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Cite as: [1999] IESC 132

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MacDonald v. Norris [1999] IESC 132 (25th November, 1999)

THE SUPREME COURT

IN THE MATTER OF JAMES MacDONALD DECEASED

AND IN THE MATTER OF THE SUCCESSION ACT, 1965 SECTION 117

Barrington J.

Keane J.

Barron J.

7/99

BETWEEN

PETER MacDONALD

Plaintiff

V.

MARY NORRIS (SENIOR)

Defendant

Judgment delivered on the 25th day of November 1999 by BARRON J. [Nem. Diss.]

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(2)

This is an application pursuant to the provisions of s. 117 of the Succession Act, 1965 brought by the plaintiff who is the eldest son of the deceased in the title hereof.

The applicant is a farmer now aged fifty having been born on the 8th April, 1949. His father was a substantial farmer who in turn had inherited 465 acres from his father. This land was in a number of holdings. The largest was one of 156 acres. There was also a farm of 124 acres, and the residential portion and home farm comprised 114 acres as well as two smaller holdings comprising a further 64 acres. The deceased farmed the lands until the year 1963 when he was involved in a motor car accident. He sustained severe injuries to one of his legs which left it shorter than the other. As a result he was unable to drive and also unable actively to work the lands. At the time of the accident the applicant was fourteen and his younger brother was aged twelve.

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(3)

The applicant had just started technical school. However, with his father unable to work the lands he was taken out of school and he and his mother with some help two to three days a week ran the farm. His mother died in 1968 at the age of forty-eight and thereafter the applicant ran the farm with the same help. Work on the farm involved feeding cattle, sowing and cutting corn and milking dairy cows.

The deceased never got over his wife's early death and over the next ten years or so spent increasing periods with his late wife's sister and her family (the Norrises) until in the late 1970s he took up residence with that family permanently.

From the time that the deceased could no longer work the farm his sole interest lay with horses. He bought and sold horses which he grazed on the farm. He was a good judge of horse flesh and spent much of his time judging at horse shows. He also kept cattle on the lands.

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(4)

The applicant's brother married in 1978 and now has two children.

At the time of his marriage he left the farm. He had not been interested in farming and obtained employment and ultimately became a skilled glass cutter.

The applicant married in January, 1981. The deceased did not go to his wedding and appears to have had a serious dislike of his wife's family.

The plaintiffs marriage appears to have created serious bad feeling between himself and his father. In August, 1981 the deceased consulted his solicitor for the purpose of instructing him to bring proceedings to eject the applicant from the deceased's lands. The reason given to the solicitor was that he was determined as is recorded by the solicitor in an attendance on his client given in evidence "that not one inch would the Irish's get.

The Irish's were the applicant's wife's family.

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(5)

In accordance with his instructions the solicitor, Simon Kennedy, wrote to the applicant by letter dated 18th August, 1981 seeking vacant possession of the lands.

In or about this time both the applicant and his younger brother sought to get their father to transfer lands to each of them. It appears that the solicitor also approached the applicant to see whether or not the claim for possession could be settled in some way.

As well as seeking possession of the lands, the deceased in October, 1981 sold his cattle which were grazed on the lands amounting to 140 head in all. In or around this time also the applicant and his brother sought to force the deceased's hand by refusing to kennel the pack belonging to a local hunt of which the deceased was Master.

In August, 1982 there was a serious incident on the farm. It appears that the deceased and Mr. Norris were seeking to take hay from

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(6)

the farm and that the applicant sought to prevent them. It is undisputed that Mr. Norris struck the applicant with a pitch fork which resulted in a wound requiring eighteen stitches. Unfortunately, as with the issue of the dogs the evidence does not delve sufficiently deeply to ascertain the full facts nor where the rights and wrongs of the matter lay. So far as the deceased was concerned the incident over the hay was the final insult and he again went to his solicitor to instruct him this time to issue the proceedings. Letters were written on the 4th August, 1982 and the 16th September, 1982 to no avail. Proceedings were then brought by way of civil bill on the 1st October, 1982.

The course of these proceedings is particularly unhappy. The applicant counterclaimed for remuneration for the periods during which he had been running the farm. Judgment was ultimately given in favour of the deceased for possession and in favour of the applicant on foot of his

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(7)

counterclaim for the sum of £11,000. Unfortunately, the applicant refused to leave the lands. He was ultimately attached and found himself in prison from August, 1986 to July, 1987.

While the applicant was in prison the deceased took possession of the holding of 156 acres which he sold for £90,000 to a friend at what is said to have been an undervalue. He also obtained possession of the holding of 124 acres which he transferred to his younger son. The applicant's wife remained in possession of the residential holding and the two smaller holdings which were worked with it.

