Re Thompson and M'Williams' Contract

• Jurisdiction: Ireland
• Judgment Date: 10 March 1896
• Date: 10 March 1896
• Court: Court of Appeal (Ireland)

IN RE THOMPSON AND M'WILLIAMS' CONTRACT.

Chancery Division

Appeal.

Vendor and purchaser — Powers of administrator durante minore ætate — Sale of leaseholds.

Cope v. CopeELR 16 Ch. D. 49.

In re Cope; Cope v. Cope,ELR 16 Ch. D. 49.

In re Robinson and Sords, 3 L. R. I. 429.

Monsell v. ArmstrongELR L. R. 14 Eq. 423.

New Land Development Association and GrayELR [1892] 2 Ch. 138.

Prince's CaseUNK 5 Rep. 29 (b).

Re Robinson and Sords' ContractUNK 3 L. R. Ir. 429.

Re Ryan and Cavanagh's ContractUNK 17 L. R. Ir. 42.

Re Venn and Furze's ContractELR [1894] 2 Ch. 101.

388 THE IRISH REPORTS. [1896. IN RE THOMPSON AND M'WILLIAMS' CONTRACT. Vendor and purchaser—Powers of administrator durante minore estate—Sale of leaseholds. Appeal. March 10. An administrator durante minore agate has, for the time, all the powers of an ordinary administrator, including a power to sell the estate, if it is necesÂsary in due course of administration, although not necessary for payment of debts. The assets of a deceased person consisted of a public-house, held under lease for a term of thirty-one years, of which ten years were unexpired, subÂject to a rent of £30 per annum. The lease contained a covenant against subletting, and the reversion had been purchased by a rival publican, who refused to renew at the expiration of the lease. The administrator durante minore cetate was an elderly man, who had no knowledge of the publican's business, and the persons beneficially entitled to the assets were two minors who required an advance of money. The public-house had been let at a rent of £120 a-year, but this tenancy had been determined as being a breach of covenant: Held, by the Court of Appeal (FitzGibbon and Walker, L.JJ.), reversing the decision of the Master of the Rolls, that the administrator durante minore eetate had power to sell, and that the purchaser was not entitled to a stateÂment that he was selling for the purpose of payment of debts. SUMMONS under the Vendor and Purchaser Act. The premises, the subject of the contract for sale, consisted of a public-house, No. 172, Newtownards-road, Belfast. They were formerly three houses, 154, 156 and 158, Newtownards-road, and were held under lease dated the 20th September, 1875, from James Gregg to John Joseph Hoey for thirty-one years from the 1st May, 1875, at the rent of £30. The lease contained a covenant against assignment and sub-letting without the consent of the lessor in writing. On the 19th October, 1882, the lessee died leaving a widow and three children, Mary, Josephine, and John Joseph. Mary the eldest child died in 1890. On the 12th March, 1883, letters of administration of the estate of John Joseph Hoey were granted to Mrs. Hoey. She VoL. I.] CHANCERY DIVISION. 357 died on the 12th September, 1888, leaving part of the estate M. R. unadministered, and on the 20th September, 1889, letters of _ 1 896. administration durante minore cetate were granted. to James TaoInure rsoN & Thompson the vendor. By deed dated the 20th September, 1889, M'`VuLLr& s' James Thompson let the premises to Thomas M'Cann for three CONTRACT. years from the 1st August, 1889, at the rent of £i20 a-year; and by a deed endorsed on the said lease dated the 9th May, 1890, James Thompson extended the said term for the period of five years. The consent in writing of the head landlord to this sub-lease had not been obtained. On the 4th July, 1895, an agreement was entered into between James Thompson and John M'Williams for the sale of the interest in the public-house for £1150, the purchase to be completed on the 1st November, 1895. John M'Williams died on the 29th October, 1895, and probate of his will was granted on the 13th January, 1896, to Catherine M'Williams and Bernard Malone, the executors. On the 25th October, 1895, Thomas M'Cann surrendered the interest in the sub-lease of the public-house to James Thompson. After the abstract of title had been delivered, the solicitor for the purchasers required from the vendor evidence that the sale was had for the payment of the debts of John Joseph Hoey. This the vendor declined to give, and from the correspondence it appeared that in addition to the short period of the tenure of the house, the principal purpose of the sale was to provide some money for the use of the minors, the elder of whom was about eighteen years old, and was about to enter a convent, and £70 was required for her outfit. The younger minor, John Hoey, was fifteen years old, and it was proposed to apprentice him to a trade. There were no other assets of John Joseph Hoey, except this public-house. There remained only ten years' interest in the lease to run, and it was stated by counsel that the reversion expectant on the determination of the lease had been purchased by a rival pubÂlican, who refused to extend the term of the lease, or to renew it on its expiration. James Thompson the administrator durante minore cetate was an elderly man about seventy years of age, who had no knowledge or experience of the business of a publican. He resided in the 358 THE IRISH REPORTS. [1896, M. R. county of Antrim, twenty miles from Belfast, and was Mite-1896. rate. In re The present summons was taken out by James Thompson, THOMPSON & M'WrmraAUs' for a declaration that the objections to the title had been sufd-CONTa&cr. ciently answered and that a good title to sell had been made out. Whitaker, for the vendor. Carton, Q.C., and 1l~7`Ilroy, for the purchasers. THE MASTER OF THE ROLLS : The question in this case arises as regards the title to a lease made in 1875, to John Hoey for a term of thirty-one years, which expires in 1906, of premises consisting of a public-house and plot of ground. The lessee died in 1882, intestate. He left three children surviving. One has since died. The two who are still living are minors, the eldest now aged eighteen and a-half years and the younger fifteen. Originally letters of administration to John Hoey's estate were granted to his widow. She afterwards died, and in September, 1889, letters of administration as regards the estate unadministered were granted to James Thompson. These letters were granted durante minore cetate. Thompson as such administrator de bonis non durante minore cetate entered into a contract—which is the subject of the present proceeding—with John M'Williams, who has since died. The contract was dated 4th July, 1895, and was of an informal character, and there might be some difficulty in its construction, were it not that the parties understood, and it is admitted, that the agreement is to be taken as a contract to dispose of the interest in the lease. The contract was by M`WVilliams in his lifetime to purchase the premises and a deposit of £300 was paid on foot thereof. In making title Thompson the vendor answered the requisitions of the executors of M`Williams in a way which has given rise to the present summons. The question is, has he, as vendor, shown a title which he can force on the purchaser. The difficulty is that he is administrator to one who died so long ago and that he is only administrator durante minore setae. The fact of his being only administrator de bonis non does not affect the question. There is no statement as to...