( 196 )
1809-SOYS A v. WEEEASURTYA.
July 24 and
Au<%%16’D. C., Oalle, 4,775.
1900. Dowry from father to daughter—Gift to her by deed in pursuance of last will ofOctober 15.parents—Merger of gift in inheritance—Insolvency of father—Power of
administrator to sell immovable property for debt of testator—Irregularityof order of Court granting leave to sell—Right of creditors of the father to-sell the land gifted, for payment of his debts.
W and G made a joint will in 1887, in which, after making certain:bequests, they directed that " the immovable property belonging to theirestate should devolve on their daughter 3. ” After G’s death, W madea deed of gift in favour of 3, conveying certain lands which the-testators had intended to give her, but the donor was to remain inpossession of them till his death, and he reserved to himself the power ofselling them, should circumstances compel him. W died in 1893, withoutrevoking the will or exercising the power of sale under the deed of gift.
S, having been appointed administrator of W as regards the properties-acquired by W afterC's death, obtained the leave of Courtto sellthe
intestate’s property for the payment of his debts, but the order grantingthe leave did not specify the property to be sold. S sold to A a part ofthe property gifted by W to J.
In an action brought by A’s vendors against 3 and her husband who-were in possession of the land in question,—
Held, per Bonser, C.J.—That the sale by the administrator to theplaintiff's vendors could not be supported, as the order granting the-leave to sell did notspecify the property to be sold, andthe salewas-
grossly mismanaged by the administrator.
The administrator put up Kittanduwebedde to public auction on 2ndJune, .1894, but so grossly was the sale mismanaged that, although the^.property had been valued in the administrator's inventory at Bs. 10,000,.he allowed it to be sold for Bs. 650. A conveyance was executed bythe administrator to the purchasers, who were relations of his, on the29th of June, and they on the 1st -September following sold and con-veyed the property to plaintiff, who is a connection by marriage of theadministrator, for Bs. 1,000. The plaintiff himself in his plaint values-the property at Bs. 5,000. Such a transaction as this should be veryclosely scrutinized, and ought not to be supported except on thestrictest proof that it is in every respect in accordance with law; andno intendment shouldbe made in its favour. I venturetothinkthat
■ it would be a seriousblot on the administration of justiceinthis Island
if we are obliged to uphold this transaction.
Held, also (Moncrhff, J., and Browne, A.J., disagreeing), .that so long,as the deed of gift stood unreduced by a decree in a Paulian action, theadministrator could not convey title to A; and that the only persons whocould sue to recover property given in dowry are the creditors of the donor.
Held further, that a creditor could not sue a daughter, who badabstained from her father’s inheritance, to make her dowry liable to payher father's debts, except when the dowry deed was made in fraud ofcreditors, and that there was no evidence to show that the daughter inthe present case had accepted her father's inheritance.
It is donbtful whether under our law it is possible to accept aninheritance in the sense in which that phrase is used in the Boman andRoman-Dutch Law seeing that the English Law of Executors and
( 197 )
Administrators prevails in tbs island, and the Roman-Dutch Law of 1899.inheritance so far as it is inconsistent with that law is no longer July 24 anfin force.August 16,
Per Moscrbu'F, J.—When a daughter accepts her father's successionand the estate of her father is insufficient to meet his debts, propertygiven to her by way of dower by her father in his lifetime is available ^)ctoier 15-for administration.
It is true the remedy belongs tothe creditors,bntthe administrator
who was sued by them was justified in admitting and acting on their claim.
Bbownb, A.J.—Whether .the giftis consideredasmergedin the
inheritance or as invalid, it is open to the administrator, when the doneetwompg liable to be called on to surrender the asset, to* sue for it; or ifa buyer is willing to undertake the burden andcostof thenecessary
litigation, to sell the asset to suchperson and leavehim tovindicate
the asset, as the plaintiff has done in the present case.
