de Silva v. de Silva.
1988Present: Maartensz and Keuneman JJ.
DE SILVA et al. v. DE SILVA.
81—D. C. Galle, 36,337.
Bequest—Property subject to a mortgage—Duty of the executor to release themortgage—Right of executor to claim prescription,—Roman-Dutch law.Where property subject to a mortgage is devised by last will it is theduty of the executor to release the mortgage, if the testator was awareof the existence of the mortgage and, the terms of the will do not eitherexpressly or by implication show an intention to bequeath the propertyburdened with the mortgage.
The rights of the devisee will be determined by the Roman-Dutchlaw.
The executor is entitled to claim the benefit of the PrescriptionOrdinance unless he is an express trustee in terms of the will.
Y last will dated February 8, 1931, one Andris Silva devised a landcalled Bandarawatta to Nikohamy which was subject to a mortgage
created by the testator a few days before the will. After the will wasadmitted to probate the mortgagee put the bond in suit against thedefendant as executor and under the decree in the action the land wassold. The plaintiffs, who are the personal representatives of Nikohamy,
. brought the present action against the defendant as executor allegingthat the defendant had failed and neglected to convey the land to themand claiming Rs. 1,000 as the value of the land. The learned DistrictJudge held that it was not the intention of the testator to devise theproperty free of the mortgage and that it was not the duty of the exe-cutor to release the mortgage.
L. A. Rajapakse (with him M. M. I. Kariapper), for the plaintiffs,appellants.—The matter in dispute is about the construction of a last will,involving the rights of a legatee. It is a question of substantive law, andtherefore the Roman-Dutch law is applicable. See Cassim v. Hassen'.
Our law is different from the English law in respect of the legal positionwith regard to the estate of a deceased. See Silva v. Silva
The Roman-Dutch law is clear on the point.
Where the legacy has a burden, which may endanger the ownership,e.g., a mortgage, the estate will have to pay it off, where the testator was.aware of the burden.' Grotius 2.22.16; Voet 30.27. See Buchanan’stranslation; Van der Keesel’s Theses 325.
The position is succinctly stated in 1 Maas dorp (5th ed.), p. 207; and3 Nathan, s. 1864.
The principle has been accepted in South Africa in Ruthjelder v.Ruthjelder % which has been followed in Trustees, Lutheran Churchv Estate'. See also Juta on Wills, p. 144, and Steyn on Willsr pp. 80-81.
Even in the English law the position is favourable to the appellant.See Williams (12 ed.) Executors, vol. 2, pp. 1099-1100. No question ofprescription arises as the executor is in the position of a trustee.
Eheliyagoda v. Samaradiwakara *.
1 29 N. L. R. 89 al pp. 92-93.
110 N. L. R. 234.
* 22 N. L. R. 179.
3 4 Buch 9,
* (1916) C. P. D. 876.
KEUNEMAN J.—de Silva v. de Silva.
N. E. Weerasooria (with him G. P. J. Kurukulasooria and A. E. R. Corea),for the defendant, respondent.—This is a specific legacy, and it is theEnglish law that should govern the matter.
Whether the Koman-Dutch law or the English law applies the cause ofaction is clearly prescribed.
The right to claim the legacy accrued either when the testator diedApril, 1931, or when probate issued 1932. The cause of action isprescribed in three years. Section 11 of Ordinance No. 22 of 1871.
The action is based on a tort. See the plaint. In that view of it,it is prescribed in two years. Section 10 of Ordinance No. 22 of 1871.
The executor is a trustee in a loose sense only. Unless he is anexpress trustee, prescription will run in his favour. In re Jane Davis,Evans v. Moore1 and In re Mackay, Mackay v. Goulds.
Cur. adv. vult.
June 22, 1938. Keuneman J.—
In this case Andris Silva by last will P 1 dated February 8, 1931,made specific devises to five persons. One of these persons was Nikohamyto whom a land called Lunuheratota Bandarawatta olios Okadewattawas devised. The residue of the movable and immovable property wasbequeathed to the defendant who was also appointed executor of the lastwill. The property devised to Nikohamy was subject to a mortgage,created by the deceased testator on February 2, 1931, a few days priorto the last will. The testator died on April 3, 1931. Thereafter themortgagee of the land in question sued the defendant as executor on themortgage, and under the decree in this action the land in question wassold in February, 1933.
