The Gazette 1986

GAZETTE

JANUARY/FEBRUARY 1986

named defendant for £5,000 and the lands in Folios A and B to the second named defendant for £12,000. The plaintiff sought possession of the lands contained in Folios A, B and C and the defendants replied that he was statute barred and had been since the expiry of six years from Edmund Dwyer's death. The latter was the crucial date since James Dwyer had died in 1937 and his title to the lands would have been effected by s.24 of the Statute of Limitations which, subject to formalities, extinguishes title to land after twelve years. Judge Sheridan could not believe that the taking out of adminis- tration could revive claims already barred and thus James Dwyer's estate was only important to the extent of the portion of the two Folios captured by Edmund Dwyer during his life. The plaintiff contended that the relevant limitation period was twelve years and that proceedings had been commenced within that period. On the face of it, that contention was consistent with, and supported by, McMahon J.'s obiter dicta in Drohan. Judge Sheridan, however, found for the defendants on the ground that the right of Edmund Dwyer's next of kin to shares in his estate accrued on his death and that right was barred after the expiry of six years from that date. S.45(l) has no direct application to an action brought by a personal representative but the facts, as agreed, revealed that the plaintiff was acting at the behest and authority of the next of kin of the registered owners, who resided in America. The fact that the personal representative was acting as attorney for next of kin who were statute barred led Judge Sheridan, unavoidably in the present writer's opinion, to the conclusion that it would appear to defeat the purpose of s.45(l) if his personal represent- ative could acquire Edmund Dwyer's assets and vest them in his next of kin outside the six year limitation period. The latter course of events however is not improbable in the light of McMahon J.'s obiter dicta in Drohan and that dicta presented an obstacle which Judge Sheridan felt obliged to surmount. Having referred to the status of McMahon J.'s observations on the scope of s.45 as obiter dicta he went on: "This may be so but, obiter or not, I would never regard any pronouncement of McMahon J., even if it does not bind me, other than with respect and total admiration and I would follow it except in circumstances where I am forced not to do so, in conscience, having regard to my own view and con- viction." 6 A consideration of McMahon J.'s observations in Drohan on the scope of s.45 led Judge Sheridan to the conclusion that McMahon J. was dealing with the law as it was prior to the Succession Act, 1965. That conclus- ion was based on McMahon J.'s equation of s.45 with s.20 of the English Limitations Act of 1939 in both of which the claims barred were described as actions in respect of claims to the personal estates of deceased persons. Since the new s.45(l) applies to claims in respect of both real and personal property Judge Sheridan believed that the views of McMahon J. in Drohan were clearly distinguishable from the instant cases and he held "that by reason of the new s.45(l), as distinct from the old section which did not affect real property, the claims of the next of kin were barred after the lapse of six years from Edmund's death." 7 With respect to Judge Sheridan, McMahon J.'s obiter

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