Dooley v Dooley

• Jurisdiction: Ireland
• Judgment Date: 01 January 1927
• Date: 01 January 1927
• Court: Supreme Court (Irish Free State)

Supreme Court.

Dooley v. Dooley

DOOLEY

and

DOOLEY

Will - Action to establish - Motion to stay proceedings - Prior grants of letters of administration - Orders made thereunder - Acquiescence by plaintiff - Revocation of grants - Res judicata - Estoppel - Laches.

Motion.

James George Dooley died on the 15th August, 1916, leaving one son, George Dooley, and six daughters: Catherine, who was married to one, Nicholas Kelly; Bridget, Mary, Annie, Margaret, and Frances, surviving. He left a document purporting to be a will, dated 23rd July, 1916, but upon investigation it was found that it had not been validly executed. He also left a memorandum in which he directed that certain amounts should be paid out of a sum of £8,000 on deposit in the bank to four of his unmarried daughters. He had made a will, dated the 23rd July, 1913, but it was burned by his secretary at his direction, and all his children believed that this will had been duly revoked. It was not until the year 1925 that George Dooley was informed that this will had not been burned in the presence of the testator, and that it was burned when the will of the 23rd July, 1916, was made, under the belief that the latter will had been validly executed. Accordingly, all the children of James George Dooley believed at the time of his death that he had died intestate. His property, amounting to £30,000 in value, included fifteen farms. After his death, his son, George Dooley, remained in occupation of the property and in receipt of the rents and profits. George Dooley endeavoured to induce his sisters to agree to a distribution of their father's assets upon the basis of the intentions indicated by the invalid will of 23rd July, 1916, and the memorandum left by him, but whether a binding agreement was reached between them or some of them was a matter in dispute. On the 8th August, 1917, one of the daughters, Catherine Kelly, obtained a grant of letters of administration to the personal estate of her father as upon an intestacy, but she died on the 4th March, 1918, without having done anything towards administering the estate. Prior to her death she had agreed with her brother, George Dooley, to assign to him her distributive share of her father's assets for the sum of £2,750, but she died before the assignment was completed. The transaction was, however, carried out by a deed, dated the 9th January, 1919, made between her husband, Nicholas Kelly, and George Dooley. On 11th March, 1920, George Dooley took out a grant of letters of administration de bonis non to his father. His affidavit upon which the application was grounded stated that his father had died intestate, that a grant of administration had been issued to Catherine Kelly, and that she had died without having fully administered. Subsequently disputes arose between George Dooley and his sisters, and on the 6th July, 1923, one of his sisters; Annie Dooley, issued an originating summons, claiming as one of the next-of-kin of her father against her brother, George Dooley, as administrator, the administration of the estate; and on the 25th July, 1923, the then Master of the Rolls made an order for administration. Pursuant to an order in the matter, dated the 28th January, 1924, a special certificate was made up by the Chief Clerk on the 29th February, 1924, certifying the next-of-kin, that the only debt remaining due was in respect of an untaxed bill of costs, and that the funeral expenses of the deceased had been paid. On the 4th May, 1925, Johnston J. made an order that four payments of £2,000 each be made to Annie Dooley, Bridget Dooley, Frances Dooley, and Margaret Dooley out of the funds in Court to the credit of the matter, amounting to over £18,000, on account of their respective shares of the assets of their father. George Dooley was represented by counsel at the hearing of the summons upon which this order was made. In November, 1925, George Dooley learned for the first time the circumstances under which his father's will, dated the 23rd July, 1913, was burned, already referred to, and which are fully stated in the judgment of FitzGibbon J. Being advised by his solicitor, Mr. Colfer, on consideration of these new facts, that this will had not been validly revoked, George Dooley, on the 21st January, 1926, issued a writ against his five surviving sisters, claiming that the grant of administration de bonis non to himself on the 11th March, 1920, and, if necessary, the grant to his sister, Catherine Kelly, on 8th August, 1917, might be revoked, and that the burned will of 1913, which he propounded from a reconstruction made by his father's secretary, who witnessed it, and who used it as a draft from which she wrote out the will of the 23rd July, 1916, might be duly established. His statement of claim was delivered on March 11th.