The plaintiffs who are the personal representatives of Nikohamywho died after the testator about April 21, 1931, brought the presentaction against the defendant as executor alleging that the defendanthas failed and neglected to convey the land in question to them andclaiming Rs. 1,000 as the value of the land. The action was filed onOctober 26, 1937.
The learned District Judge held that it could not be inferred that itwas the intention of the deceased testator to devise the property free ofthe mortgage, and that no duty was cast on the executor to redeem themortgage. If there was such a duty, the learned District Judge heldthat there were ample funds of the estate, more than enough to satisfythe claim on the bond. The action of the plaintiffs was- dismissed,and they appeal.
The position under the Roman-Dutch law is summarized in Maasdorp’sInstitutes of South African Law (5th ed.), vol. I., p. 207, as follows : —
“ If the property bequeathed is found to have a burden of somekind upon it, it becomes a question of importance whether the legateeis bound to accept the property burdened as it is or whether it will bethe duty of the executor or the person specially burdened with thelegacy to release the property from the burden and to deliver it to thelegatee free and unburdened. A distinction is drawn by some writersbetween burdens which may endanger the ownership of the property. 1 L. R. (1891) 3 Ch. D. 119 at 124.2 L. R. (1906) 1 Cl1. D. 25.
KEUNEMAN J.—de Silva v. de Silva.
and those which can have no such effect, and it is laid down by themthat in the former case the duty of freeing the property will, as a generalrule, fall upon the estate or person burdened with the bequest, but thatin the latter the legatee will take the property burdened as it is. The realtest, however, is what was the intention of die testator, judging from thenature of the property and from the terms of the will. In the case of amortgage, for instance, which is one of the burdens which arecalculated to endanger the ownership of the property, the duty ofdischarging the mortgage falls upon the estate, if the testator wasaware of the existence of the mortgage, but not if he was ignorant of it,nor. if it appears from the terms of the will either express or impliedthat the property' was bequeathed to the legatee burdened with themortgage. ”
The law is laid down in very similar terms in Nathan’s Common Law ofSouth Africa (1906 ed.,) vol. 3, p. 1886, para 1864. This is based on theauthority of Voet’s Pandects XXX. 27 and Grotius 2.22.16, and has beenaccepted in South African cases—vide Rathf elder v. Rathfelder1 andTrustees Lutheran Church, Cape Town v. Estate Bam'.
■ If the Boman-Dutch authorities are applied, it is clear that the testatorwas aware of the existence of the mortgage, which in fact he createdhimself, and that the terms of the will do not, either expressly or byimplication, show an intention on the part of the testator that the landin question should go to Nikohamy burdened with the mortgage. It wasaccordingly the duty of the executor to free the land in question from theburden, and hand it' over unencumbered to the devisee. On his failureto do that, an action such as the present would lie.
It has been argued, but not very strenously, that the law applicablein this case in Ceylon is the English law and not the Roman-Dutch law.I cannot accede to this proposition, as the question with which we areconcerned is the right of a devisee, a matter of substantive law, and not ofprocedure. In the Charter of 1833 clause 27 full power and authoritywas granted to District Courts to appoint administrators to the estatesof intestates, to grant probate to executors and to exercise other powersin matters connected with such offices. In Staples v. de Saram * the effectof this clause was considered, and it was held that the old Roman-Dutchlaw relating to heirs ex testamento and heirs sine testamento had beenentirely abrogated, as being incompatible with the English law whichwas ordained.
In the later Full Bench case of Silva v. Silva ‘ the effect of clause 27-of the Charter was touched upon but not finally determined. It washeld there that on the death of a person, his estate in the absence of awill, passes at once by operation of law to his heirs and the dominiumvests in them, and further that a conveyance by the heir or devisee ofhis share of the immovable property of the deceased is not void. Thisprinciple appears to have been derived from the common law, i.e., theRoman-Dutch law, although it appears that there was nothing to conflictwith that view in the English law.
4 Buchanans Reports 9.3 10 N. L. R. 234.
(1916)' 6. P. D. 376.• Ramanaikan (1863 to 1868) 265 at p. 275.
