Halley v O'Brien and Woods

• Jurisdiction: Ireland
• Judgment Date: 30 March 1920
• Date: 30 March 1920
• Docket Number: (1919. No. 152.)
• Court: Chancery Division (Ireland)

Halley v. O'Brien.

JOHN S. HALLEY

and

THOMAS O'BRIEN and FRANCIS WOODS

(1919. No. 152.)

Administration - Sale by Executor without the sanction of the Court - Statute of Frauds, s. 4 - Memorandum - Signature of party to be charged - Sufficiency.

A testatrix by her will appointed two executors, and, having bequeathed certain pecuniary legacies, devised and bequeathed the residue of her estate to one of the executors absolutely. One of the legacies being unpaid, the legatee brought a suit for the administration of the estate of the testatrix, and a decree for administration was made. All the other legacies, and the debts and funeral and testamentary expenses had already been paid. After the decree the executors, without obtaining the sanction of the Court, agreed to sell leaseholds, portion of the estate. The conditions of sale stipulated that the sale was to be subject to the approval of the Court. The executors afterwards refused to complete on the ground that without the sanction of the Court they could not exercise their power of sale. Held, that the purchaser was entitled to specific performance of the contract.

The solicitor for the vendors of land which had been knocked down at an auction prepared a memorandum of the agreement for sale, in the body of which the names of the vendors appeared, and he wrote at the end of the memorandum,"I confirm above sale on behalf of the vendors," with the intention that the auctioneer should sign that statement. He presented the memorandum to the purchaser for his signature, and the purchaser signed it; the document was not signed by the auctioneer or by the vendors.

Held, that the document constituted a sufficient compliance with the Statute of Frauds, sect. 4.

Action.

Mary O'Brien died on 23rd November, 1914, leaving a will, of which probate was on 24th July, 1915, granted to the defendants, the executors named therein. By her will the said Mary O'Brien gave several pecuniary legacies, including a legacy of £100 to her niece, Mary Curran, and devised and bequeathed to the defendant, Thomas O'Brien, absolutely, the residue of her real and personal estate. Mary Curran not having received payment of the legacy bequeathed to her, brought an action for the administration of the real and personal estate of the testatrix, and on 28th November, 1918, an order for administration was made, with a stay upon the order until the first day of the next sittings, for the purpose of enabling the defendant Thomas O'Brien to raise the money with which to pay the said legacy and the costs of the administration action. All the other legacies bequeathed by the will of Mary O'Brien and all her funeral and testamentary expenses had already been paid.

On 21st December, 1918, the defendants as executors of the will of the said Mary O'Brien, without obtaining the sanction of the Court, put up for sale by auction certain leasehold property, portion of the assets of the testatrix; the eighth condition of sale provided that the sale was subject to the approval of the Judge of the Chancery Division should the same be found necessary. The premises were knocked down to the plaintiff, who signed a memorandum presented to him by the defendants' solicitor, whereby he acknowledged himself the purchaser from the defendants of the property described in the particulars, and bound himself to complete the purchase, the names of the defendants,"Thomas O'Brien and Francis Woods," has been inserted in the document by their solicitor; neither defendant signed the memorandum himself. At the end of the memorandum the defendants' solicitor wrote, "I confirm above sale on behalf of the vendor," with the intention that the auctioneer should sign his name to that statement, but it was never sighed by the auctioneer or by either of the vendors.

The defendants having refused to complete, the plaintiff brought the action claiming specific performance of the contract of sale.

The defendants pleaded (inter alia) that after the order for the administration of the estate of Mary O'Brien the defendants could not exercise their power of sale without first obtaining the sanction of the Court, and that there was no note or memorandum of the contract to satisfy the Statute of Frauds.

Powell J.:—

[His Lordship, having referred to the facts as above, proceeded:—]

In my opinion, the two questions which I have to determine are: 1. Is it lawful for an executor to sell the property of his testator

in the circumstances existing in this case without the previous sanction of the Court, and is the defendant Thomas O'Brien entitled to rely upon the order of 28th November, 1918, as affording him a defence to the present action; in other words, to rely upon his own alleged irregularity in selling the property notwithstanding the existence of the order of the 28th November, 1918? 2. Has the Statute of Frauds been complied with?

Mr. Gibson referred to Daniell's Chancery Practice, 8th ed., page 931, and to the statement on that page as follows:—"After judgment the authority of the Court must sanction every subsequent proceeding. Thus, the trustees...