Howard and Another v Hennessey and Another
| Jurisdiction | Ireland |
| Judgment Date | 01 January 1947 |
| Date | 01 January 1947 |
| Court | Supreme Court |
Supreme Court
Statutes of Limitation - Acknowledgment - Charge on lands created by deed becoming payable if lands transferred by deed or will - Person creating charge dying and lands passing under her will - No claim on foot of charge for more than twelve years from date of death - Person beneficially entitled to lands also executor of will - Executor-owner subsequently making will containing acknowledgment of existence of charge - Dying within twelve years period - Whether acknowledgment contained in will "given" to person entitled - Real Property Limitation Act, 1874 (37 & 38 Vict., c. 57), s. 8.
A testatrix, by her will, devised lands to her son who wag also executor of the will. She had previously charged the lands with £200 to become payable if she transferred the lands by deed or will. No claim was made on foot of the charge for over twelve years from the date of the death of the testatrix. The executor and beneficial owner of the lands died subsequently, having made his will in which he included an acknowledgment of the existence of the charge. Both estates were administered by the Court. In the administration the chargeant claimed to be entitled to the amount of his charge and relied on the acknowledgment in the later will which spoke from a date less than twelve years before the claim.
On a request to review the examiner's ruling:
Held by Overend J. that the acknowledgment was sufficient to prevent the statute from running.
On appeal:
Held by the Supreme Court, affirming Overend J., that an acknowledgment given in a will must be regarded as given to all the parties named in the will. Since the acknowledgment in this case was given by the party properly entitled to the land the statute was thereby prevented from running.
Millington v. Thompson, 3 Ir. Ch. R. 236, approved.
Motion on Notice.
By a deed of charge dated the 28th day of April, 1928, Hannah O'Leary, deceased, charged her farm, being that part of the lands of Skeaf East, containing 100 a. 2 r. 34 p. statute measure, comprised in Folio No. 2545 of the Register, County Cork, with a sum of £200 payable to her son, John O'Leary, without interest from the expiration of five years from the date thereof, provided that if the holding should be transferred by will or otherwise to any person the sum secured should become payable.
Hannah O'Leary died on the 2nd day of June, 1928, having made her last will, dated the 29th of November, 1927, by which she named her son Patrick O'Leary and her daughter Brigid Hennessey her executors. She devised and bequeathed all her property to Patrick O'Leary subject to certain legacies not material for the purposes of this report. Probate of her said will was granted to Patrick O'Leary on the 14th of August, 1928. No claim was made on foot of the charge for over twelve years from the date of the death of Hannah O'Leary. Patrick O'Leary died on the 15th of September, 1931, having made his last will which included the following acknowledgment:—"My brother John is entitled to a sum of £200 under a charge registered on the lands of Skeaf East." He devised the lands to Brigid Hennessey.
The plaintiffs as creditor administrators brought a summons to have the estates of Hannah O'Leary, deceased, and Patrick O'Leary, deceased, administered by the Court. They named John O'Leary and Brigid Hennessey as defendants as being persons having an interest in the property.
The primary decree in the administration suit was made on the 3rd of May, 1943, and it was admitted that if the acknowledgment, contained in the will of Patrick O'Leary, was sufficient to prevent the statute from running, the demand on behalf of John O'Leary had been made within the twelve years period. On the 24th April, 1946, the examiner ruled...
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