038-NLR-NLR-V-09-CANTLAY-v.-ELKINGTON.pdf
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1906.June 29.
Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, Mr.Justice Middleton, and Mr. Justice Wood Benton.
CANTLAY v. ELKINGTON.D. G., Kandy, 15,378.
Marriage in community—Death of one spouse—Administrator of deceased-.
spouse—Vesting of entire estate—Judgment against administrator—
Liability of entire estate—English law of executors and adminis-trators—Estoppel.
Held, that—
When one of two spouses married in community of property
dies, the entirety of the common estate vests in the administratorof such deceased spousefor purposes of administration;and on
a judgment obtained against suchadministrator alone the entire
common property may be sold.
Peseta v. Silva (2 C. L. R. 150) and Nanohamy v. Perera (2 C. L. R.153) followed.
Section 2 of Ordinance 'No. 7 of 1840 does not apply to thedivision of property in community, which takes place by operationof law and not by convention of parties.
The English Land ' Transfer Act, 1897, does not apply toCeylon.
Lascellbs,A.C.J.—Inmatters involving title- to property
it is a well established principle that a decision, which has been inforce andhasbeenacted onforsome time,should not be disturbed
except for the strongest reasons.
Wood Renton, J.—A cursus curia' of long standing and therights which have grown up under its sanction should not be lightlydisturbed.
Wherethewife,marriedincommunityof property, allowed a
third party to take out administration to her deceased husband’sestate and to enter into possession of the whole of the commonproperty,dylnotask for' anyaccounts,and though represented
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in Ceylon by an attorney and aware that the entire property hadbeen sold by the Fiscal, took no steps to claim her share for severalyears,—
Held, that she most be taken to have renounced her right to anyshare in the propterty, and that her conduct estopped her fromclaiming any share of the property now.
In Review.
J
AMES CANTLAT and Alexander Cantlay were the owners of aproperly called Ladbroke estate. James Cantlay married the
plaintiff on the 13th February, 1877, in community of property,and died intestate on 31 August, 1888. Charles Cantlaywas appointed administrator of James Cantlay’s estate. A. C.White instituted an action against Alexander Cantlay andCharles Cantlay, as administrator of the estate of James Cantlay,■on a mortgage bond executed by James Cantlay and AlexanderCantlay mortgaging a property called Gingran-oya estate, andobtained judgment and issued writ. The mortgaged propertywas sold but did not realize the amount of the decree. Inorder to recover the balance due Ladbroke estate belonging toJames Cantlay and Alexander Cantlay was seized and sold by theFiscal and purchased by A. C. White, who obtained a Fiscal’s transferdated 4th June, 1889, which conveyed to him the “ right, title, andinterest of Alexander Cantlay and the late James Cantlay.” Thedefendant claimed title to the property through the purchaser atthe Fiscal’s sale. The plaintiff left the Island in March, 1889, and■ returned in May, 1901, and in May. 1903, instituted this action tovindicate one-fourth share of Ladbroke estate, alleging that herinterest in the common property of her herself and her husbandhad not been seized or sold by the Fiscal. The District Judge(J. H. de Saram, Esq.) dismissed the action. His judgment wasas follows: —
“ This is an action to vindicate from the defendant an undividedfourth share in Ladbroke estate. The estate was owned by twobrothers, James Cantlay and Alexander Cantlay. The transferin their favour is dated 28th June, 1886. James Cantlay marriedthe plaintiff in* community of property on the 13th February, 1877,and died intestate on 31st August, 1886. The plaintiff alleges thatthe community came to an end on the death of her husband, andthat she then became, in her own right, entitled .to an undividedfourth share of Ladbroke. Charles Cantlay was appointed bythis Court administrator of James Cantlay’s estate. A. C. Whiteinstituted the action No. 1,810 of this Court against AlexanderCantlay and Charles Cantlay, administrator of James Cantlay’sestate, to recover a large sum of money due by Alexander Cantlay and
1906.
June 20.
