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GAZETTE
JANUARY/FEBRUARY 1986
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
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.
(6)
Ibid
at p. 103.
(7)
Ibid
at
p.
104.
(8)
Ibid.
(9) [1961] I.R. 184.
(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.
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