HIS was an action rei vindicatio. In appeal, JusticesWithers and Browse affirmed the decree of the Court
below in favour of the plaintiff. The defendants brought upthe case in review before Bonser, C.J., and Moncreiff, J., andBrowse, A.J., preparatory to an appeal to the Privy Council.
The facts of the case are as follows: —
One A. T. Weerasuriya and his wife Gimara Hamine madea joint will on 4th January, 1887, in which, after referring tothe settlements already made on their two married, daughters,they directed that the immovable property belonging to theirestate, including high and low lands, gardens, houses, &c., shoulddevolve on their unmarried daughter Jane Marie. The testatrixdied on 9th August, 1888. The testator acquired title to the lqnd' in dispute, called Kittanduwebedde, consisting of about 29 acres,after the death of the testatrix by deed dated 16th February, 1889,He died on 1st July, 1893, without having revoked his will orrenounced any benefit under it. Letters of administration weregranted to one Samaravira on 23rd February, 1894 (in Testa-mentary Case No. 3,028), in respect of properly acquired by thetestator after the testatrix’s death, and which did not form partof the common estate disposed of by the joint will.
About three years after the death of the testatrix the testatorexecuted a deed of gift dated 21st November, 1891, in favour ofhis daughter Jane, which contained the following recital: —
“ Whereas my daughter Jane, &c., was married to, &c., and at" the said marriage, according to native custom, no dowry ur" landed property was given, although in the lifetime of my“ beloved wife her desire was that certain properties appearing" in the schedule hereafter annexed should be given; now, as I am'■ desirous of fulfilling her wish, I hereby, by a formal deed," convey the premises appearing in the schedule aforesaid; ” and
( 198 )
Jtdy 24 andAvgust 16,and
then the donor proceeded to “ convey and assure as a douation.
“ inter vivos,” to his daughter Jane “ all the premises appearing in“ the schedule hereafter mentioned, which are valued at Rs. 10,000,
“ to have and to hold the same, ” &c.
The schedule included portions of two gardens and “ the Bright-" sun estate wherein I reside, together with all the buildings, soil,
“ plantation, low and high lands, and fields thereof, situated at" Hikkaduwa, Gonapennewella, and Ratgama Totawila, in the" Wellaiboda pattu of Galle; bounded on the north, &c.” Thedonor reserved to himself the right of possessing the propertiestill his death and of selling them if circumstances compelled him.
By deed dated 29th June, 1894, Samaravira, the administrator,who had the leave of Court to sell the intestate’s property for thepayment of his debts, sold Kittanduwebedde to Arthur Weera-suriya and Abanchia, and they sold it to Peter 'Soysa on 1stSeptember, 1894.
Peter .Soysa came into Court on the 3rd September, 1897, andsued for the recovery of Kittanduwebedde, which he averredwas in the unlawful possession of Jane Weerasuriya and herhusband, the first and second defendants.
It was contended for the defence that this property was includedin the . deed of gift and formed, part of Brightsun estate, and thatthe administrator could not convey it over again to the plaintiff’svendors.
The District Judge (Mr. F. J. de Livera) entered judgment forplaintiff in these terms: —
• “ The question now arising for decision is, who has a bettertitle, plaintiff as purchaser under the administrator, or firstdefendant as donee under her father, the testator. In the absenceof anything like fraud in the sale of the land to plaintiff’svendors, it seems to me plaintiff has a superior title. No fraudon the part of the administrator has been proved.
“ Let a declaration of title be entered in plaintiff’s favour, withcosts, subject to the payment of any compensation which theplaintiff may be ordered to pay to the defendants for any improvementsmade by the defendants.”
The case came on for argument before Justices Withers andBrowne on the 24th July, 1899.
Wendt (with Van Langenberg and Schneider), for defendants,appellant,
Domhorst, for plaintiff, respondent.
Cur. adv. wit.