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1906.James Cantlay. Gingran-oya estate, the property mortgaged, was
June 29. gold, but did not realize sufficient to pay the mortgage debt. Lad-broke estate was then seized and sold by the Fiscal on the 4th May,1889. A. C. White purchased the right, title, and interest ofAlexander Cantlay and of James Cantlay and obtained a Fiscal’sconveyance, which is dated 4th June, 1889. After certain devolu-tions of title, the defendant purchased the whole of Ladbroke onthe 1st June, 1900. The plaintiff left the Island in March, 1889,and returned in May, 1901. The administrator was in possessionof Ladbroke when she left, She pleads the benefit of clause 14 ofthe Ordinance No. 22 of 1871 and the saving clause therein con-tained in favour of those absent beyond the seas with reference toclaims to land. She complains of the defendant that he has beenin unlawful possession of a fourth of the estate since June, 1900,and prays that she be declared entitled to that share. The questionI have to determine is whether the administrator of the husband’sestate had power to deal with the common estate of the husbandand wife for the debt of the community. In his inventory theadministrator included the whole share owned by the husband andwife, and accounted for it in the testamentary action. The contentionfor the plaintiff is that at most the Fiscal sold James Cantlay’s.interest only, which at the. date of sale it is said was a fourth share,and that as the plaintiff was not a party to the action No. 1,810,her share in the property could not be sold. Mr. Dornhorst ap-pearing for the defendant argued that the whole estate stante matri-monio was seized and the Fiscal’s conveyance of the husband’sinterest was good, it being a conveyance of the husband’s estatewhich binds the widow. It was held in Perera v. Silva (1) by Burn-side C.J. that upon the death of one of the spouses the entirecommon estate vests, in the first instance, in the administratorof the deceased for disposal among the persons legally entitled toindividual shares of it. This is what the Chief Justice said: ‘ 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 by thefact that the surviving wife’s estate thus acquired is liable in allrespects to the payment of the debts of the husband, as is the hus-band’s half of it; and also there was this further qualification, thatin case the property was naturally indivisible it would be to thevalue only of Bucb property that the widow’s right extended. Wehave already held that the right of the executor to the immovableproperty of the deceased is, for the purpose of administration. 1
(1) (18931 2 C. L. R. 150.
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eo-extensive with his right to personal property, for the paymentof debts. The Roman-Dutch Law, as a mere matter of procedure,rendered the wife liable to be sued in respect of the liability of hershare of the intestate estate. Our statute law has engrafted on theRoman-Dutch Law the law of administration providing for theappointment of administrators for the purpose of securing a responsibleperson liable at law for the due disposal of intestates’ estate, bothamong creditors and next of kin, and it seems jto methat we are only walking abreast with the law as it now exists inholding that the whole estate of the deceased should in the firstinstance vest in the administrator for disposal among the personslegally entitled to individual shares of it. It certainly would be agross anomaly if the administrator, although subject to be suedfor the deceased’s debts, could not realize the property liable forthem.’
“ In Nonohami v. Perera (1) Withers J. agreed with Burnside C.J.He said: ‘ I understand the Chief Justice to have ruled in the casereferred to that on the death of a husband who was married incommunity of goods, intestate, the whole of the common effectsvests in the surviving spouse if she takes out letters of administrationto his estate, or indeed in any one to whom they may be committedfor the purposes of administration. This is consonant with thetendency of decisions of this Court in later days and not inconsistent,I believe, with modem practice. It cannot, I venture to think,be reconciled with Roman-Dutch Law pure and simple, accordingto which the community of estate between two spouses was dissolvedinstantly upon the death of either of them, and upon such dissolutionthe common estate was equally apportioned between the heirs ofthe deceased and the survivor, with the consequence that after theapportionment the creditor could sue the husband and his heirsfor the whole, or the wife and her heirs for the half, of the debtscontracted during the marriage as the case might be. That rulinghqwever, it seems to me, is just and convenient, even if it is not theexpression of what has been the law uniformly laid down by thisCourt. I should be sorry to say that it is not. I have once beforehad with regrqt to confess my ignorance of the exact state of thelaw in Ceylon in regard to executors and administrators, and Irepeat what I said before that for the sake of the community I amready to subscribe to any proposition of law on this important matterwhich is clear and precise and cannot be possibly mistaken, so longof course, as I do not think it to .be* fundamentally vicious as law. ’“ I consider I would be right to follow these judgments and therefore(1) (1893) 2 C. L. R. 153.
