Drohan v Drohan

JurisdictionIreland
JudgeMr. Justice McMahon
Judgment Date01 January 1984
Neutral Citation1980 WJSC-HC 2263
CourtHigh Court
Date01 January 1984

1980 WJSC-HC 2263

THE HIGH COURT

DROHAN v. DROHAN
(CIRCUIT APPEAL)

BETWEEN:

JOHN DROHAN
Plaintiff

and

MARY DROHAN
Defendant
1

Judgment or Mr. Justice McMahondelivered the 31st day of July 1980.

2

This is an appeal from a judgment of His Honour Judge Dermot Sheridan. The claim in the action is for the recovery of possession of the lands comprised in Polio No. 1126 County Waterford. These lands were the property of James Drohan the registered owner who died intestate on the 1st February 1956 leaving him surviving his wife Ellen, his sons Thomas and John and a daughter Brigid. The widow Ellen Drohan died on the 14th January 1970. Thomas Drohan remained in possession of the lands after his father's death to the exclusion of John and frigid. Thomas died intestate on the 11th March 1975 leaving the defendant Mary Drohan his widow and three children in possession of the lands. On the 4th August 1976 Letters of Administration Intestate to James Drohan the registered owner were issued to the plaintiff. He now brings this action to recover the lands of the deceased James Drohan. The proceedings before the Circuit Court Judge were reduced to an issue whetherthe plaintiff in his capacity as personal representative was statute barred pursuant to Section 45 of the Statute of Limitations 1957 as amended by the Succession Act 1965Section 126. if the period of limitation was that provided originally in the Statute of Limitations 1957 that is a period of twelve years the plaintiff's claim was not statute barred but if the period of six years provided in Section 45 of the Act of 1957 as inserted by Section 126 of the Succession Act 1965is the relevant period the claim was statute barred. The Succession Act 1965did not come into operation until the 1st January 1967 but it was contended for the defendant that Section 126 of the Act came into operation on the date of the passing of the Act. Section 9 (3)provides:-

3

Except to the extent to which any provision of this Act expressly provides to the contrary the provisions of this Act shall not apply to the estate of any person dying before the commencement of this Act".

4

The defendant contended that Section 126 of the Act contains an express provision to the contrary within Section 9 (3). Section 126 provides as, follows:-

"The Statute of Limitations 1957 is hereby amended by the. substitution of the following Section for Section 45;

45 (l) Subject to Section 71 no action in respect of any claim to the estate of a deceased person or to any share or interest in such estate"whether under a Will or on intestacy or under Section 111 of the Succession Act 1965shall be brought after the expiration of six years from the date when the right to receive the said share or interest accrued. (2) No action to recover arrears of interest in respect of any legacy or damages in respect of such arrears shall be brought after the expiration of three years from the date on which the interest became due."

5

Counsel for the defendant submitted that the words "is hereby amended" in their ordinary and natural sense mean that the repeal and re-enactment was effected on the date of the passing of the Act namely the 22nd December 1975 and amounted to an express provision to the contrary within Section 9 (3) that the provisions of the Act should not apply to the estate of any person dying before the commencement of this Act.

6

The learned Circuit Court Judge rejected this contention and I agree with his conclusion. To constitute an express provision to the contrary within Section 9 there must in my view be a provision which is expressed and not merely implied which is a clear and...

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7 cases
  • Gleeson v Feehan
    • Ireland
    • Supreme Court
    • January 1, 1993
    ...1965 S126 COURTS OF JUSTICE ACT 1936 S38(3) STATUTE OF LIMITATIONS 1957 S13(2)(a) STATUTE OF LIMITATIONS 1957 S13(2)(b) DROHAN V DROHAN 1984 IR 311 DIPLOCK V WINTLE 1948 CH 465 SUCCESSION ACT 1965 S111 MINISTRY OF HEALTH V SIMPSON 1951 AC 251 LIMITATION ACT 1939 (UK) S20 STATUTE OF LIMITA......
  • Gunning v Sherry
    • Ireland
    • High Court
    • February 28, 2012
    ...EQUITY & THE LAW OF TRUSTS IN IRELAND 5ED 2011 P225 STATUTE OF LIMITATIONS 1957 S45(1) STATUTE OF LIMITATIONS 1957 S13 DROHAN v DROHAN 1981 ILRM 473 GLEESON v FEEHAN 1993 2 IR 113 RIORDAN v IRELAND (NO.4) 2001 3 IR 365 BURKE v JUDGE FULHAM UNREP IRVINE 23.11.2010 2010/5/1189 2010 IEHC 44......
  • McHugh v McHugh
    • Ireland
    • Supreme Court
    • December 17, 2015
    ...of the Supreme Court in Gleeson v. Feehan (No 1) [1991] I.L.R.M. 783 confirmed the obiter dictum of McMahon J. in Drohan v. Drohan [1981] I.L.R.M. 473 to the effect that s. 45 of the 1957 Act does not apply to actions brought by a personal representative to recover land from someone in poss......
  • Ireland. Muckley
    • Ireland
    • Supreme Court
    • November 1, 1985
    ...September, 1972). Buckley and others (Sinn Féin) v. The Attorney General [1950] I.R. 67. Costello v. Director of Public Prosecutions [1984] I.R. 311; [1984] I.L.R.M. 413. Terrell v. Secretary of State for the Colonies [1953] 2 Q.B. 482; [1953] 3 W.L.R. 331; [1953] 2 All E.R. 490. East Doneg......
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