Kiernan, deceased, Re; Kiernan v McGauran

• Jurisdiction: Ireland
• Judgment Date: 03 November 1922
• Date: 03 November 1922
• Court: Chancery Division (Ireland)

Kiernan v. M'Gauran

In re KIERNAN, Deceased: KIERNAN

and

M'GAURAN

Land Purchase Acts - Arrears of rent - 3 Edw. 7, c. 37, s. 24, sub-s. 8 - Sale by lunatic absolute owner - Claim by absolute owner for sum for arrears of rent.

Memorandum from the Chief Clerk in the Matter of the Administration of the estate of Thomas Kiernan, deceased, for the opinion of the Court as to whether Rose Anne M'Gauran, the defendant, as personal representative of Thomas Kiernan, a lunatic, whose lands were sold during his lunacy under the Land Purchase Acts and the purchase-money paid into Court to the credit of his lunacy matter in his lifetime, was entitled under sect. 24, sub-s. 8, of the Irish Land Act, 1903, to claim out of the said purchase-money an amount equivalent to one year's rent, in respect of the lands so sold, on which there were arrears of rent at the date of the purchase agreement.

Thomas Kiernan was by order of the Lord Chancellor, dated 1st May, 1909, declared to be a person of unsound mind, and by order of the Lord Chancellor of the 8th July, 1910, it was declared that it would be just and reasonable and for the benefit of the lunatic that the lands specified in paragraph 1 of the report therein referred to should be sold on the terms and subject to the provisions in the said report specified.

In pursuance of this order, proceedings for the sale of the estate were instituted under the provisions of the Irish Land Purchase Acts, 1903 and 1909.

Thomas Kiernan died on the 23rd December, 1914. The first allocation of purchase-money that took place after his death was the allocation carried out on the 15th June, 1916, on which date the purchase-moneys of portions of the lands comprised in the estate, which were vested in the tenants in 1913, were distributed. On the final schedule claims in respect of arrears of rent under sect. 24, sub-s. 8, and in respect of interest on the purchase-money under sect. 24, sub-ss. 2 and 3, of the Irish Land Act of 1903, were inserted on behalf of the defendant as administratrix of the lunatic. The amount of the claim for arrears of rent and interest was admitted by Mr. Justice Wylie, and the amount paid to the defendant as administratrix, and the residue transferred to the plaintiff as heir-at-law of Thomas Kiernan.

By order of this Court, dated 22nd February, 1916, which was an order made on consent, it was directed (inter alia) that a sum of £1,100 Guaranteed 3 per Cent. Land Stock, portion of the real estate of the deceased lunatic, should be retained to the credit of this suit, subject to the claims of the defendant specified in the schedule to a consent dated 15th February, 1916. The first of the claims specified in the consent was a claim for arrears of rent, amounting to a sum of £378 16s. 7d., in respect of portions of the lands comprised in the estate. At the date of the commencement of the sales of the properties the vendor, who was absolute owner of the property for sale, was a person of unsound mind under the control of the Lord Chancellor. By reason of the fact that he was absolute owner no claim was made under the provisions of sect. 24, sub-s. 8, of the Irish Land Act, 1903; but after his death it was ascertained that he had not made a will, and it therefore became necessary to segregate his real estate from his personal estate.

The Irish Land Act, 1903 (3 Edw 7, c. 37), sect. 24, sub-s. 8, provides that, on the sale of an estate where arrears of rent were due, a sum not exceeding one year's rent shall be paid out of the purchase-money to the person who would have been entitled to receive those arrears for his own use. The real estate of a lunatic absolute owner of an estate was sold to the tenants under the Act, arrears of rent being due.

Held, that no sum was payable under sect. 24, sub-s. 8, to the lunatic absolute owner, and that on his death intestate the entire purchase-money retained its character as real estate, and passed to his heir-at-law and not to his personal representative.

Cur. adv. vult.

Powell J. (having stated the facts as above):—

The question which I have to determine is whether, out of the purchase-moneys of the lands distributed and allocated to the lunatic's estate during the lifetime of the lunatic, the defendant is now entitled, as personal representative of the lunatic, to an amount equivalent to one year's rent under sect. 24, sub-s. 8, of the Irish Land Act, 1903. That sub-section is as follows:—"In the case of the sale of an estate, where at the date hereinafter mentioned [which, in the case of an estate purchased by the Land Commission, is the date of the agreement for the purchase] arrears of rent were due in respect of any holding on the estate, a sum...