The Gazette 1986

GAZETTE

JANUARY/FEBRUARY 1986

dicta is equally applicable to the new s.45(l) which, like the old section, refers only to actions in respect of any claims to the estate of a deceased person, or to any share or interest in such estate, whether under a will or on intestacy. McMahon J.'s reasoning in Drohan clearly did not depend on the nature of the assets sought to be recovered. Judge Sheridan was on firmer ground when he turned to the well established rule that a subsequent issue of representation does not revive statute barred assets and the next of kins' entitlement to a grant, either by themselves or their attorney, depended upon their entitlement to the assets which entitlement under s.45(l) had ceased at the time of the grant, and certainly at the date of commencement of the instant proceedings. It followed logically that, if the plaintiff could pursuant to S .13(2) of the Statute of Limitations acquire the assets of Edmund, the question had then to be asked what he could do with them. In Judge Sheridan's view it would be defeating the scheme and purpose of s.45(l) if he could vest them in next of kin who were statute barred and oust the persons in possession: "This would be absurd and in my view such title (if any) would at most be quasi trustee in favour of the persons in possession holding through Jimmy Dwyer who held the lands for the vital period of six years so as to bar the next of kin." 8 Although the facts of the instant cases blatantly revealed that the personal representative was acting as attorney for barred next of kin Judge Sheridan's policy argument would apply equally in cases where the personal repre- sentative was not so acting, but was otherwise purport- ing to vest recovered assets in next of kin more than six

years after the death of the deceased. In the present writer's opinion it would introduce an unnecessary refinement into the law if the effect of the running of time was to vary in relation to whether or not the per- sonal representative was acting as attorney for barred next of kin. The alternative outcome to the personal representative vesting the lands in barred next of kin is that he keeps the lands for himself and relies in s.45(l) to resist the claims of those entitled to shares in the estate of the deceased. S.45, as amended by s. 126 of the Succession Act remains subject to s.71 of the Statute of Limitations, which provides for the postponement of the limitation period in cases of fraud, but, in the absence of any fraud on his part, there would seem to be no reason why the personal representative could not rely on the running of time against those entitled to shares in the deceased's estate. It must also be remembered that Irish law allows personal representatives to acquire possessory titles and to that end, in Vaughan -v- Cottingham 9 , the Supreme Court held that personal representatives, though trustees under the law of devolution, were not express trustees and so could take advantage of the running of time. The position of personal representatives is now clarified by s.123 of the Succession Act, which is substituted for s.2(2)(d) of the Statute of Limitations, which provides that a personal representative shall not, by reason only of s.10 10 of the Succession Act, be a trustee for the pur- poses of the Statute of Limitations. The special indulgence accorded by Irish law to per- sonal representatives in this matter of possessory titles is

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