( 1»9 )
16th August, J899. Withers, J. (after setting forth the facts of 1889‘the case and considering the question of the meets and bounds ofBrightsun estate), said:—and
If, as a fact, Kittanduwebedde is situate within the limits of 0cto6er^5
what in the dotal deed is described as Brightsun estate, that
seems to me to settle the question. If it is not situate withinthose limits, then it was never conveyed to the first defendant.
If there is any doubt on this point the point must be settled, afterfurther inquiry. But, if it is situate within those limits, whyshould not the settler call it Brightsun estate, and give it to hisdaughter ? It was his at the time to give. The document, to mymind, is quite free from doubt. The schedule is incorporated Inthe conveyance, and the description in the schedule is as clear aswords can make it.
If then the testator disposed of Kittanduwebedde in his life-time, it formed no part- of his estate which the administratorcould deal with, unless the testator’s assets were insufficient to-satisfy the creditors of his estate. I thought there was room forargument that the donee was estopped by his conduct fromsaying that the administrator had no right to sell the property,and I said so. But this point was not taken in the Court below,and I do not think that any estoppel has been made out. To-be effective, indeed, it should have been pleaded or settled asan issue.
The ground taken by the District Judge is that the voluntarygift must yield to the official sale.
This raises an important and difficult question. Is a dower bya father to his child in the same category as property acquiredby a lucrative title, and such as must be given up to creditors ofan insolvent estate ? I think not, unless the daughter succeedsto her father’s estate.
Voet, 23, 3, 15, says, that it is the duty of parents to dower theirchildren. The father in giving a dowry to his daughter wasfulfilling a recognized obligation.
However, in lib. 42,. t. 8, § 6, the same author says, that adaughter who abstains from taking up her father’s estate cannotbe forced to give up her dower to her father’s creditors, unless itbe proved that he dowered her in fraud of his creditors. But itseems that the first defendant did take under the joint will ofber parents what formed the common estate at the date of themother’s death. This included Brightsun estate, as^ distinguished;from Kittanduwebedde. Therefore, in my opinion, Kittanduwe-bedde was available for her father's separate estate creditors, ifbis other assets were not sufficient to satisfy their claims. That17-
( 200 )
was one of the issues expressed in different terms, which the
July 24 and District Judge has not decided.
and If Kittanduwebedde had to be sold for Mr. Weerasuriya’s
debts, then I think the judgment should be affirmed to thatOctobers. extent.
Withers, J. But another important issue was settled at the trial, whichthe District Judge has not determined,' and that is this. If itis held that plaintiff is entitled to the land, are defendantsentitled to compensation, and, if so, how much? This point wasnot discussed at the argument, and I think we ought to hearcounsel on that point.
Since the above was written, we have had the advantage of !hearing further argument on the proposition of Roman-DutchLaw to which I have referred above. Assuming the propositionto be true, it was argued by Mr. Wendt that the widower took oldBrightsun estate as it was in the joint will, and made a presentof it by his dotal deed to his daughter. Hence, it must beregarded as a gift, and not as a devise, and therefore not avail-able for either the creditors of the joint estate or the creditorsof Weerasuriya’s separate estate, unless it can be shown, whichhas not £>een shown, that the dotal deed was made in fraudof creditors. This argument’ was met by Mr. Domhorst in this,,way. He contended that, as Weerasuriva took the benefit ofa life interest in the devises made by the. joint will, and con-finned that benefit in his dotal deed, he could not affect theoperation or the joint will by giving the devises to his daughter,eubject to his life interest in those devises. I prefer to considerthe acceptance of the gift of what remained of the parentalcommon estate as' an acceptance by the daughter of the benefitsof her parents’ joint will.
I think we must take it that the first defendant has acceptedher inheritance under the joint will, and that, unless otherreasons are given why she should not yield Kittanduwebedde forthe benefit of her father’s separate estate creditors, the plaintiff’spurchase must be assured to him.
