Waddell v Harshaw

JudgeM. R.
Judgment Date18 May 1905
CourtCourt of Appeal (Ireland)
Date18 May 1905

M. R.












Limitations, Statute of — Legacy — Accruer of right — Death of testator — 37 & 38 Vict. c. 51, s. 8.

In an action to recover a legacy the period of limitation is twelve years from the death of the testator, not from the expiration of one year after his death.

Decision of the Master of the Rolls contra reversed in the Court of Appeal.

By his will, dated the 3rd October, 1887, Andrew Harshaw bequeathed a legacy of £150 to his daughter, Mary Harshaw, £100 to his son, James, and £50 to his daughter, Eleanor Waddell; and he appointed his sons, Andrew and James, executors, and he charged these legacies on the two farms he held on the townland of Ballynafern, in the county of Down. He bequeathed one of his farms to his son, Andrew Harshaw, and the other to his grandson, Andrew (the son of his son, Joseph, who had predeceased him).

The testator died on the 6th February, 1891, and probate was granted to his son, Andrew Harshaw, the younger, on the 18th May, 1892. Andrew Harshaw, the younger, died on the 2nd May, 1903, having by his will, dated the 22nd May, 1900, left his farm to his nephew, John Harshaw, and he appointed his two nephews, Andrew and John Harshaw, executors, to whom probate was granted on the 11th November, 1903.

Mary Harshaw, one of the legatees, died on the 30th April, 1900, intestate, and on the 25th January, 1900, letters of administration to her personal estate were granted to Eleanor Waddell.

None of the legacies had been paid, and on the 29th January, 1904, an action was brought by Eleanor Waddell and James Harshaw against Andrew and John Harshaw for payment of the legacies. The defendants pleaded the Statute of Limitations.

John Gordon, K.C., and M'Ilroy, for the plaintiffs.

S. L. Brown, K.C., and F. N. Greer, for the defendants.

The Master of the Rolls:—

The question which I have now to decide is one which determines the right to administer the estate of Andrew Harshaw, and depends on whether or not a legatee under the will is barred by the Statute of Limitations. The fact, as regards the legacy, is that the testator's death occurred more than twelve years before the issue of the writ, and less than thirteen.

The Statutes of Limitation applicable to the question of this legacy are—(1), 3 & 4 Wm. 4, c. 27, s. 40, and that provides: “After the said thirty-first day of December, 1833” (that is more than seventy-one years ago), “no action, or suit, or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment,” and so forth.

That section is repealed, and in lieu thereof was enacted (2), the 37 & 38 Vict. c. 57, s. 8, which for present purposes, and so far as a legacy is concerned, is identical with the previous provision, except for the substitution of twelve for twenty years. Sect. 8 provides—“No action, or suit, or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same.”

The question here, in an action to recover a legacy, is whether the executor's year is to be regarded or disregarded; for the action is brought more than twelve years from the death of testator, but less than thirteen, i.e., within twelve years from the expiration of one year from the death. This question is res nova.

Apart from authority—and direct authority there is none—I should deem it, if not clear, at least the sound view, that in the computation of time the executor's year should be excluded, because till the end of that year the legatee has no power to compel payment of his legacy. Of course he could receive it at any time, but not as of right before that time. The executor may pay legacies if he see fit before that time, but is not compellable to do so—in other words, the legatee has no present right to recover the same, to raise it, to call it in, till the year be out.

The word used in the statutes is not “recover,” but “receive.” The real question is, does this make any difference? Apart from judicial utterances, I should think that it did not. The words are not “the capacity to receive,” or the “ability,” or any other word than the right, which in my opinion is the dominant governing word—What is a “right to receive” a legacy? This right is spoken of as accruing at a particular time. It cannot therefore mean mere ability to accept something coming from the grace of an executor or anyone else—for every human being has that sort of receptive capacity from infancy to death—and in the case of a legatee, he can “give a discharge for or release of it,” whether it is payable or not, e.g., even if there be not assets sufficient to meet it (supposing it to be once paid to him); or if it were a reversionary legacy, the legatee could of course receive it if offered before the reversion fell in, and give a valid discharge. And I think that, in plain ordinary English, a “right” to receive a legacy, more particularly a “present right” to receive it, means a great deal more than a right to accept it if offered. It ordinarily means a right to compel payment of it, and nothing short of that.

What is meant by “a right to call for a transfer” of stock, &c., in the ordinary language of a vesting order under the Trustee Acts? It means not merely a right to ask for a transfer (which needs no sanction), but connotes the consequent right to compel it. And so, in the absence of authority, I should hold, without doubt, that a right to claim, or a right to demand in a legal document, and a fortiori a right to receive, means more than an authority to accept. I should, if left to myself, think it must mean a right to recover by legal means.

But though there is no decision actually in point, there are three cases, and three only, which have a bearing on the question. These are Earle v. Bellingham (No. 2) (1); Re Johnson; Sly v. Blake (2); and Hornsey Local Board v. Monarch Investment Society (3).

Earle v. Bellingham (1) was the case of a legacy payable out of a reversion, and the decision was that interest ran only from the time the reversion fell in. But the judgment clearly shows what the opinion of Lord Romilly was on the question before me. He says (p. 449)—“I think that the Statute of Limitations places the plaintiff in a difficulty from which there is no possibility of escaping. Time runs from the period at which the right to receive the legacy accrued. The right to a legacy, and the right to receive it, is quite a different thing. The right to a legacy ordinarily accrues on the death of the testator, but the right to receive it does not arise until twelve months after his death. There are many cases in which legacies are vested, but no right to receive them exists until a future period, as at twenty-one, or marriage; and, unless there is a particular relation between the testator and legatee, no interest is payable in the meantime, interest being payable only from the time the legacy is receivable. The statute is a bar to the recovery of a legacy twenty years ‘after a present right to receive the same shall have accrued’; and my opinion is, that the period from which interest is payable and from which the statute runs is identical, namely, the time when the right to receive accrues. It would be unfortunate if it were established, that these legatees had a present right to receive their legacies twelve months after the death of the testatrix, for that would make the statute applicable to this case. My opinion is that the payment of the legacies is postponed until the reversion fell in, and that interest does not run until the legacies were payable, which was on the death of the widow.”

In re Johnson; Sly v. Blake (2), conversant not with a legacy, but with a distributive share in intestacy, has less bearing upon the present question, but has to be considered as the decision of a very careful and learned Judge. After deciding that the

23 & 24 Vict. c. 38, section 13, applied retrospectively, his Lordship says:—“The second question turns on the meaning of the words ‘present right to receive the same.’ The intestate Johnson died in 1848, and the defendants contend that the plaintiff's right was barred at the end of twenty years from his death, or at all events of twenty-one years, the additional year being conceded in conformity with the general rule that an executor or administrator is allowed in an administration case one year to complete the administration of the estate. In the absence of any special circumstances relating to the getting in of an intestate's estate, I think that the latter contention is correct, and that the plaintiff's claim for the general administration of the intestate's estate is barred. The decree of 1855 obtained by Ann Johnson against the administrator was not prosecuted after 1856. Regard being had to the long lapse of time, more than a quarter of a century, and to the death of T. C. Johnson, the younger, in the interval, it would not be a right exercise of the discretion which is vested in the Court to allow that suit to be revived. But I am of opinion that the claims of the plaintiff in her own right, and as administratrix of her deceased sister, are not...

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