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June 29.
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1906.answertheeleventh issue, viz., Had the administrator of the hus-
Jyne 20.band’sestate power to deal with the common estate of the husband
and wife for the debt of the community? in the affirmative. Thisstrikes at the root of the plaintiff’s case, which I dismiss with costs.I should not omit to point out the absurdity of the plaintiff’s case,whereby she seeks to recover a share in Ladbroke without offeringto payanyportion of the debt of the community. It is true she
cannotpaythat to the defendant, but she"does not offer to pay it
to any one. The plaintiff is to pay the defendant’s costs.”
In appeal the judgment of the District Judge was affirmed';, andthe plaintiff had the case brought up in review preparatory to appealto His Majesty in Council.
Walter Pereira, K.C., for the plaintiff, appellant.
DomhoTst, K.C. (VanLangenberg A. S.-G. with him),, for thedefendant, respondent.
Cur. adv. vult.
29th June, 1906. Lascelles A.C.J.—
The principal question tor determination is whether on the deathof one of two persons married in community of goods the whole ofthe joint estate vests in the administrator, so as to be liable to beseized and sold in execution for the joint debt of the community.
The question turns not so much upon the Roman-Dutch Lawas on the nature and extent of the alterations entailed by the intro-duction of the English Law of executors and administrators. I
I do not agree with the view that the local Ordinance of Frauds(No. 7 of 1840) has any bearing on this question. The provisionsof section 2, which require sales, purchases, and transfers to bemade by – notarial instrument, have in my opinion no application.to the change of ownership which is effected by marriage in com-munity of goods.
By Roman-Dutch Law no transfer was required to bring theproperty of the spouses into the marriage community (1).
This was effected by operation of law, by the commixtio whichwas considered to take place on marriage. In the dame way on thedeath of one of the spouses the division between his heirs and thesurvivor took place i'pso jure. The common property was dividedinto two parts, one being given to the heirs of the .deceased spouseand the other to the survivor. Creditors had a right of action fordebts contracted during the marriage against the husband or his heirsfor the full amount, and against the wife or her heirs for the
(1) Grotitu, 2, 11, 7. and note.
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half. If the husband’s estate was insufficient there was a right ofrecourse to that of the wife. The estate was thus taken subject tothe debts of the community.
Whether as a matter of practice the estate was cleared of debtsbefore the division was made does not clearly appear from theauthorities cited to us.
The difficulty of adapting the English system of administrationto the principles of the Boman-Dutch Law has led to considerableconfusion. In 1893 in the cases of Perera v. Silva (1) and Nonohamyv. Perera (2) this Court endeavoured to solve the difficulty by rulingthat upon the death of one of the spouses, the entire common estatevests in the first instance in the administrator of the deceasedspouse for disposal among the persons legally entitled. We arenow in effect asked to over-rule these decisions, which are said to berepugnant to the principles of Boman-Dutch Law.
The language of Burnside C.J. in the first-named case and thatof Withers J. clearly shows that these decisions were based onconsiderations of practical convenience. Burnside C.J. regardedthe provision of the .Boman-Dutch Law as to suing a survivingspouse as a mere matter of procedure, and laid down the rude whichis now called in question in order to avoid multiplicity of suits anddivided administration.
Withers J. fully recognized that the ruling could not be reconciledwith the Boman-Dutch Law pure and simple, but he regarded itas consonant with the tendency of decisions of this Court in laterdays and not inconsistent, as he believed, with modern practice.
Whatever objections may be taken to these decisions on theground of departure from the Boman-Dutch Law, it is clear thatthey cannot now be over-ruled without producing widespreadinconvenience. Grenier J. speaking from his experience as Judgeof the District Court of Colombo, endorses what Withers J. statedas to the practice prevailing in modern times.
In a matter like this involving title to property it is a well-estab-lished principle that a decision which has been in force and has beenacted on for some time should not be disturbed except for thestrongest reasons.
