015-NLR-NLR-V-20-BABUN-APPU-et-al.-v.-WAIDASEKERA.pdf
( 62 )
1917.
Present: Wood Renton C.J. and De Sampayo J.
BAB UN APPU et al., v. WAIDASEKERA.
255—D. G. Galle, 14,060.
Executor de son tort—Right to sell property of deceased spouse for paymentof debts—What constitutes a person .an executor de son tort ?
A surviving spouse in the capacity of executor de son tort mayvalidly sell the property of the deceased spouse for the paymentof debts.
A single act of dealing with the property does not constitute thesurviving spouse an executor de son tort so as to validate the trans-action as against the heirs. The question, however, whether aperson is an executor de son tort is one of fact: it depends on thecircumstances of each case.
rjf HE facts are set out in the judgment.
Samarawickreme, for plaintiffs, appellants.
A. St. V. Jayaivardene, for defendant, respondent.
Gut. adv. vult.
( 63 )
October 4, 1917. Db Sampayo J.—
The question in this case is whether a sale of one FrancisHalliday’s share in certain immovable property made by his widowPauline was valid as against the second plaintiff, who is a daughter. of Francis Halliday by his first wife. Francis Halliday, togetherwith his mother and brothers and sisters, mortgaged the premisesin 1892 to one Vincent Bastiansz, who assigned the mortgage to thedefendant in March, 1894. Before any part of the debt was paidFrancis Halliday died intestate, and when the bond was put in suitin the action No. 2,990; D. C. Galle, the widow Pauline was madea defendant, as representing Francis Halliday and his then minordaughter the second plaintiff. Judgment was entered on SeptemberS, 1894, and in order to pay off the judgment debt all the parties,including Pauline, sold the land to the defendant. In this partitionaction the second plaintiff claims to be entitled to one-eighth shareof the premises by inheritance from her father, Francis Halliday.This appeal is taken from the judgment of the District Judge, whohas dismissed the action.
The law as to executors de son tort is well recognized in Ceylon.I need only refer on that point to Prins v. Pieris. 1 Indeed,Mr. Samarawickreme, for the plaintiffs, does not question that thelaw laid down there has been generally accepted, or that a survivingspouse in the capacity of executor de son tort may validly sell theproperty of the deceased spouse for the payment of debt3. Put hecontends that a single act of dealing with the property does notconstitute the surviving spouse an executor de son tort so as tovalidate the transaction as against the heirs, and he cites Mountfordv. Gibson. 3 This may be granted as a bare proposition of law, butit does not appear to me to apply to the facts of the present case.In the case cited the defendant had sold certain goods to theintestate, who died before the purchase money was paid, and ondemand being made for payment or for return of the goods, thewidow handed over the goods to the defendant. The Court heldthat the defendant could not in the circumstances resist the claimof the administrator, who sued him in trover. It is plain, however,that the Court regarded the question as to whether the widowbecame executrix de son tort as one of fact. Every case must dependon its own circumstances. In the present case I am satisfied thatPauline was in fact executrix de son tort. She must be taken tohave been sued, and judgment to have gone Against her on themortgage bond, in that capacity. The deed conveying the land to thedefendant is in the Sinhalese language, and cannot be expected tobe couched in strictly technical phraseology ; but Pauline describedher title as widow of Francis Halliday, and disposed of his wholeinterest in liquidation of his debt, though, in addition to the second
1 {1901) 4 N. L. R. 363.1 (1804) 4 Eos. t. 441.
1M7.
Babun Appu
Waidasekera
( 04 )
1917
Da toitoJ.
RdbunAppu
v.
Waidaaekera
plaintiff, Francis Halliday left anothed daughter by Pauline herself.
I think that it is sufficiently clear that she purported to act inher representative capacity. The circumstances also indicate that,the children being minors, Pauline was in possession generally ofher husband’s property. A suit against a widow for the debts ofher deceased husband, when she is in possession of the property ofthe estate, is the most common instance of suits against executorsde son tort. In Sellane t>. Thyalamuttu,1 which was a case of thatkind, it was held, as it was in Prin$ v. Pieris (supra); that a Fiscal’ssale in. execution of the decree was binding upon the heirs, anda private sale for payment of the judgment debt cannot be lessbinding. I may also refer to Silva v. Salman,2 which enunciatesthe principle of law governing the subject under consideration.
In my opinion this appeal fails.I think, however, that the
claim by plaintiffs was not wholly unreasonable, and that theaction was not improperly brought, so as to justify the order to paydouble stamp duty. I would delete that part of the decree appealedfrom, but, subject to that modification, I would dismiss the appeal,with costs.
Wood Benton C.J.t—I agree.
Appeal dismissed-
1 (1901) 4 S. O. D. 65
*(1916) 19 N. L. R, 606.