It is not quite clear upon what terms the applicant purged his contempt in July, 1987. Suffice it to say that he was released from prison and apparently lived in some form of caravan adjoining the family farm. Whatever did happen thereafter he apparently got back into the farm and his father took no further action against him. His father died

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(8)

on the 15th November, 1993 having made a will on the 25th May, 1993 whereby he left the applicant the sum of £5,000 and the rest of his estate to the daughter of his wife's sister whom he made executrix of his will.

The applicant's claim failed in the High Court and the matter now comes before this Court by way of appeal from that refusal.

Until his marriage, the applicant appears to have received board and keep but no wages. The profits from the land and from the cattle and horses were taken by the deceased. From the time of his marriage, the applicant appears to have tilled some forty-five to fifty acres and also to have opened a quarry on the lands which were ultimately sold. He held the benefit of the profits from the tillage and the quarry subject to providing some of the corn for the deceased's horses.

After the judgment in 1984 effort was made through the local clergy to settle the argument between father and son. This did result in a

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(9)

moratorium for a year but ultimately achieved no agreement. The resulting attachment of the applicant caused considerable ill will in the neighbourhood. The locals took sides and various hot-headed actions were taken against the purchaser of the lands and against the Norrises. While the applicant and his wife were not the main instigators of this behaviour there was no doubt and has been so held by the learned trial judge that they did nothing to prevent it. For the purposes of these proceedings, it is sufficient to say that there were two camps in the neighbourhood and that the applicant and his father were on opposing sides.

Some reference must be made to the financial position of the Norris family. In 1979 they appeared to have defaulted on loans with the Agricultural Credit Corporation. This body did not take action immediately and it was five years until a receiver was appointed by it in

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(10)

1984 an order for possession was obtained in 1988. In the same year a settlement was arrived at between the Norrises and the bank and the final payment thereunder was made in December, 1996. It is not unreasonable to infer from the evidence that the deceased was the main contributor to enable the Norris family to pay off a major part of that borrowing.

While the immediate cause of the row between applicant and deceased was the family into which he had married, there is no doubt that the relationship between father and son was somewhat unusual. Sometime in the early 1970s the deceased had introduced his son to a neighbour as being one of his employees.

This case gives rise to what is in effect a new question in this field. It is, to what extent should account be taken of bad feeling between the parent and the child. Clearly the answer must depend upon the particular circumstances of each case.

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(11)

While the act deals with unworthiness to succeed, in my view this does not mean that no other circumstances can be taken into account which would affect the worthiness of the child to succeed in an application under s. 117. The only case which deals with this issue is .J.H. v. Allied Irish Bank Limited (1978) ILRM 203. In that case the deceased had fallen out with his wife and his two children, his son and a daughter and had gone to live with his sister. He had left a small legacy to his family and the balance of his small estate to his sister. MacWilliam J. found that he was in breach of his moral obligation towards his children and was of the view that the bulk of the estate ought to have been left to them. He based his decision upon the ground that the testator had a moral duty to his children, however neglected, thwarted or aggrieved he may have felt. That, however, was a very clear case. Both the son and the daughter suffered from a depressive illness, the son more than the daughter, which

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(12)

disabled them from being able to hold down permanent employment. While MacWilliam J. found that the moral obligation existed he did not deal with the question to what extent, if any, such moral obligation may have been diminished by the bad relations between the parties.

Section 117 of the Succession Act, 1965 clearly recognises that the relationship of parent and child creates a moral obligation to provide for the child in accordance with the parent's means. This is an obligation which may be satisfied by will or otherwise: s. 117(1).

The Court has to consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the Court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children: s. 117(2). It is interesting to note that the decision which has to

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(13)

be made by the Court requires it to balance only the positions of the children inter se. There is nothing in the section which suggests that the Court should also balance other moral obligations imposed upon the testator. Nevertheless, the jurisprudence on this section shows that account has been taken of other moral obligations.

Undoubtedly, if the applicant had not taken the stance which he did, it is probable that the lands of his father would have been dissipated and nothing would have remained for him. That clearly is a factor to be taken into account when dealing with the question, whether any moral duty existed at the date of the testator's death. Nevertheless, it is the factual situation at that time which the Court has to take into account.

The section recognises a moral obligation on the part of a parent towards a child. The section deals with whether or not that moral obligation still existed at the date of death of the parent. Nevertheless, it

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(14)

is an obligation which exists from the relationship between the parties and is one which is continuous from the date of birth of the child until the date of death of the parent unless in the meantime it has been satisfied or extinguished. Consequently, whatever the legalities of the matter may have been, the decision by the deceased to eject the applicant from the lands must have been in breach of his moral obligation to provide for his son, and more particularly the moral obligation which he owed his son for keeping the farm going. That is not to say that the son's reaction was justified or something which should not be taken into account.

