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

.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."

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

, 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

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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