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GAZETTE
MAY 1981
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
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
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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