It was, however, argued that the sale by the administrator wasnot valid and effectual,because ithadnot beenmade withthe
leave of the Court, or rather undertheconditionsimposedbythe
Court when it sanctionedthe sale oftheintestate’spropertyforthe
benefit of the intestate’screditors.Theconditionimposedbythe
Court was that thirty days’ notice should be given to the heirsbefore any particular property was sold. It would appear thatthe administrator did not comply with this condition in the firstinstance, for on reference to the testamentary proceedings it
( 201 )
will beseenthaton the 24th April, 1894, the then DistrictI80®*
Judge of Galle “ discharged the notice," as it was insufficient.
But thesale of this property was re-advertised on the 28th May,«*"«*
and Imustassume, unless the contrary is shown, thatl80®*
due notice was given by the administrator in compliance with 0ctober 1S‘the orders of the District Judge.. The contrary not having been Withbbs, J.shown, we must conclude that the sale in June, – 1894, was inorder.
Then it was argued that there was no proof of the necessityfor thesale,butthe Court below having given leave to the
administrator to sell the property of the deceased Weerasuriya,it must be taken for granted that the Court was satisfied of thenecessity for a sale.
There being no material for deciding whether the defendantsare entitled to retain Kittanduwebedde until their impensas havebeen repaid them, they should have an opportunity of adducingevidence on the fifth issue made by Mr. Van Langenberg, andaccepted by the Court below, if they so desire it. If they donot desire to proffer on this issue, the judgment will be affirmed.
The case will go back to the Court below with this intimation.
Throughout the argument of this appeal before us, it appearedto me that there were two principles which we should seekseverally to guard in their fullest effect, and, if they conflictedk toseek, if possible, to harmonize. One was that the intention of thetestators and especially the testatrix made at the date of their willwhen their solvency was unquestionable should be carried intoeffect to ensure to defendant a benefit equal to that which hersisters had been given. The other was to see the creditors of thetestator of later date paid to the full their claims against his estate.
I desired to regard the joint will, under which the husband tookbenefit, as a fixed settlement upon the defendant of the capitalof all her parents’ estate at her mother’s death, and that thecreditors should not be allowed to resort against it, except to theextent of what might be found to be extant at his death of the lifeinterest of the father therein. But it was only just to the creditorsthat all his sole estate of his widowerhood should pay its liabilitiesere it was applied to purposes of generosity.
It might be that the doctrines laid down in 16,886, D. C., Batti-caloa (Rdmandfhan, 1875, 69), if carried out. to their full extent,might benefit the defendant to the prejudice of those creditors, ifit were shown that the father was solvent when he donated any of
( 202 )
189?. Ms after-acquired property to defendant ere he incurred the lia-kilitiea to hid' creditors. But when any such question should ariseand ’ between the heir or donee and the creditors, I would be disposed
to regard the onus of proof to be on the former, for though the
October 15. onus of proving fraud in the gift lies on those who assert it, theBrowne, a.J paramount principle should be held to be that of the necessity fora man’s being just, before he was generous. And granted that herethe dates of the incurring of the liabilities proved was subsequentto that of the gift deed, I consider it not impossible that thedeficiency of the estate thereby evidenced may have had its originin the acquirement or the development of the after-acquiredproperty, and so to be properly chargeable against it till the doneeshould prove the contrary.
In the present instance, we have to consider the contention onlyin regard to such after-acquired property of the intestate estate ofthe father, and I, therefore, agree in the order proposed.
Preparatory to the judgment thus pronounced by the SupremeCourt being taken in appeal to the Privy Council, the defendantsbrought up the case in review before the Collective Court.
In review, H. A. Jayawardena appeared for the appellant.Samjjayo and Perns, for respondent.
Cur. adv. vult.
15th October, 1900. Bonser, C.J.—
This is an action rei vindicaiio, pure and simple, The plaintiffseeks to recover, as being the true owner thereof, a piece of landknown as Kittanduwebedde, of which the defendants are inpossession. In order to succeed, he must prove that the legaltitle is in himself.
