( 268 )
DONA MARIA v. DON PAULES DE SILVA.
D. C., Colombo, 715.
Husband and wife—Marriage in community—Death of husband—Right of
widow to one-half of the property held in community—Necessity ofadministering whoir. estate.
Per Burnside, C.J. (Lawrie, J., dissenting).—Though by theRoman-Dutch Law the surviving wife acquires a right to one-half ofthe property held in community during the marriage, yet convenienceand the necessity of avoiding multiplicity of suits demand that thewhole estate of the deceased should, in the first instance, vest in theadministratrix for disposal among the persons legally entitled to specificshares therein.
HE facts of the case are as follows : Eusebias Perera and Dona<
Maria having been married in community in 1866, the formertook on lease on the 23rd March, 1882, an undivided half share ofan allotment of land containing plumbago pits from one Tikira,who was entitled to that share, while the other half belonged tothe defendant. The lease was to take effect from the 17th January,1885, and was to run for eight years from that date. EusebiasPerera died on 16th December, 1884, and his widow, Dona Maria,took administration to the whole of the estate on 3rd September,1885, and raised the present action praying (1) that she bedeclared entitled to a moiety of the value of the net produce ofplumbago won and appropriated by the defendant from the pitson the land from the 17th January, 1885, to the institution ofthe plaint (21st January, 1891); (2) for an account of the plumbagodug out and quarried from the said pits, and of all expenditure inrespect thereof ; and (3) for interest and costs.
In his answer, the defendant pleaded inter alia that on thedeath of the plaintiff’s husband one-half of his leasehold (whichwas an undivided half share) vested in her as his widow, and the(other half on their children, and that the grant of administrationto the plaintiff was in respect of the children’s half only,inasmuch as the plaintiff’s half had already vested in her on thedeath of her husband, when the community of property wasdetermined; that plaintiff therefore, as administratrix, couldonly call upon the defendant to account for one-fourth of the netproceeds of the plumbago, and not for one-half as in the plaintset forth.
The learned District Judge (Mr. Owen Morgan) overruled thedefendant’s objection in the following judgment:—
“ The question is whether the plaintiff, in taking out adminis-“ tration to her deceased husband’s estate, was bound to deal with“ the whole of the estate or only half. It is clear that on the death
( 269 )
“ of plaintiffs husband the community of property ceased, and half 1893.
“ the estate devolved by operation of law on the plaintiff, as the ■fMr*tarV 14-“ deceased’s widow. Bat it is to be noted that the whole estate is Bubhside,
“ liable for the debts contracted daring the subsistence of the com*
“ munity, and if administration is not taken to the whole estate, it“would be impossible to pay and satisfy such debts from the“whole estate.
“ The children are entitled, without any distinction, to a share“ equal to that of the widow’s, and if administration is taken to“ only one-half of the estate, all the debts contracted during the“ marriage will have to be paid out of the children’s share, and“ that share will be greatly diminished.
“ Again, it is difficult to divide the estate and allot one-half to“ the widow till the value of the whole estate is ascertained. This“ can only be done after payment of all the debts due by the estate,
“ and the recovery of all moneys and other property from the“debtors of the estate.
“ I am of opinion, that though one-half of the estate devolved“ on the widow on the death of her husband, yet that that half“ cannot be divided or separated and given to the widow till the“ whole estate is administered.
“ The objection raised by the defendant is over-ruled with“ costs.”
The defendant appealed.
Layard, A.-G., with Wendt, for appellant.
Domhorst, with De Saram, for respondent.
I5i.ii February, 1893. BURNSIDE, C.J.—
In my opinion the judgment of the learned District Judgeof Colombo is eminently sound, and should be affirmed. Un-doubtedly by the Roman-Dutch Law the surviving wife acquireda right to one-half of the property held in community during themarriage, but this general proposition is materially qualified bythe fact that the surviving wife’s estate thus acquired is liable inall respects to the payments of the debts of the husband, as is thehusband’s half of it; and also there was this further qualificationthat, in case the property was naturally indivisible, it would be tothe value only of such property to which the widow’s right ex-tended. We have already held that the right of the executor to theimmovable property of the deceased is, for the purpose ofadministration, co-extensive with his right to personal propertyfor the payment of debts. The Roman-Dutch Law, as a merematter of procedure, rendered the wife liable to be sued inrespect of the liability of her share of the intestate estate. Our
( 270 )
1893. statute law has eografted on the Roman-Dutch Law the law ofFrbrvn‘-y u. administration, providing for the appointment of administratorsL wRiK, j. lor the purpose of Becnring a responsible person liable at law forthe due disposal qf intestates’ estates, both among creditors andnext of kin ; and it seems to me that we are only walking abreastwith the law as it now exists, in holding that the whole estate ofthe deceased should, in the first instance, veBt in the administratorfor disposal among tho persons legally entitled to individualshares of it. It certainly would be a gross anomaly if theadministrator, although subject to be sued for the deceased'sdebts. could not realize the property liable for them. Looking atthe decision primce impressionis, its convenience, the avoidanceof multiplicity of suits and divided administration, which theEnglish law abhors, I cannot doubt that the ruling of the DistrictJudge is sound, and should be accepted.
This very case proves the soundness of the position. Thewidow is always preferred in granting administration, and if thecontention of the defendant were allowed to prevail, the propertyof her intestate would be subjected to the expense of severalsuits by and against the same individual in different capacities—the wife as surviving spouse and the wife as administratrix.This alone would seem to be a good reason to reject the defend-ant's contention. . It is not therefore necessary to refer to thecontention of the plaintiff that, even if the defendant’s objectionwere well founded, it would only be matter of misjoinder to berectified by amendment.
The judgment is affirmed with costs in both Courts.
I would sustain the order in the special circumstances of thecase.
The plaintiff obtained administration of the intestate estateof her deceased husband, Eusebias Perera. I understand that itwas stated by the widow, in the affidavit of the extent and value ofthe estate, and in the appraisement and in the inventory, thatthe deceased was the Bole lessee under a lease which did notcommence until some months after his death. It is by no meanscertain that this lease in favour of a man and his heirs, executors,administrators, and assigns, of which he had no enjoyment orpossession during his life, fell under the community. His widowhas not chosen to claim any rights under it, and in the absence ofany other claim it seems to me that the right of the adminis-tratrix of the lessee to administer it is undoubted. I dissent fromthe general proposition that the administrator of a deceased
( 271 )
spouse who was married in community (the other spousesurviving) has right to administer the whole estate which was incommunion. On the death of either spouse the other has right tohalf of the property lately the subject of the marriage community.All that the heirs or legatees of the deceased have right to is theone-half to which the deceased was entitled. The execntor ofone spouse cannot realize the whole property for the purpose ofpaying legacies or for distribution among the heirs of the deceased;and if an executor cannot do so, neither can an administrator.
In my opinion, it is well-fixed law that the administrator orexecutor can administer and realize only such estate as the deceasedhad testing powers over. Here, however, we have to deal with anestate which was not in possession of the spouses at the dateof the death, an estate which the surviving spouse who has takenout administration has been content to treat as the exclusiveproperty of her deceased husband. I shall not decide that thewidow has right to half when she herself does not claim it.I regard her dealing with the interest created by the lease aspractically a renunciation of any right which she had or might haveclaimed in it, because she haB deliberately chosen to treat it as herhusband’s property.
1 see no reason to disturb the order.
February 14.IiAwmis, J.