The Gazette 1958-61

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the will of Margaret and issued an Equity Civil
Bill asking for a declaration under section 52 that
Margaret had acquired a statutory title and for the
deletion from the register of the defendant's name,
another sister who had taken out a grant of
administration de bonis non to the deceased registered
owner's estate and had been registered. The
combined periods of the plaintiff's and the original
administratrix's possession exceeded twelve years
but was less than twenty years.
Lavery J. said that an executor as such or an
administrator is not an express trustee for the persons
beneficially entitled under the will or an intestacy,
as the case may be of the personal estate including
chattels real which vests in him and such representa
tive may claim the benefit of the statute of limitations.
His Lordship next went on to discuss the effect
of Part IV of the Act of 1891 dealing with the
devolution of freehold registered land sold under
the Land Purchase Acts. Such lands are freehold
but on the death of the owner intestate the beneficial
interest therein, subject to the provisions of the
Act, devolves upon and is divisible among the same
persons as if it were personal estate (section 85),
and by section 84, on the death of the owner, such
land devolves to and becomes vested in his personal
representative " as if it were a chattel real vesting
in him."
In re ~Longblin (1942 I.R. 15) foliowing the English
decision of Toates v. Toates (1926 2 K.B. 30) decided
on the construction of a similar section in the Land
Transfer Act 1897, held that under section 86 the
personal representative was an express trustee of
freehold registered land vesting in him and therefore
under the Judicature (Ireland) Act, 1877, section 28
(2) this personal representative was barred from
taking advantage of the Statutes of Limitation.
Maguire P., in In Re Loughlin (supra), who did not
reserve his judgment, merely quoted from the
judgements, also given extempore, in Toates v. Toates
and fo d them. In Toate's case Warrington and
Atkin , both quoted from Lord Cairn's judge
ment in Cunningham v. Foot (1878) 2 App. Cas 974,
where he defined an express trust as " a trust which
arises upon the construction of a written instrument,
not upon any inference of law imposing a trust upon
the conscience; a trust arising upon the words of
the instrument itself.
They held that the statute was a written instrument
and the trust it imposed was therefore an express
trust. As Lord Atkin said : " I see no reason why
the word ' express ' should appear in the Act any
more than in a deed or written instrument."
The Executors Act of 1830 provided that executors
were deemed to be trustees of the residue of an
estate for the persons beneficially entitled under the
Statutes of Distributions to such residue " unless it
shall appear by the will or any codicil thereto the
persons so appointed executors were intended to
take beneficially." But Stirling J., said in Re Lacy
(1899) 2 Ch. 149 : " I do not think that the trustee
ship created by this Act was intended to be different
in its nature from that which existed previously
under the rule established in Courts of Equity and
if prior to the Act, executors were not held to be
express trustees, I do not think, they ought now to
be so held."
Lavery J. then said :—" These words might be
applied to the circumstances of this case."
" In my opinion, the trust imposed on a personal
representative by section 86 of the Act of 1891 is
of the same character as the trusts upon which
personal estate, including chattels real, vest in him."
Section 86 (i) imposes the trust subject to the
powers, rights, duties and liabilities hereinafter
mentioned and the section relates the manner of
administration (subject to the special characteristics
set forth) of personal estate and section 84 (i) vests
the land in the personal representative " as if it
were a chattel real vesting in him."
On the second point, his Lordship pointed out
that McNeill v. McNeill (1957 N.I. 10), held that the
personal representative in such a case was an express
trustee following Toates v. Toates (supra). Although
he differed from that case on that point, McNeill's
Case held also that where the personal representative
had been in exclusive possession for twenty years
he acquired a statutory title under section 13 of
Deasy's Act 1860, since section 86 created an express
trust that was by virtue of that section subject to the
"powers, rights ... of the personal representative"
His Lordship pointed out that in this case twenty
years possession without acknowledgment had not
expired, and continued : " In my opinion, a personal
representative is not entitled to rely on section (i)
of the Act of 1874. Chattels real and freehold
registered land are, for the reasons I have explained,
to be treated on the same footing."
His Lordship held that the personal representative
in respect of freehold registered land held it on the
same terms and conditions as he would hold
chattels real and that under " the Law of Property
(Amendment) Act, 186.0, section 13 the period re
quired to establish a statutory title would be twenty
years, which has not elapsed." (The Irish Law
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