KEUNEMAN J.—de Silva v. de Silva.231
I am unable to see how clause 27 of the Charter can be said to havetaken away from a devisee any substantive right which he previouslyhad, nor has any authority been cited to us to that effect. I thereforethink that the devisee is entitled to stand upon his rights under theRoman-Dutch law.
Further it is not clear in any event that the English law applicablein this particular case is different to the rule of the Roman-Dutch law.Under the Administration of Estates Act, 1925, section 35, it was enactedthat where a person disposes by will of his interest in property,
• which at the time of his death is charged with the payment of money, andthe deceased has not by will, deed or other document signified a contraryintention, the interest so charged, as between the different personsclaiming through the deceased shall be primarily liable for the paymentof the charge. This rule is however the creature of the statute. Priorto this by the Locke King Acts of 1854, 1867, and 1877 a similar rulehad been applied to the case of estates or interests in land, includingfreeholds, copyholds, and leaseholds charged with the payment of money.As these Acts did not apply to pure personality, it Was held that where aspecific legacy was pledged or charged by a testator who died before 1926,the specific legatee was, in the absence of a contrary intention in the will,entitled to have his legacy redeemed or exonerated by the executor or ifthe executor failed to perform this duty, to claim compensation to theamount of the legacy out of the general assets of the testator (videWilliams on Executors, 12 ed., pp. 1099 and 1100).
It would appear therefore that the rule of the English common.lawwas not dissimilar to the rule under the Roman-Dutch law, and this ruleapplied both to real and to personal property in 1833. If we are toapply the English law, I take it that we must have recourse to this lawand not to the later English Statutes.
I think therefore that the learned District Judge was wrong in holdingthat in the absence of clear intention in the will to devise the propertyfree of the mortgage, it could not be inferred that it was the testator'swish to devise the property free of the mortgage.
The learned District Judge had rested his, judgment on this findingalone. In appeal, however, another issue, viz., that of prescription waspressed by counsel for the respondent. Counsel for the appellant reliedon the case of Eheliyagoda v. Samaradiwakara1 in which it was heldthat as the executor was a trustee prescription did not run. Counselfor the respondent referred me to In re Jane Davis: Evans v. Moore *.
In this case Lindley L.J. said “ The Statute of Limitations excepts onlyexpress trusts and there is no more an express trust under that orderthan under the will. A legacy does not cease to be a legacy because it issubject to some implied trusts. An executor was always in a loose sensea trustee for creditors and legatees, since he held the personal estate for •their benefit and not for his own, but such a trust does not take a caseout of the Statute. An executor cannot be deprived of the benefit of the j.Statute by showing he is a trustee; it is necessary to make out that he> 22 N. L. R. 179.= L. R. (1891) 3 Ch. D. 119 at 124.
Lucyhamy v. Petera.
is an express trustee This is a decision of the Court of Appeal, andaccordingly should be followed by us, if it is applicable. It has beenfollowed in In re Mackay, Mackay v. Gould
This decision is in keeping with section 111 of our Trusts Ordinance,No. 9 of 1917, which mentions the cases where the Prescription Ordinanceis inapplicable in respect of trusts, and adds in clause (5) “This sectionshall not apply to constructive trusts, except in so far as such trusts aretreated as express trusts by the law of England ”.
It is clear in the present case that the defendant was not an expresstrustee under the willj and he is entitled to claim the benefit of thePrescription Ordinance.'
Unfortunately the parties appear to have lost sight of the issueregarding prescription and the learned District Judge has not dealt withthat issue at all. It is not clear that we have before us all the factsnecessary for the decision of the issue, and I think it will be unsatisfactoryto decide this matter. in appeal. In the circumstances, I set aside thejudgment of the learned District Judge and send the case back for thedetermination of the issue of prescription No. 8. All parties will beentitled to produce further evidence on this issue, if they so desire.All the other issues are to be regarded as decided in favour of theplaintiffs. The plaintiffs will be entitled to the costs of this appeal, andall other costs will abide the final result.
Maartensz J.—I agree.
Set aside, case remitted.
DE SILVA et al. v. DE SILVA