It is common ground that this property belonged to one A. T.Weerasuriya, who died on 1st July, 1893. He had, with his wifewho predeceased him, and with whom he was married incommunity, made a joint will of the common property. Afterher death he acquired other property. As he died intestate asto the after-acquired property, administration was taken out tohis estate by the executor of the joint will.
It appears that the intestate left some debts, and the adminis-trator obtained the leave of the District Court of Galle to “ realize“ the amount of Ks. 2,852.72, the liabilities of the deceased, and the“ sum of Its. 1,742.29. being the amount of certain disbursements“ made and debts incurred by the administrator for and on behalf“ of the estate by sale of so much of the estate property as might“ be necessary to meet the said amount.”
( 208 )
It is the practice in this Island to insert in grants of adminis- 1898.tration a clause forbidding the administrator to sell immovableproperty without the leave of the Court. It would appear thatan&
the order granting leave in the present case was irregular, inas- 1900.much as it did not specify the property to be sold.October 15.
The administrator put up Kittanduwebedde to public auction Bonser, C.J.on 2nd June, 1894, but so grossly was the sale mismanaged, that,although the property had been valued in the administrator’sinventory at Rs. 10,000, he allowed it to be sold for Rs. 650. Aconveyance was executed by the administrator to' the purchasers,who were relations of his, on the 29th of June, and they on the1st September following sold and conveyed the property toplaintiff, who is a connection by marriage of the administrator,for Rs. 1,000. The plaintiff himself in his plaint values theproperty at Rs. 5,000. Such a transaction as this should be veryclosely scrutinized, and ought not to be supported except on thestrictest proof that it is in every respect in accordance with law;and no intendment should be made in its favour. 1 ventureto think that it would be a serious blot on the administrationof justice in this Island if we are obliged to uphold thistransaction.
The defendants who had entered into possession on Weera-suriya’s death refused to give up possession to the purchaser,who on the 3rd September, 1897, after a delay of three years,commenced this action.
The defendants are the daughter of the intestate and her hus-band. They rest their defence not only on their possession,,which they are entitled to keep until evicted by superior title,but they alleged that the legal title is in themselves.
By a deed of donation, dated the 21st November, 1891, theintestate gave this with other land to the defendants in dowry,and they duly accepted the donation. No question was raisedin the Court below or on either of the hearings in this Court asto the validity of the donation deed, but the plaintiff contendedthat, although the deed was a valid deed, the administrator couldmake a good title to this property, and that contention has beenupheld by the District Court, and this Court on appeal.
I must say, I do not agree with or perhaps understand the1reasons advanced by either Court in support of its decision.
The District Judge merely says this:“ The question now caris-
“ ing for decision is, who has a better title ? Plaintiff, who derives” his title by purchase from the administrator, or first defendant,
“ a volunteer claiming under a donation? In the absence of anv-" t.hing like fraud in the sale of the land to plaintiff’s vendors, it
( 204 )
*' seems plaintiff has a superior title. No fraud on the part of
JiAugu*t is* " administrator has been proved.”
ani It seems to me that this judgment is based on the assumptioni9°0.that, an administrator haspower todispose ofany property
cto er 15‘which was once his intestate’s, andwhich theintestatehas
Bouses, C.J. donated. Such an assumption is inconsistent with principleand authority alike.
But this Court on appeal, though affirming the judgment, didnot adopt this doctrine in its entirety. Withers, J., says:” The
” ground taken by the District Judge is that the voluntary gift” must yield to the official sale. This raises an important and” difficult question. Is a dower by a father to his child in the” same category as propertyacquired bya lucrativetitle, andsuch
” as must be given up tocreditors ofan insolvent estate ?T
” think not, unless the daughter succeeds to her father’s estate.
