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GAZETTE
JANUARY/FEBRUARY 1986
A Limitations Conundrum
by
J ames C. Brady
Professor of Property and Equity
University College Dublin
T
he view expressed by McMahon J. in
Drohan
-v-
Drohan*
to the effect that the personal representative
of a deceased person has a period of twelve years from the
date on which the right of action accrued within which
to recover any land for the benefit of the estate of the
deceased poses certain difficult questions to which the
relevant legislation provides no clear answers. The court
in
Drohan
had to determine whether s.45 of the Statute
of Limitations 1957, as amended by s. 126 of the Succes-
sion Act 1965, operated to bar an action to recover the
deceased's lands taken by his personal representative
more than six years after the accrual of the right of
action. The original s.45 had provided a limitation period
of twelve years in respect of any claim to the personal
estate of a deceased person, or to any share therein
whether under a will or in intestacy. S.45 as amended by
s.126 of the Succession Act provides a limitation period
of six years for claims to the estate of a deceased person
which period applies to claims in respect of both realty
and personalty.
Drohan
which came to the High Court by way of an
appeal from a Circuit Court judgment of Judge Dermot
Sheridan turned on the rather narrow question whether
s. 126 had come into effect on the date of the passing of
the Succession Act which was December 22nd 1965, or
the date of its commencement which was January 1st
1967. If the former date was the correct one the Plaintiff
was statute-barred and in support of that proposition
counsel for the defendant submitted that the words "is
hereby amended" in s. 126, in their ordinary and natural
sense, meant that the repeal and re-entactment of s.45
was effected on the date of the passing of the Act and
amounted to an express provision to the contrary within
s.9(3) that the provisions of the Succession Act should
not apply to the estate of any person dying before the
commencement of the Act. McMahon J. in rejecting
that argument agreed with Judge Sheridan that there
was nothing in s. 126 which would bring it within the
category of express provisions to the contrary in s.9(3);
the latter must be expressly stated and not merely implied
from the language of the section.
McMahon J. however went on to say that he did not
agree that s.45 contained the relevant limitation period.
Having considered the genesis of s.20 of the English
Limitation Act 1939, which is in almost identical terms
to s.45, as explained by the Court of Appeal in
Re
Diplock
,
2
McMahon J. concluded that s.45 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.
The period of limitation applicable to such a claim is
that provided in s. 13(2) of the Statute of Limitations for
the recovery of land, viz. twelve years from the date on
which the right of action accrued and an administrator
is deemed to claim as if no interval had occured between
the death and the administration.-
Since McMahon J.'s observations on s.45 were not
essential to his decision in
Drohan,
and the scope of the
section was not argued by counsel, they can be accorded
the status of
obiter dicta
which are not binding in subse-
quent cases. Be that as it may the distinction made by
McMahon J. between actions
by
personal representatives
to recover assets belonging to the estate of the deceased,
and actions
against
personal representatives by persons
entitled to shares in the deceased's estate is a compelling
one and wholly congruent with s.45 which referred only
to actions in respect of claims to the estate of deceased
persons, whether under a will or on intestacy. Indeed
McMahon J.'s
obiter dicta
in
Drohan
have already led
to a modification of the Land Registry practice which
permitted registration on foot of an affidavit by an
applicant that he had been in sole and exclusive occu-
pation and possession of property for a period of six
years from the date of death of the registered owner.
4
An obvious question which arises from McMahon J.'s
obiter dicta
however is whether a personal representative
who recovers land belonging to the deceased's estate
within twelve years of the accrual of the right of action,
but more than six years after the date of death, can vest
such land in next of kin or those otherwise entitled to
shares, who are statute barred. Such a course of action,
while not directly in breach of the new s.45(l) which,
like the old s.45(l) refers only to
actions
by next of kin
or those otherwise entitled, would clearly be inconsistent
with, and subversive of, the policy considerations
underlying the limitation period of six years contained
in the new s.45(l). Indeed the facts of a particular case
may reveal that the personal representative is acting at
the behest of next of kin who are statute barred and the
question will arise as to whether the limitation period
can be circumvented in this way. Such a question did
arise in
Gleeson
-v-
Feehan
and
Gleeson
-v-
Purcell
which
came before Judge Dermot Sheridan in the Circuit Court.
5
The plaintiff was the personal representative of James
Dwyer, deceased, who was the registered owner of
Folios A and B, and the personal representative of
Edmund Dwyer, deceased, who was the registered
owner of Folio C, in the register for County Tipperary.
James Dwyer had died intestate on 27th Nov. 1937
leaving a widow and six children including the said
Edmund Dwyer and Josephine Dwyer, the natural
mother of one Jimmy Dwyer. Only Edmund Dwyer and
Jimmy Dwyer had remained on the lands and the widow
and other children of James Dwyer were all dead.
Edmund Dwyer died on 22nd Oct. 1971, a bachelor and
intestate, and after his death Jimmy Dwyer remained on
the lands enjoying the rents and profits. In 1975 the said
Jimmy Dwyer sold the lands in Folio C to the first
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