Leonard v Walsh

CourtHigh Court
Judgment Date01 January 1941
Leonard v. Walsh.

Statute of Limitations - Death intestate of registered owner of lands - Certain next-of-kin in possession of lands - Other next-of-kin out of possession for over twelve years - Lunacy of one of next-of-kin in possession - Removal of lunatic to mental home before expiration of prescriptive period - Whether next-of-kin in possession as bailiffs for lunatic - Whether prescriptive rights acquired by lunatic.

Appeal, from the Circuit Court.

Thomas Leonard, as executor of the will of Kate Walsh, deceased, instituted proceedings in the Roscommon Circuit Court, claiming to have the estate of the said testatrix administered by the Court. A primary order for administration was made by the Circuit Court on the 29th June, 1939, and on the 10th October, 1939, the County Registrar made his certificate in the matter.

The facts as set out in this certificate may be summarised as follows:—On the death, intestate, in 1917, of Edward Walsh, the registered owner of a farm of land in County Roscommon, he left him surviving his widow, the said Kate Walsh, and five children. Two of these children left the farm in 1917 and 1920, respectively, and never returned; the share of a third child who left the farm was validly assigned to the said Kate Walsh. Kate Walsh and the two remaining children, Ellen Walsh (the first named defendant) and Patrick Joseph Walsh (the other defendant), remained on the farm and worked it until, in 1928, Patrick became a lunatic and was removed to a mental home, where he continued to reside up to the date of this action; he was made a ward of Court on the 15th day of March, 1940, after the institution of this action, and, by permission of the President of the High Court, he was made a party to the action by the Committee of his estate. After the removal of Patrick to a mental home, Kate Walsh and Ellen Walsh continued in occupation of the farm until the death of Kate Walsh in 1937.

On these facts, the County Registrar found that, on the death of Edward Walsh, the registered owner, his widow Kate had become entitled to five undivided fifteenth shares and each of the surviving children to two undivided fifteenth shares in the lands. He found that Kate Walsh had acquired the share of one of the children by assignment and that the interests of the two children who had left the farm in 1917 and 1920 respectively were statute-barred. As to these findings there was no dispute. The County Registrar further found that the shares (together amounting to four-fifteenths) of the two children whose interests were statute-barred had become vested in Kate Walsh, Ellen Walsh and Patrick J. Walsh as joint tenants, notwithstanding that Patrick had been for several years out of occupation of the farm when the prescriptive period of twelve years was completed. This last finding was disputed by the defendant, Ellen Walsh, and on the matter coming before the Circuit Court Judge (Judge Gleeson), he held that the interest of Patrick was limited to the original two-fifteenth shares acquired by him on the death of his father.

From this decision Patrick J. Walsh, by his Committee, appealed to the High Court.

The facts, summarised above, are set out more fully in the judgment of Maguire J. post.

One of several members of the family of an intestate owner of registered land, who were each entitled to an undivided share in the intestate's estate and who were together in process of acquiring by prescription the shares therein of the other next-of-kin of the intestate, became a lunatic and was removed to a mental home before the period of prescription had run in his favour.

Held that those members of the family who continued in occupation of the land had been in possession of the lunatic's share thereof as bailiffs for him, and that the lunatic was entitled to share in any prescriptive rights ultimately established.

Asher v. Whitlock, L. R. 1 Q. B. 1, and Smyth v. ByrneIR, [1914] 1 I. R. 53, applied.

Martin Maguire J. :—

I had intended to reserve judgment...

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1 cases
  • Owens v McGarry
    • Ireland
    • Supreme Court
    • 26 February 1948
    ...31 I. L. T. R. 11. (2) [1918] 1 I. R. 436. (3) [1923] 1 I. R. 30. (4) [1942] I. R. 15. (5) [1899] 2 Ch. 149. (6) [1926] 2 K. B. 30. (7) [1941] I. R. 25. (1) [1942] I. R. (S.C.), Owens and McGarry - Whether express trustee for next-of-kin - Lands unregistered at death of owner - First regist......

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