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Present: Garvin and Dalton JJ.
DONA ANA v. ANDRIS FERNANDO et al.
216—D. O. (Inly.) Kalutara, 1,116.
Costs—Administration suit—Contest—Each party to bear his costs—Costpayable to Proctors out of the estate.
Where in a testamentary ease a contest aroso between theadministratrix and the heirs with regard to the regularity of theaccounts filed and the Court, in making its order, direoted thatthere should be no costs of the inquiry,—
Held, that the administratrix was entitled to have the costs dueto the Prootor who appeared for her at the inquiry paid out of theestate.
y^PPEAL from an order of the District Judge of Kalutara.
Amaresekem, for petitioner, appellant.
Ranawake (with Molligoda), for respondent.
February 8,1929. Gabvw J.—
The record seems to indicate that the administratrix of this estateapplied to the Court for an order authorizing the payment of Rs. 441out of the funds to the credit of the estate to her Prootor. It wouldseem that at the filing of the intermediate acoounts, and also whenthe final acoounts were filed, certain heirs impeached the accountsin certain particulars. The costs referred to earlier were incurredby the administratrix in the course of these contests. Each of thecontests terminated in an order in which the Court gave certaindirections for the modification of the accounts and concluded in thecase of the intermediate order with the following direction in regardto.the contests: “ there should be no costs of this inquiry. ” Simi-larly in regard to the contests which arose at the stage of the finalaccount the Judge stated in regard to the costs: “ I think thereshould be no order as to costs of this inquiry." The applicationof the administratrix in this matter was resisted upon the groundthat these two orders were in effect a direction that the costs ofthese inquiries were to be paid by the administratrix personally.No such direction was given expressly, and it seems to me that theorders matte by the two Judges in the two inquiries referred to bearthe interpretation which they bear in any other case, namely, thatneither of the parties was entitled to claim that these costs be paidby the opposite party. This left each of the parties to this contest
Dona Anav. Andris' Fernando
to bear his own costs. The District Judge has made no fartherorder, and there is no justification, in my opinion, for giving theorders he has made any interpretation other than the one I havereferred to. I think therefore that the order of the learned DistrictJudge disallowing the application of the administratrix upon the-ground that she has been ordered to pay these costs personallymust be reversed. The costs properly incurred on account of thesecontests and payable by law to the Proctor must be paid out of theestate. The. appellant is also entitled to the costs of this appeal.
Dalton J.—I agree.
DONA ANA v. ANDRIS FERNANDO et al