I see no adequate ground for setting sjside the rule which waslaid down by this Court on grounds of public convenience thirteenyears ago and has since been generally followed. With regard toMoficreiff J.’s reference to the English Land Transfer Act, I desireonly to state that I do not concur in the view that the Englishstatutes relating to executors and administrators are in force in
(1) (1893) 2 C. L. R. 150.(2) (1893) 2 G. L. R. 153.
1906.
June 29.
LASCELIiES
A.O.J.
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1906.
June 29.
Lasoeixes
A.C.J.
Ceylon. In any case section 1 of that Act, dealing as it does withthe devolution of estates in land which are unknown to the Jawof Ceylon, has in my opinion no bearing on the question underconsideration.
I entirely concur in the view that the plaintiff must be taken tohave renounced her interest in the common estate. She had noticepf Charles Cantlay’s application for administration, and was awarethat he took possession of all the estate; when she left Ceylon sheknew that the half share in Ladbrowe estate was in charge of theadministrator; no account was asked for by her during her absencefrom Ceylon; she heard of the sale to Mr. White, and, thoughrepresented in Ceylon by an attorney, took no steps to claim anyshare in Ladbroke. In my opinion the plaintiff by her conduct hasplainly indicated her intention to renounce her share in the estate.It would be unreasonable at the present' day to insist upon theperformance of the formalities which the Boman-Dutch Law re-garded as indications of the widow’s intention to renounce inheri-tance such as placing the key of the house on the coffin or walkingin ordinary attire upon the bier.
I should also be prepared to hold that the plaintiff is estoppedby her conduct from claiming an interest in Ladbroke estate. By herconduct she has permitted, as far as it was possible for a person inher position to do so, purchasers to act on the belief that she hadno claim to the estate. I concur in the judgments under review.
Middleton J.—
The main point insisted on by the appellant’s counsel was thatthe Fiscal’s transfer which only purported to convey the right,title, and interest of James and Alexander Cantlay, did not conveywith it the interest of the appellant derived from the communityin the property.
Assuming that I was wrong in my view of the effect of section 2of Ordinance No. 7 of 1840, it is difficult to hold, on the theory of avested right to half the property in the wife, that the defendantshould succeed upon a strict construction of the ruling of ChiefJustice Burnside and Mr. Justice Withers in the cases of Perera v.Silva (1) and Nonohamy v. Perera (2), which undoubtedly have thesanction of convenience and long usage to support them.
In these cases the Court held that the “ estate of the deceasedspouse, together with the share which would belong to the survivor,vested in the administrator for disposal among the persons legallyentitled to individual shares of it.”
(1) (1893) 2 C. L. R. 150.(2) (1893) 2 C. L. R. 153.
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If it is conceded—and I strongly incline to this view—that thewife’s interest in the community does not vest on the death of thehusband, but remains a jus in re contingent only on the paymentof the debts of the community, then I think that the transfer is agood one and includes the interest of the plaintiff.
This view of the position of the wife in regard to the propertyin community is consonant with the opinion of Orotius (Bk. HI.,Gh. XXVIII8. 2, Herbert’s translation, p. 407) of the communityof property in general. In any case, I think the plaintiff is estoppedby her conduct from asserting her title to the portion of Ladbrokeestate now in claim by her on the authority of section 115 of theEvidence Ordinance, No. 14 of 1895.
I think that the judgment under review should stand.
Wood Benton J.—
I agree that the judgments under review should be affirmed. Irest my decision upon, and confine it to the following grounds:(i.) the cursus curios in regard to the matter in issue; (ii.) abandon-ment or renunciation by the widow of the property in community; (iii.)estoppel of the widow in pais from alleging that the mortgage decreeis not binding on her because she was not made a party to the suit..
