The Gazette 1958-61

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 10

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 followed them. In Toate's case Warrington and Atkin L.JJ., 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."