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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
In the Matter of the Estate of the late Philip Ambroseof Kandy, deceased.
WISE et al. v. MUNIAREM.
D. G., Kandy, 2,079.
Inheritance by grandchildren—Per stirpes—Per capita—MatrimonialRights and Inheritance Ordinance (No. 15 of 1876), as. 28, 34.Where a person dies leaving only grandchildren, such grand-children take per stirpes and not per capita.
PPEAL from a judgment of the District Judge of Kandy (F. R.
Dias, Esq.). The facts material to the report sufficientlyappear in the judgments.
Van Langenberg (with him H.J. C. Pereira and H. Jayawardene),for the administrator, appellant.
Bawa, for the petitioners, respondents.
Cur. adv. vuU.
January 12, 1909. Hutchinson, C.J.—
This is an appeal by the administrator of the estate of the latePhilip Ambrose, against an order for a judicial settlement of hisaccounts. The facts are fully set out in the judgment under appealand in the judgment of Wendt J. on a former appeal in the samematter, and I will confine myself to dealing with the points arguedon the hearing of this appeal.
The first and most important question is whether the intestate’sgrandchildren inherited per stirpes or per capita. His two children,
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1909. Martin and Isabella, both died in his lifetime. Martin left sixJanuary 12; oiuldron.; Isabella left two ; and all these eight grandchildren sur-Hutchinson vived the intestate. Neither the administrator (who wa3 Isabella’sC J- husband), nor Agnes (who was Martin’s widow), inherited any sharefrom the intestate. When this matter first came before the DistrictCourt, the Judge, Mr. Dias, held that the grandchildren took percapita. On appeal from his order, this Court, without deciding thatquestion, set the order aside, on the ground that all the partiesinterested were not before the Court, and remitted the case in orderthat the respondents’ application might be dealt with as an appli-cation for a judicial settlement, all parties interested being citedbefore the hearing. This order on appeal was made on December. 19, 1905. The matter came again before Mr.-Templer, DistriotJudge, in September, 1907 ; he settled issues, the first of which was :Did the grandchildren take per stirpes or per capita ? ' He took upthat issue first, and on September 25, 1907, he ruled that they tookper stirpes. The further hearing was adjourned to January 21,1908,when the case came before another Judge, Mr. Dias, who proceededto deal with the issues which had been settled by Mr. Templer. Andafter taking evidence, he made the order now under appeal. Hefirst held, without making any reference to Mr. Templer’s ruling ofSeptember 25, that the heirs took per capita.
It has not been contended that he had power to over-rule hispredecessor’s ruling of September 25. But if he had adopted it, itwould have been open to review on this appeal, and we must nowdecide whether the inheritance is per stirpes or per capita. Thisdepends on the provisions of the Matrimonial Rights and Inheri-tance Ordinance, No. 15 of 1876. Section 28 enacts that “ children,grandchildren, and remoter descendants are preferred to all otherin the estate of their parents ; all the children take equally per capita,but the children or remoter issue of a deceased child take per stirpesor by representation.” And section 34 enacts that “ except whenotherwise expressly provided, if all those who succeed to the inheri-tance are equally near in degree to the intestate, they take percapita and not per stirpes." These enactments govern the question.Mr. Templer says that it was stated at the Bar that.the Ordinance,so far as inheritance is concerned, was merely declaratory of thecommon law, and he finds the rule of the common law stated inThompson's Institutes; but I do not think that we can go into that,for the Ordinance recites that it is intended to amend the lawrelating to inheritance. And section 40 of the Ordinance, enactingthat in questions where the Ordinance is silent the rules of theRoman-Dutch Law are to govern, has also no application, becausethis is not a question on which the Ordinance is silent.
It is very strange that on a question of such common occurrencethere is no decision reported. None, however, has been quoted tous. In my opinion section 28 means what it means to say, that
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grandchildren take per stirpes in every case; and I would make adeclaration accordingly.
The respondents are the husbands and the two children of Kate(one of Martin’s children). The administrator must account to themfor their share on the footing that the children were entitled betweenthem to one-half of Kate’s share, which was one-twelfth (the otherhalf being that to which their father became entitled on her death).But in taking this account the administrator is entitled to credit forany payments made in Kate’s lifetime, for it is in evidence that theywere made with her express consent and that of her husband, andthe latter has not disputed this. And in taking the accounts theadministrator is also to be credited with all payments made to anyof the heirs for which he has receipts from them.
The appellant’s counsel points out that the respondents areclaiming as heirs of Kate (who survived the intestate), and that thereis no evidence that her estate was worth less than Rs. 1,000, and noadministration has been taken out to her. I think that at thislate stage of the proceedings, and considering the probability thatKate’s estate was not worth Rs. 1,000, we can dispose of that ob-jection by directing the District Court to take evidence on the point,and to require, if it is found necessary, that administration to herestate be taken out before making any order for payment to herrepresentatives. Paragraph (2) of the judgment under appeal seemsto be right. As to paragraph (3), I think that there is sufficientevidence of the receipt by Kate of her share of the money, andjewellery, without any written receipt. The administrator shouldbe credited with that in his account. Paragraph (4) I think isright. Paragraph (5), I think there is sufficient evidence that thepayments to Kate’s mother in Kate’s lifetime were made with herconsent, and the administrator should be credited with them.Paragraphs (6), (7), (8), and (9) I think are right. Paragraph (10) isright, except that the share of the administrator’s son John wasone-fourth.
The order of the District Court should be amended in accordancewith the above directions. No fraud or wilful misconduct by theadministrator has been alleged. But he was in the wrong, and Iwould not alter the order of the District Court as to costs. I wouldmake no order as to the costs of this appeal.
I entirely agree with the decision of the Chief Justice upon eachof the points submitted to us at the argument of the appeal. Idesire to add a few words on one of these points only, namely, thatas to the construction of The Matrimonial Rights and InheritanceOrdinance, 1876. I felt a difficulty in accepting the contentionthat where the heirs are all grandchildren they must take per stirpes,because although section 28 of the Ordinance by itself appeared
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1909. clearly to lay down that rule, yet it was obvious that the LegislatureJanuary 12. had adopted the language of Henry’s translation of Vanderlinden,Wendt J. Book /., eh. X.,sec. 2. Vanderlinden in that passage was layingdown a principle oommon to both the North Holland and SouthHolland systems of inheritance, and my difficulty arose from theimpression I had that the Roman-Dutch Law—or, at all events, theNorth Holland system which is adopted in our Ordinance—recog-nized a division per capita in the case of descendants of the intestateas well as in the case of collaterals. Had that impression beencorrect, there would have been some colour for applying section 34of the Ordinance to the present case. But a careful study ofVanderlinden and Qrotius has made it clear that in the case ofdescendants representation was the rule ad infinitum, division percapita being entirely excluded (see especially Qrotius’ Introduction2,28,13, Maardorp’s translation, 2nd Edition, p. 133). Accordingly,I think that we must give effect to the plain words of section 28, andhold that the division among the grandchildren must be per stirpes.The learned District Judge (Mr. Dias), in applying section 34 hasignored its opening words : “ except when otherwise expresslyprovided.” Section 28 is an express provision otherwise. I agreewith the order as to costs proposed by the Chief Justice.
WISE et al. v. MUNIAREM