The commencement of the limitation period against a beneficiary ran from the time when he acquired a present right to receive the inheritance. Time ran from the end of the executor’s year when the interest fell into possession.
Chitty J said: ‘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
. . But I am of the opinion that the claims of the Plaintiff in her own right and as administratrix of her deceased sister are not barred in reference to such of the assets as came into the possession of T.C. Johnson the administrator, within twenty years before the 11th of April 1883, the day on which the writ was issued. . The right to a legacy and the right to receive a legacy are, (as was pointed out by Lord Romilly in Earle v. Bellingham [24 Beav. 448]), obviously distinct rights. And the observation applies equally to a share of the residue of an intestate’s estate. But the enactments speak not merely of a right to receive, but, emphatically, of a present right to receive. The next of kin have no present right to receive from the administrator a reversionary asset belonging to the intestate, before it falls into possession and is possessed by him, nor where he is compelled to take proceedings to recover an outstanding asset, before he recovers it or obtains possession of it.’
Judges:
Chitty J
Citations:
(1855) 29 ChD
Jurisdiction:
England and Wales
Cited by:
Applied – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 26 November 2022; Ref: scu.223967