” Voet, S3, 3, 15, says, that it is the duty of parents to dower their“ children. The father, in giving a dowry to his daughter, was” fulfilling a recognized obligation. However, in lib. 42, t. 8, § 6.” the same author says, that a daughter who abstains from taking” up her father’s estate cannot be forced to give up her dower” to her father's creditors, unless it be proved that he dowered” her in fraud of his creditors. But it seems that the first" defendant did take under the joint will of her parents what" formed the common estate at the date of the mother’s death.” This included Brightsun estate as distinguished from Kittan-” duwebedde. Therefore, in my opinion, -Kittanduwebedde was” available for the father’s separate estate creditors, if his other” assets were not sufficient to satisfy their claims. If Kittan-■ " duwebedde had to be sold for Mr. Weerasuriya’s debts, then I” think the judgment should be affirmed to that extent.”
I must confess that I cannot follow this reasoning. The learnedJudge seems to forget that the only persons who could sue torecover the dowry are the creditors, as indeed is stated by Voetin the passage referred to. Voet is there discussing the ActioPauliana, which was the recognized form of action for creditorswho soughtto make’ property,whichhad beenfraudulently
alienated bytheirdebtor, available forpayment oftheir debts;
and he laysdownthe propositionthata creditor cannot sue a
daughter who has abstained from her father’s inheritance to makeher dowry liable to pay her father’s debts, except in the case wherethe dowry deed was made in fraud of creditors.
Of course, if she had accepted her father’s inheritance noquestion offraud would arise,for whether thedowry was
fraudulent or not, it, with all the rest of her property, would be
( 205 )
liable to her father's debts. But the only persons who could make 1399;
a claim would be the creditors, and they would have to get the deed June 24 and
of donation out of the w&v before they could seize the property.anrf
So long as the donation deed stands unreduced, the title is in theI90<).
I asked in vain for any authority for the proposition that an Boxser. C.J.administrator can in such a case convey the title as though thedeed had been reduced by a decree in a Paulian action, or eventhat ah administrator could institute such an action.
It will be noticed that Withers, J., speaks hypothetically, andthat the judgment is to be affirmed to a limited extent only, whichis not specified. But I venture to doubt whether it is proved thatthe daughter in this case “ took up her father’s estate.-' She tookand could take nothing but what the executor of the joint willallowed her to take, and if the joint estate were liable for thefather’s debts, she could get nothing till those debts were paid.
But it seems to me that it is doubtful whether under our law it ispossible to “ accept an inheritance ” in the sense in which thatphrase is used in the Roman and Roman-Dutch Law. It must beremembered that tbe English Law of Executors and Administrators.prevails in this Island, and that the Roman-Dutch Law ofInheritance, so far as it is inconsistent with that law, is no longerin force.
Then, a contention which had not been raised before wasraised at the hearing in review. The donation deed containedthe following clause:“ Should circumstances compel me, which
■" God forbid. I reserve to myself the power of disposing the said4‘ properties according to my wish.”
It was said that, inasmuch as the donor had power to appoi ithis property to himself, the Court would treat it as his property,and that it would descend on the administrator as assets. Andit. was pointed out that section 218 of the Civil Procedure Code-renders such property executable by a judgment-creditor asagainst a judgment debtor. But equity never aids . the non-execution of a power. The argument amounts to this, that theadministrator can exercise the power of disposing of the propertywhich the iutestate reserved to himself. No authority was cited 'in support of this contention, and I am unable to accede to it.
I cannot help thinking that, in this case, noth Courts lost sightof the fact that this was an action which can only succeed onproof of title in the plaintiff. It may be that the creditors of theintestate will be able successfully to impeaoh. the dowry deed inAn action brought for that purpose (see 2 Burge, p. Ho), but I amclearly of opinion that- it was not competent for the administrator
( 206 )
to treat this property as part of his intestate's estate, and that his^A^uttajt Sa^e an<* conveyance Passe^ no title, and that the appeal should'
and ’ be allowed. But as my brothers are of a different opinion the
judgment in review will be affirmed.