On the 16th March a summons was taken out on behalf of two of the defendants, Annie and Frances Dooley, asking that all further proceedings in the action be stayed, and the action dismissed on the grounds that the plaintiff was estopped from seeking to establish the alleged will, that he was guilty of such laches as to disentitle him to proceed with the action, and that the order and decision in the Chancery Division was res judicata, and that the action was vexatious and an abuse of the process of the Court. Margaret Dooley did not appear, and was not represented at the hearing of the motion, which was grounded upon the affidavit of the other applicant, Annie Dooley, setting out the facts, as already stated, and the proceedings in the Chancery matter.

George Dooley appealed from the order of Sullivan P. to the Supreme Court (*).

D.'s father died in 1916, and was believed to have died intestate. He left one son, D., and several daughters. After his father's death D. remained in occupation of his father's property and in receipt of the rents and profits. In 1917 C., one of the daughters, obtained a grant of letters of administration, but died the following year without having done anything towards administering her father's estate. In 1920 D. took out a grant of letters of administration de bonis non. In 1923 another daughter, having demanded an immediate payment on account of her distributive share, and not having received it, issued an originating summons, claiming, as one of the next-of-kin, against D., as administrator, the administration of her father's estate, and in July, 1923, an order for administration was made. Pursuant to an order in the matter, a special certificate was made up by the Chief Clerk in February, 1924, certifying the next-of-kin, and that the debts had been paid, except a bill of untaxed costs. On May 4th, 1925, Johnston J. made an order that four payments of £2,000 each be made to four of the daughters out of the funds in Court to the credit of the matter on account of their respective shares of the assets of their father. D. was represented by counsel at the hearing of the summons upon which this order was made. In November, 1925, D. was advised by his solicitor that a will which he knew his father had made in 1913, and which had been burned by his father's directions, was not legally revoked, the circumstances of the burning of the will only then becoming known to him. Up till then D. had believed that this will had been duly revoked. D. thereupon instituted an action to revoke the grant of letters of administration de bonis non to himself, and, if necessary, the grant to C., and to prove in solemn form the will of 1913. A stay on the proceedings in the administration matter was granted on D.'s application, pending the decision in the probate action. Two of the daughters then issued a summons to stay proceedings in the probate action, and to have the action dismissed on the ground that D. was estopped from seeking to establish the will of 1913, that he was guilty of laches, that the order and decision in the Chancery Division was res judicata,and that the action was vexatious and an abuse of the process of the Court:

Held by Sullivan P., that although the taking of the grant of administrationde bonis non did not disentitle D. to bring the action to establish his father's will, yet the order of Johnston J. operated as an estoppel, and the question whether D.'s father had died testate or intestate could not be litigated again in the probate action; and, further, that D. had not exercised reasonable diligence in ascertaining the facts as to the destruction of his father's will, and accordingly that the probate action must be dismissed.

Held by the Supreme Court, that Sullivan P. had overlooked the nature of the proceedings in the Chancery Division. Being an originating summons by a next-of-kin for administration against D. as administrator, it was not open to D. to challenge in those proceedings the fact that he was an administrator. D. could not, therefore, be held estopped as having admitted a fact which it was never open to him to deny, and upon which he could not have asked the Judge to decide. Nor was D. estopped by conduct from prosecuting his action to establish his father's will, and accordingly the judgment of Sullivan P. must be reversed.

Quaere: Whether in the event of the will being established, the grant of letters of administration was wholly void or only void as from the date upon which it was recalled?

Cur. adv. vult.

19 April

Sullivan P. :— I allowed this motion to stand for judgment in order that I might consider the arguments advanced by counsel and the cases cited. Having done so, I have come to the conclusion that the defendant is entitled to succeed in this motion.

It is unnecessary for me to recapitulate the facts stated in the affidavits read at the hearing. The only evidence before me was that contained in the affidavits and the orders and documents therein referred to. I was not asked to hear oral evidence on either side. In these circumstances, I think I must assume that the plaintiff...