And first as to (i.) the cursus curiae. There appears to be somedoubt, and some room for doubt, on the Roman-Dutch authoritiesthemselves, as to the practice in regard to the administration ofproperty in community after the death of one of the spouses. It is,of course, clear—to take the class of case before us—that the deathof the husband dissolved the community and crystallized the-wife’sright to a moiety of the property in common subject to the claimsof creditors (1). But is it clear that the husband’s right of possessionof the common property after the death of his wife did not involvethe right and duty of paying all the debts of the community and ofthen—and then only—effecting the division which the law pres-cribes? There is nothing necessarily inconsistent with this viewin the fact that creditors of spouses married in common have anelection either to sue the husband for the whole or the wife for thehalf of the debts due by the estate; and .there are texts which seem,to support it. » It is certain, for instance, that collation precededdivision (1); and Burge (1, 311) says that “ before the shares can be.ascertained, those debts, charges, and expenses to which the pro-perty is subject must be deducted.” I have unfortunately not beenable to get access to the books which he cites as an authority forthis proposition, viz., Wesel and Someren. If there were anythingin the point that I have raised, I take it that under the law of Geylon.
(1) Herbert’s Grotius, 2, 11, 18.
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Middleton
J.
1906.
June 29.
WoodBenton J.
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the husband’s right of administration would pass to his administra-tor. In the cases, however, in which the doctrine now challengedby the appellant was introduced into this Colony, it is assumed thata departure was being made from the pure Roman-Dutch Law, andI content myself with expressing my entire concurrence in whathas fallen from my brothers as to the importance in such a case asthis of not disturbing a curaus ounce of comparatively long standingand the rights which have grown up under its sanction. The effectof the decisions referred to is that the entire property in communityvests in the administrator of the husband for purposes of adminis-tration. This seems to me to dispose of Mr. Walter Pereira’s pointas to the Fiscal’s transfer. For the right of the husband to thepossession of the whole property in common for purposes of ad-ministration was part of the right, title, and interest which he hadin the estate within the meaning.of the Fiscal’s conveyance. Thereare two incidental points on which I must add a word in this con-nection. I do not think that section 2 of Ordinance No. 7 of 1840applies to the division of property in community. In my opinion,as the community was constituted on marriage i'pso jure, withoutthe necessity either then or during the marriage of any transfer toit of the immovable property originally forming part of, or sub-sequently falling into, the joint estate (1), so nothing in the natureof a transfer is needed or takes place at the ultimate division of theproperty. The widow has all along had a real though deferred andperhaps contingent right. She has had a right whose reality isshown by the fact that the Courts would, under certain circum-stances, interfere with her husband’s wide powers of administrationfor its protection. On the division of the property she merelyenters by operation of law on the enjoyment ■ of what has beenduring the marriage contingently – her own. If this process canproperly be described as a transfer, I do not think it is the kind oftransfer indicated in section 2 of Ordinance No. 7 of 1840, the wholeterms, and particularly the second clause, of which seem to con-template rights created by convention and not by the act of the law.
Again I cannot follow Moncreiff, J. in his references to theLand Transfer Act, 1897. If his remarks are intended only as areductio ad absurdum of the argument of Burnside C.J. in Perera v.Silva (2) as to “ walking abreast with the law as it now exists,” Ithink he has misapprehended Sir Bruce Burnside’s meaning. Ifthey imply anything more, I can only respectfully dissent from them.When we speak of the introduction into Ceylon of the English law
Voet, 23, 2, 68; Grotius (Maas dorp) 2, 11, 7; Burge, vol. 1. p. 280.
(1893) 2 C. L. R. 159.
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of executors and administrators we refer to the general law alone—1906.
to the English conception of executorship and administratorship June 29.as contrasted with that of the heir under the Civil and the Boman- woovDutch Law. It does not follow—and in my opinion it is not the Renton J.case—that every English statute dealing with executors andadministrators and especially a statute so closely associated withthe incidents of English real property law as the Land TransferAct, 1897, have been incorporated into the law of the Colony.
On the question of abandonment (ii.) and estoppel (iii.) I havenothing to add, except that—in addition to the Boman-Dutchauthorities in its favour—the ground of renunciation formed thebasis of the decision of Lawrie J. in Perera v. Silva (ubi sup.); andthat the facts appear to me to disclose a complete case of estoppelby conduct against the appellant who comes forward, after yearsof silent acquiescence, not to deny her indisputable liability, butmerely to insist that it shall not be enforced against her in a par*ticular way.
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