Crowley v Flynn

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Barron
• Judgment Date: 13 May 1983
• Neutral Citation: 1983 WJSC-HC 2242
• Docket Number: No. 525 SP/1982
• Date: 13 May 1983

CROWLEY v. FLYNN

IN THE MATTER OF THE VENDOR AND PURCHASER ACT 1874

BETWEEN:

FINBARR J. CROWLEY

PLAINTIFF

AND

JOHN FLYNN

DEFENDANT

1983 WJSC-HC 2242

No. 525 SP/1982

Synopsis:

ADMINISTRATION

Sale of land

Personal representative - Power of sale - Duration - Death of de ceased on 15th May, 1946 - Administration de bonis non granted to vendor on 20th March, 1981 - Held that good title not shown- (1982 No. 525 Sp. Barron J. 13/5/83).

|Crowley v. Flynn|

1 Judgment of Mr. Justice Barrondelivered the 13th day of May, 1983.

2 The contract for sale in this case is dated the 7th of August, 1979. The questions raised in the summons related to a leasehold interest in the property in sale which was vested in Maud Robb at the date of her death. She died on the 15th of May, 1946 having by her last will dated 4th March, 1943 bequeathed this interest to her executor and trustee George Robb upon trust for sale and to hold the proceeds of sale as to 2/16th's for himself and as to 7/16th's for her daughter Adelaide Maud McCourt and as to the remaining 7/16th's for another daughter Rosalind Mabel Edith Webb. George Robb obtained a Grant of Probate on the 11th of July 1946. He diedon the 24th of August, 1978 and Letters of Administration de bonis non were obtained by the deceased's two daughters on the 20th of March,1981.

3 The purchaser has refused to accept title from the administratices de bonis non. He contends that no power of sale has been shown to subsist because no reason has been given for the exercise of such power by personal representatives after the lapse of 33 years. He further contends that the delay has been such that an assent to the establishment of the will trusts should be inferred. The purchaser in support of his first contention relies upon in re Molyneux andwhite 13 L.R.I. 382 which was affirmed at 15 L.R.I. 383. In this case it was held that a delay of more than 20 years creates a presumption that all the testator's debts have been paid and puts a purchaser on enquiry as to the purpose of the sale.

4 Against this contention, the vendor submits that an executor is always entitled to sell for the purpose of distribution of the assets amongst the beneficiaries and relies upon in to Norwood and Blake'scontract 1917, 1 I.R. 472. He further submits that apurchaser would in any event be protected by the provisions of section 51 of the Succession Act 1965. Section 51 (1) of the Succession Act 1965is as follows:

"The purchaser from the personal, representative of a deceased person of any property, being the whole or any part of the estate of the deceased, shall be entitled to hold that property freed and discharged from any debts or liabilities of the deceased, except such as are charged otherwise and by the will of the deceased, and from all claims of the persons entitled to any share in the estate, and shall not be concerned to see to the application of the purchase money".

5 Where there has been a lapse of at least...