The Estate of John Stinson and Thomas Stinson, Owners; Margaret M'Munn, Petitioner

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 01 November 1909
• Court: Court of Appeal (Ireland)
• Date: 01 November 1909

In the Matter of the Estate of John Stinson and Thomas Stinson

Owners

and

Margaret M'Munn

Petitioner.

Ross, J.

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1910.

Conversion of real estate — Sale for discharge of incumbrances — Surplus proceeds — Realty or personalty.

An order of the Court, rightfully made for the sale of real estate during the life of the owner, operates as a conversion from the date of the order, so that the proceeds are personalty; and after the death of the owner intestate, there is no equity for reconversion as between his heir-at-law and next-of-kin.

Incumbrancer's Petition for Sale.

The owner, at the time of the filing of the petition, was entitled to an estate in fee-simple in the lands, the subject of the petition. The absolute order for sale was made in the year 1893. The owner, Thomas Stinson, died intestate on the 30th June, 1908. The sale was completed in July, 1908, when the purchasemoney was lodged in Court. The heir-at-law of Thomas Stinson claimed the surplus proceeds, amounting to £105, as realty. An application was made on his behalf, ex parte, to Ross, J., for payment to him of the said proceeds. The application was adjourned by the learned Judge, who required the next-of-kin of Thomas Stinson to be represented on the hearing of the adjourned application, no personal representative to Thomas Stinson having then been raised.

Hewitt R. Poole, for the heir-at-law:—

Section 64 of the Landed Estates Court Act enacts that the surplus purchase-money remaining after payment of costs, incumbrances, and charges, shall be paid to the owner; but here the money was not lodged till after the owner's death. In In re Hall's Estate (1) Monroe, J., following Scott v. Scott (2), decided that, in the case of the absolute order for sale of real estate, there is a conversion only of so much of the estate as may be necessary for the payment of incumbrances, and that the surplus purchasemoney goes to the heir-at-law: In re Ross's Estate (3). In In re Owen's Estate (4) Palles, C.B. (at p. 240), expresses the opinion that in the case of an estate which is more than sufficient to satisfy incumbrances, and over which a receiver has been appointed, it would be against right that the Court should, against the will of the owner, sell more of the estate than was necessary for the purpose of paying off the incumbrances. In Richardson v. Nixon (5) Lord St. Leonards held that the residue of the purchase-money, after paying off the mortgage, remained real estate. The contrary was laid down by Jessel, M.R., in Steed v. Preece (6); but in Foster v. Foster (7) Jessel, M.R., explained that all he decided in Steed v. Preece (6) was that if a conversion is rightfully made, whether by the Court or a trustee, all the consequences of conversion must follow, if there be no equity in favour of the heir or anyone else for reconversion. In Jermy v. Preston (8) Vice-Chancellor Shadwell held that, an excessive sale having been made under a decree for raising a sum, the surplus retained the character of real estate. In Cooke v. Dealey (9) Romilly, M.R., held that the surplus sum remaining after a sale in an administration suit was of the character of real estate, and passed to the heir. In Hyett v. Mekin (10) the Court sold the estate on the application

of all the parties interested. There was, therefore, no equity for reconversion. In re Grange (1) was a sale by a mortgagee of the whole under the mortgagee's power of sale. That differs from a sale by incumbrancers, who sell only so much as may be necessary to pay the incumbrances.

Chadwick, for the next-of-kin of Thomas Stinson:—

Where, as in the present case, the claimants are equally volunteers, they must take the property as it stands, and there is no equity in favour of either the heir-at-law or the personal representative. It is admitted that the land was actually turned into money by the absolute order for sale: In re Nixon's Estate (2); In re Hall's Estate (3). The estate was rightfully sold by the Court: Flanagan v. Flanagan (4). It is immaterial whether the Court sells too much or not. If it sells, the proceeds are personalty: Steed v. Preece (5); Hyett v. Mekin (6); Hartley v. Pendarves (7); In re Grange (1); Burgess v. Booth (8). Section 64 of the Landed Estates Court Act provides that the surplus proceeds of the sale of lands which are the absolute property of the owner shall be paid to him as money.

Hewitt R. Poole, for the heir-at-law:—

Chadwick, for the next-of-kin of Thomas Stinson:—

Ross, J.:—

In this case the owner, at the time of the filing of the incumbrancer's petition, was entitled to an estate in fee-simple. The lands have been sold, the incumbrances paid off, and a sum remains in Court to the credit of the matter representing the surplus of...