The Gazette 1986

GAZETTE

JANUARY/FEBRUARY 1986

actions by personal representatives to recover lands belonging to the estate of the deceased amenable to the limitation period contained in s.45(l). • Footnotes (1) [1984] I.R. 311; [1981] I.L.R.M. 473; see also Practice Note in Gazette. October 1984 at p.213. (2) [1948] Ch. 465. (3) S.23 of the Statute of Limitations 1957. (4) See Brady and Kerr, The Limitation of Actions in the Republic of Ireland (1984) at p.86. (5) [1985] 3 ILT 102. (10) S. 10(3) of the Succession Act provides that personal represent- atives shall be the representatives of the deceased in regard to his real and personal estate and shall hold the estate as trustees for the persons by law entitled thereto. (11) Judge Sheridan did point out however that in Cahill -v- Irish Motor Traders Association [1966] I.R. 430, 449 Budd .1. found that where there was a limitation period fixed by statute the doctrine of laches did not strictly apply. DOCUMENT EXAMINATION LEGAL AID CASES UNDERTAKEN (6) Ibid at p. 103. (7) Ibid at p. 104. (8) Ibid. (9) [1961] I.R. 184.

attributable to the practice, common in rural Ireland, whereby on the death of a farmer intestate one of his children, invariably the one who had remained at home to work and live on the farm which the other children had left, would take out letters of administration to his deceased parent's estate and the question would then arise as to whether such administrator could acquire a possessory title. The Irish courts sensibly took cognis- ence of this rural phenomenon by allowing personal rep- resentatives to acquire possessory titles. The circum- stances of the cases before Judge Sheridan however were as remote from that rural practice as could be imagined. The personal representative had not been in possession of the lands since the deaths of the registered owners, had no family or sentimental connection with the disputed lands and had only initiated action to recover them at the behest of the next of kin who were statute barred. It would have been ironic, to say the least, if the court had conceded that the personal repre- sentative could take advantage of an indulgence which derived from a rural phenomenon to which the circum- stances of the instant cases bore no relation. That question did not arise for Judge Sheridan however once the learned judge had satisfied himself that the personal representative, who was acting as their attorney, could not vest the lands in the next of kin without doing viol- ence to the spirit and purpose of s.45(l). Judge Sheridan also referred to the fact that the next of kin had been tardy in their claims and suffered sales for valuable consideration to occur years before proceedings were taken." In so far as he adverted to the possibility of the per- sonal representative keeping the lands for himself Judge Sheridan opined that the personal representative would hold them as quasi trustee for the defendants who had acquired the lands for value from Jimmy Dwyer, who held the lands for the vital period of six years so as to bar the next of kin. The imposition of quasi-trusteeship on the personal representative raises interesting questions which are beyond the scope of this brief paper but in the circumstances of the instant cases it may well have afforded the only equitable solution. To allow the per- sonal representative to vest the lands in the next of kin would have subverted the policy considerations under- lying s.45(l) and it would have been both illogical and inequitable in the circumstances to allow the personal representative to keep the lands for himself. Equity and common sense demanded that the disputed lands remain in the possession of the defendants. Thus McMahon J.'s obiter dicta in Drohan has brought us to the extraordinary pass that a personal representative may be allowed to recover assets of the deceased more than six years after the date of death but be obliged, in equity, to hold such lands as quasi trustee for the persons from whom he has recovered them. The principle of limitation which, in its application to actions for the recovery of land, is intended to quiet title is not well served by such circuity. The latter however results inevitably from the fact that the limitation period in s.45(l) does not apply to actions by personal repre- sentatives and this lacuna in the legislation, which was revealed by McMahon J.'s obiter dicta in Drohan, calls for early remedial legislative action. Such remedial legis- lation, the present writer believes, should simply make

M. Ansell. M.A., 98 The Broadway. Heme Bay. Kent CT6 8EY. England. Tel. (02273) 67929 (24 hours)

INTER COMPANY COMPARISONS Company Office Searches *

Document Registration Miscellaneous Searches * Company Seals * Company Registers Share Certificates * Copies of Statutory Documents *

Contact us for all your C o m p a ny Requirements

We are siiuaicd next to ihe Companies Registration Office and guarantee a prompt efficient & competitive service

Inter Company Comparisons Limited 17 Dame Street, Dublin 2. Telephone. 796477 Telex: 24888

25