In my view the question which should be asked by the Court is, what would have satisfied the moral obligation of the parent to the child in the particular circumstances of that family? In the present case, the deceased had two sons. One decided to leave the land and was in a position to earn his own living. The other, the applicant, stayed on the lands and had no

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(15)

other means of livelihood. In the ordinary course of events it would have been expected that he would have been left something over half the lands by his parent. In the present case that would have suggested a holding of some perhaps 250 acres in all. The next question is, should the behaviour of the son be taken into account either to extinguish to diminish the obligation of the parent. It seems clear that the answer to that must be yes. A further question which should be asked is, what benefits, if any, did the child receive from the parent in satisfaction of his moral claim against his father?

In the present case, the learned trial judge has held that the son received substantial benefits in the way of his keep and the profits which he was able to make from the tillage and from the quarry. In my view, the learned trial judge has overstated those benefits. In the ordinary way, benefits which will satisfy the moral obligation should be advancements.

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(16)

They should relate either to an education which enables the child to make his way in life or else advancements of money which would enable the child to establish himself by their use. In the present case there were advancements in the sense that the applicant did not have to rent either the lands which he tilled or the quarry which he operated. To that extent there was advancement to the child but this was limited by the temporary nature of the provision. It is also a factor that the work which the son carried out for his father before the action was brought was worth £11,000 which he never received.

The learned trial judge was appalled by the applicant's conduct towards his father. Admittedly, it was very bad. Nevertheless, it was prompted by a defence of what he regarded, to use a biblical term, as his birthright. However much one may deplore his conduct one cannot ignore the reason for it. Nor should the unreasoning and unreasonable

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(17)

attitude of the deceased that the Irish's should get no part of his lands be ignored. Admittedly, the deceased did sign papers to enable his daughter-in-law to start a herd on the lands, but this is something which remains inexplicable given his attitude to her family.

I do not accept that the conduct of the applicant has extinguished his moral claim on the estate of his father. There are a number of factors to be taken into account. The applicant's behaviour was initially prompted by his father's reaction to his marriage. That reaction was in itself a breach of the independent moral obligation the deceased owed to his son for maintaining the farm, which the deceased would have been unable to do.

No doubt the son's reaction became appalling when he stood by when the bad feeling in the neighbourhood erupted, but there is no activity on his behalf directed against his father. In judging a child's behaviour

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(18)

towards a parent, it is important to determine whether that conduct would have been the same had a stranger been involved. It should not be overlooked that parents and children have the same genes and that an uncompromising stubbornness in the one is likely to be mirrored in the other. The particular situation would never have developed had the applicant been farming a stranger's lands. That really was the essence of the problem in the present case. The son reacted badly to what he regarded as his father's unfair attitude towards him. This had already been seen in his introducing his son to a neighbour as his employee. Further, the attitude of the applicant can be measured by the fact that his brother also reacted against his father and only ceased when his father made over one of the farms to him.

Whatever way one looks at the behaviour of both the deceased and the applicant it must be taken to diminish the parent's moral obligation

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(19)

towards the child. Certainly, if the deceased had had a moral obligation as he felt he had towards the Norris family the bad behaviour of the child would have increased the nature of such competing moral obligation.

It is quite clear that the deceased wished to befriend the Norrises. It also seems reasonably clear that the large capital sums which the deceased obtained from the sale of his farm and from the sale of his herd and which were spent during his lifetime were probably spent in assisting the Norris family. Whether or not this is so, he would not have had any moral obligation to provide for them on his death to the detriment of his son.

There is now some 170 acres of land in the estate of the deceased. While the behaviour of the applicant towards his father cannot go unrecognised, I do not regard it in the circumstances as extinguishing the moral obligation of the deceased towards him. To allow him no more

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(20)

from his father's estate is to ignore his position in such circumstances.

His only training is as a farmer and he would then be left in mid-life with no lands and no capital to acquire any. Nor taking into account the limited advancements and the legacy should it be diminished so as to disentitle him to any of the remaining 170 acres. It was likely that he would have received 250 acres and he would still have lost a probable 80 acres.

At the same time, the wishes of a testator should not be totally ignored. The deceased wished to benefit the Norris family. He chose his niece because of that family's financial difficulties. He left her the land because that was his only asset. In the context of the present case, to split off any part of the holding in favour of this beneficiary may engender unnecessary further ill will. It may be better for this reason to provide that the entirety of the remaining lands should pass to the applicant

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(21)

instead of his legacy upon condition that he pays to his cousin a sum of money as if it were a pecuniary legacy.

Before deciding on this matter the Court would like to hear the wishes of the parties and to be provided with information as to the present value of the lands and any other assets of the estate and as to the amount which would have to be borne by the parties in respect of costs of these proceedings.