The Gazette 1981

MAY 1981

GAZETTE

1965 Act should not apply to the estate of any person dying before the commencement of the Act, "except to the extent to which any provision of the Act expressly provided to the contrary." On appeal to the High Court, Held, (per McMahon, J.): 1. Affirming the Circuit Court (per Judge Sheridan), that this con- tention failed since, to constitute an express provision to the contrary within Section 9 (3), it had to be clearly and not merely impliedly stated that a provision was to apply to the estates of persons dying before the commencement of the 1965 Act; and, that there was nothing in Section 126 of the 1965 Act which clearly and explicitly so provided; and that therefore, Section 45 of the 1957 Act, as inserted by Section 126 of the 1965 Act, did not come into operation until the date of commencement of the 1965 Act on 1 January 1967. 2. That Section 45 of the 1957 Act did not contain the relevant period of limitation applicable to the Plaintiffs claim in this action. The corresponding English provision was the almost identical Section 20 of the Limitation Act 1939, the application of which was discussed by Lord Green M.R. in In Re Diplock, Diplock v. Windle 11948] Ch. 465; and, that Section 20 had been held to

and three children, Thomas, John (the Plaintiff) and Brigid. His widow died on 14 January 1970. Thomas remained in possession of the lands after his father's death, to the exclusion of the Plaintiff and Brigid. Thomas died intestate on 11 March 1975 leaving his widow, Mary, the Defendant, and three children in possession of the lands. On 4th August 1976 letters of ad- ministration intestate to J.D., the said registered owner, were issued to the Plaintiff, who then brought an action in the Circuit Court in his capacity as personal representative, to recover the lands from the Defendant. The net issue in the Circuit Court proceedings was whether the Plain- tiff, in his capacity as personal re- presentative, was statute-barred pur- suant to section 45 of the Statute of Limitations 1957, as amended by substitution by section 126 of the Succession Act 1965. If the period of limitation was that provided originally in the 1957 Act i.e. 12 years — the plaintiffs claim was not statute-barred; it would be statute- barred, however, if the relevant period were that provided in section 45 of the 1957 Act, as inserted by section 126 of the 1965 Act, i.e. 6 years. It was contended for the defendant that, although the 1965 Act did not come into force until 1 January 1967 (that is, after the death of J.D.), section 126 of the 1965 Act came into operation on the date of the passing of the Act on 22 December 1965, arguing that Section 9 (3) of the 1965 Act, which Section 9 (3) provided that the provisions of the

apply to claims by an unpaid beneficiary against the executor or administrator as well as those by an unpaid beneficiary against one overpaid or wrongly paid. Following such reasoning, Section 45 of the 1957 Act, as inserted by Section 126 of the 1965 Act had no application to a claim by a personal representative to recover assets of the deceased from a person, whether a beneficiary or a stranger, holding adversely to the estate; and, the period of limitation in such a case was that ' provided for claims for the recovery of lands by section 13 (2) of the 1957 Act i.e. a period of 12 years. Section 23 of the 1957 Act applied, so that the administrator was deemed to claim as if no interval had occurred between the death and the administration; and applying the period of limitation of 12 years from the date when the cause of action accrued, the Plaintiffs claim was clearly not statute-barred, and he was entitled to recover the lands. Judgment of Circuit Court affirmed. J.D. v. M.D. - High Court (per* McMahon J.) - 31 July 1980 - unreported. Summaries of judgments prepared by Sarah Cox, William Dundon, Eamonn Hall, Charles R. M. Meredith and Joan O'Mahony and edited by Michael V. O'Mahony.

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