surplus was to be retained with the capital and would, if required, be applicable with the capital to make up the sum of £1,500 in any subsequent year. The principle referred to in Theobald by the first named defendant was a well estab- lished principle but the proposition

respect of the Marriage and Children's allowances in so far as it was intended to be part of a "package" settlement for the two year period ending 1 April 1971, and was a term relied upon by the Plaintiff's Union in its acceptance of the offer made by the Defendant upon which the claims then being negotiated were settled; that the fact that the Labour Court at that time decided against the claim of the pro- fessional staff did not end the matter as the Labour Court reversed its decision at a later date on having further information before it; that this reversal indicated that the Labour Court was satisfied that it had been incorrect initially in refusing the professional staff's claim; and that accordingly, the Plaintiff was held entitled to damages equal to what would have been the appropriate yearly Marriage allowance and the appropriate yearly Children's allow- ances (on proof that he was married and had children) for the two year period ending 1 April, 1972. Harold P. Pattison v. Institute for Industrial Research and Standards — High Court, McWilliam J. - 31 May 1979 - Unreported. Meaning of a bequest of "an average of fifteen hundred pounds per year" to a testator's widow — nature of a residuary bequest to "the Parish of Bray" and whether or not a charit- able gift. The testator, who died on 13 April 1976, had made a short will as follows: "I give divise and bequeath unto L.D. my niece . . . the sum of £2,000. Also £500 for Masses to the Parish of Bray. I bequest an average of £1,500 per year to my wife M.D. and after her death to the Parish of Bray, County Wicklow the residue of my property." The Plaintiff was the exécutor and sought the assistance of the Court, first, as to the meaning of the expression "an average of £ 1500 per year", and, second, as to the nature of the residuary bequest, whether it was a valid charitable bequest, what WILL-CONSTRUCTION

meetings and telephone conversa- tions. At that time in 1970 a claim was pending before the Labour Court for an award of Marriage and Children's allowances to the professional employees of the Defendants. This claim was discussed in the Defendant's negotiations with the officers of the Plaintiff's Union when it was indicated that if that claim of the professional staff was allowed by the Labour Court the Plaintiff and other members of his Union who were "technicians" employed by the Defendant would receive the same allowances. The position was left as stated in a letter dated 16 November, 1970 from the Defendant to the Union: "Should the question of Marriage and Children's allowances be resolved satisfactorily and should payment of this be made to pro- fessional staff, I can assure you that similar allowances will be made to all staff of the Institute (i.e. the Defendant) including the technicians." In February 1971, the Labour Court declined to make a recommendation that such Marriage and Children's allowances be paid to the professional staff. However, subsequently, on the laying of new facts before the Labour Court, this decision was reversed in favour of the professional staff when these allow- ances were recommended with effect from 2 April 1970 and the allow- ances were duly paid by the Defendant to the professional staff. A similar application by the technicians was refused by the Labour Court in 1974 and 1975. The Plaintiff then issued proceed- ings in the High Court for a declara- tion that the assurance given by the Defendant to the Plaintiff's Union in the letter of 16 November, 1970, that were the Marriage and Children's allowances recommended by the Labour Court to be paid to the pro- fessional staff that similar allow- ances would be paid to the technicians, formed a term of a bind- ing Contract between the Plaintiff and the Defendant. Held (per McWilliam J.) that the Plaintiff's claim of a binding Contract between him and the Defendant included the term in