This claim is in respect of a property known as Kittauduwe-bedtle, part of the Brightsun estate, which the deceased A. T.Weerasuriya gave in dower- to his daughter by deed of gift dated21st November, 1891. Kittanduwe was property acquired by thedeceased after the death of his wife, whereas the remainder of theBrightsun estate had been dealt with in the joint and mutual willof himself and his wife, dated 4th January, 1887.
The defendants ground their title upon the deed of gift, and its.value and effect are intended to be put in question by the second,issue. Did the land vest in the administrator V
I have some doubts as to the validity of the deed of gift. Thedonor was to remain in possession for life, and the donee to take-possession after his death. The donor reserved to himself thepower of disposing of the estate according to his wish ” shouldcircumstances compel him.” Lastly, the donee was not to sell orotherwise encumber the property ‘‘so as to alienate it from myestate.”
Under this donation, the donee had no action against the 'donorto put her in possession. Moreover, the gift was revocablewhenever the donor should choose to think that circumstancescompelled him. There are certain exceptions to the rule thatdonations are irrevocable, but this case does not come within thenuI have some difficulty in regarding as a valid donation a giftwhich was revocable, which excluded delivery in the lifetime ofthe donor, and forbade the donee to sell or encumber the propertyso as to alienate it from the donor’s estate. The position of thefirst petitioner seems to me more that of a legatee than of a donee.
But, assume that the donation is valid. Can the property betaken to meet the debts of the deceased donor on a deficiency ofassets? To use the words of his own deed, it had not beenalienated from his estate. It was urged upon us that, even if thedonation was undeniable, the property was liable for the debts ofthe donor. A passage was quoted from Voet (42, 8, 6), fromwhich the following principle was deduced for our guidance,viz., that, when a daughter does not accept her father’s succession,the property given to her by way of dower cannot, after thefather’s death, be brought into the administration of his estate.
( 207 )
■unless the rest of the estate is insufficient to meet the debts of the
father, and it is proved that the dower was given in fraud•creditors.
0f June 24 andAugust 16,and
The exact proposition which we are asked to accept in this case is 1900,
■not stated, namely, that, when a daughter does accept her father’s
succession, and the estate of her father is insufficient to meet his Monoteuw,•debts, property given to her by way of dower by her father in hislifetime is available for administration.
But the chapter in Voet is only dealing with the Paulian action,which might be brought by creditors for fraudulent alienation ofthedebtor’s property, and it would have beenforeign tothe
subject in hand to pursue the principle further. The meaning ofthepassageI take to be that itis necessary toshow thatthe
•donation was made in fraud of creditors, if the daughter doesnotacceptthe succession. Thenon-acceptance of succession
seems to be the emphatic condition of the proposition that theproperty is not to be available for administration without proofof fraud.
The proposition we are asked '•to adopt seems to be involved inthe passage quoted; if it were not, Icannotunderstand whyany
reference should be madeto the daughter’sabstention fromthe
succession. The daughter in this case did accept the succession,andif theproposition contendedfor (which Ibelieve tobe
correct) is the Common Law of the country. I think that the plotof land called Kittanduwebedde is available for the debts of thedeceased donor, which therest of hisestateis unable to satisfy.
It is true that the remedyappears tobelongto the creditors,lint
I think that the administrator who was sued by them wasjustified in admitting and acting on their claim, if he believed itto be well founded in law.
