Legal history was made in Letterkenny Circuit Court yesterday when two brothers fostered by a Co Donegal couple 28 years ago were awarded the farm and family home they grew up on.
Kevin (37) and Gerry (40) O'Rourke, fostered by Paddy and Mary Boyle at Arduns, Gweedore, claimed half of a 7 1/2-acre farm, including two sites, not bequeathed in Mr Boyle's will.
Mr Gerry O'Rourke was also seeking the return of £5,000 he lent his late foster father to purchase a tractor and fencing posts. Mr Boyle died suddenly three years ago at the age of 79.
Both brothers left what had been their family home when Mr Boyle's sister, Ms Mary Gallagher, told them she "had two sons", after they went to make inquiries about the estate and their home.
The brothers took the case against Ms Gallagher's son, Mr Eoghan Gallagher, also from Gweedore. Mr Gallagher was bequeathed an adjoining 8 1/2-acre farm from Mr Boyle's estate and he was executor of his will.
In evidence Mr Kevin O'Rourke said he had lived on the Boyle farm from the age of seven, working the farm with his father. Soon after Ms Mary Boyle died from cancer in 1975, he left school to take care of the house and farm.
Mr Boyle had been working full time for the ESB but after Ms Boyle's death he used to travel home at lunchtime to see to the boys' needs.
"He used to come home at 1 o'clock to make it up to me and my brother, it was very difficult for him. I was a great man in the house, very tidy, and I learned fast and took care of the house and farm. It was my home and I had a great love of him. We got on like a house on fire," Mr O'Rourke said.
When Mr Gerry O'Rourke was 17 he became a soldier and went home every weekend he could and frequently sent money home. He bought Army shoes and boots at a reduced price and sent them to his father and brother.
"We both considered Paddy to be our father and we had a normal father-and-son relationship. He told me he would never like to see Kevin leave the land. I have a great admiration for what Kevin did and so had my father."
Mr Boyle had asked Mr Gerry O'Rourke to build a house on the farm and had told him to pick a site.
Both brothers accepted that their late father had always told them his sister Mary had a "half say" in the family farm.
Mr Damian Crawford, counsel for Mr Kevin O'Rourke, asked Mr Eoghan Gallagher if he believed it was in the character of Mr Boyle to want the brothers thrown from their home and not to make provision for them.
Mr Gallagher replied that Mr Boyle, in his opinion, did not regard the brothers as his sons, and they were not entitled to anything, as they had been fed and given a roof over their head.
Mr Gallagher had refused to return the £5,000 to Mr Gerry O'Rourke, but in court he admitted he was entitled to it.
In 1984, when Mr Gallagher married, Mr Boyle gave him a site on the adjoining 8 1/2-acre farm he had purchased in 1961. In 1994 Mr Kevin O'Rourke married and his foster father gave him a site on the 71/2-acre farm to build a house. This site, Mr O'Rourke said, was a wedding present from his father.
The site was signed over to Donegal County Council and it was to build the house for Mr O'Rourke. The only income he received was the dole. The house could never be built because of the partially intestate estate.
In December 1994 Mr Boyle made his will and left the adjoining farm to Mr Gallagher, as he had told him he would.
After Mr Boyle's death Mr Kevin O'Rourke sold cattle on the farm and handed the money to his father's sister, Ms Gallagher. Mr O'Rourke remained in the family home for a short time before moving to a council house in Dungloe with his wife and two children.
Because their father had not mentioned the family farm in his will, Mr Gallagher said, he believed it passed to his mother as the only remaining sister of the deceased. She was too ill to come to court to give evidence, he said.
The land in question was valued by a local auctioneer at £100,000, not including the site signed over to the council. These values were disputed by a second local auctioneer, who said it was worth considerably less.
Judge Matthew Deery instructed the parties to attempt to reach a settlement - otherwise "it would sour relationships for the rest of their lives". As they failed to do so, he ruled in favour of the O'Rourke brothers under the doctrine of legitimate expectation.
He described the relationship between the Boyles and the two boys as one of a complete family unit. "They had great love and affection for Mary and Paddy Boyle and this was reciprocated. Kevin was employed in seeing to home comforts, a very necessary element in the enjoyment of life."
He pointed out that the accepted half-share that Ms Gallagher was entitled to was never reflected in any of the legal documents and said the lands bequeathed to Mr Gallagher represented half of Mr Boyle's estate.
"It is fair to say there should be some distinction in relation to people in long-term fostering arrangements that transcends just a year or two. This went far beyond such arrangements," the judge added.
He awarded Mr Kevin O'Rourke the 7 1/2-acre family farm and home as well as the site handed over to Donegal County Council for his house. He awarded Mr Gerry O'Rourke the site Mr Boyle had offered him and ordered that his £5,000 be returned.
"The family should be grateful to these gentlemen for making the lives of the Boyles more enjoyable," Judge Deery commented.
Leave to appeal was granted.