In view of the fact that at the argument before Withers, J., andmyself, Mr. Dornhorst said that Kittanduwebedde ‘‘ never wasin the postnuptial settlement of Brightsun,” and of the remarksin his judgment, of Withers, J., which followed thereon, and alsoof the doubts which in my mind arise from a comparison of thesouthern boundary of the donation deed, I could have wishedthere had been evidence and decision on the issues at first framed,whether it was or not, since if it was not. all the contention .herein would be at an end. But as by reason of the admissionsmade at the trial in the lower Court and before us at the hearingin review, it must be assumed that Kittanduwebedde was included
( 209 )
in the dowrydeed, Iwould certainly consider that the defend-
Jwte 24 and an^g ^y theirpresenceand contentions in the testamentary and
U^ndadministrationproceedings have put forward claims as heirs to
the estate, which haveall the effect of an acceptance of inherit-
October is. ance by heirs under the Roman-Dutch Law. They left nothing
Browne:,A.J- undone of all procedure incumbent presently upon hen's to taliethe benefit of inheritance, with the consequent liability to paythe testator’s debts so far as the assets in their hands shouldextend, and the Paulian action does not fall to be considered.Coming in to claim the benefit of inheritance generally, theywould as regards other heirs have to collate what had beenreceived in. advancement as dowry, and the effect of the passagein Voet I take to be that the downed daughter claiming byinheritance foregoes any privilege by the special gift. I venture,therefore, to remain of opinion that the administrator had rightin himself to reclaim Kittanduwebedde from the donee inpossession of those lands when she had originally acquired orsubsequently held them under such circumstances or conditionsthat she could be called upon to surrender them to satisfy theclaims of creditors, and that they could not be so reclaimed onlyby the acts of the creditors themselves.
The judgment of this Court pronounced in 48,218, D. C, Co-lombo (Rdmandthan, 1867, p. 265), and repeated in 28,256, D. C.,Galle (Vanderstraaten, 273), has pointed out that though “ the“office of executor was not unknown to the Roman-Dutch Law“ in its later times, the executor was a very different functionary“ from the one who bears that name under the English system.
“ He was little more than the agent of the heir appointed by the“ will. He could not alienate or sell without the heir’s consent,
“ and if the heirs would not accept the inheritance, the executor-“ ship became a nullity.” I am unable to find anywhere a copyof Herbert’s Dutch Executor's Guide, to which reference is-fchefe made, but I would apprehend that under the Roman-Dutch Law there was every necessity, when an estate might beabandoned by the heir, that the creditors should have the Paulianaction given them to enforce payment of their claims, but thatunder English testamentary procedure this remedy though nottaken away will become necessary when an administrator under-takes on oath the duty that he will pay the debts of the intestate sofar as the assets will suffice and the law bind. Hence, in condi-tions like the present, when (if either the views of Withers, J., asto the necessary merger of the gift in the inheritance be accepted,or of my brother as to the invalidity of the gift be correct) thedonee is liable to be called on to surrender the asset, the
( 209 )
administrator might sue for it, or if he could find a buyer willing 1890.
to undertake the burden and oust of the necessary litigation, he June 24 and
might sell the asset and his claim thereon to such person, and
leave it to him to vindicate the asset as the plaintiff here seeks
to do. The procedure of such an action against one who has October IS.
taken bv deed would not be so very different from that bv heirs._
“….., Browke A.J,
who have not received their due share of inheritance against a
purchaser from the survivor of their parents. In form in eachinstance it would, possibly, to clear the title, be necessary oradvisable to declare that the deed of sale or donation respec-tively by the survivor was no impediment to the enforcement ofthe rights of the creditors or the donees in the respective cases,and though in his plaint here the plaintiff entirely ignored thedonation and the defendants’ rights claimed thereunder, and didnot pray any such declaratory reduction of its efficacy, suchdeclaration would always be construed out of the decree, whichin this action dispossessed the donee and vindicated the rightsof the purchaser-plaintiff, and could if necessary be formallyexpressed.
While entirely agreeing in the views of my Lord as to thedesirability, and indeed duty, that District Courts should seethat assets are realized to the best advautage of heirs and credi-tors alike, no defence in relation to any insufficiency of valueappears to have been here advanced, nor do I see how it- wellcould have been, against the purchaser. It would be material. for claim possibly against the administrator.
therefore, would affirm the decree.
aJ. X. A 68216(1/4?)
SOYSA v. WEERASURIYA