Sri Lanka Law Reports
11989/ 1 Sri L. R.
■ROSLIN PERERA AND OTHERS
COURT OF APPEAL '
(?. Fi. P. PERERA. J. AND pklAKIDNAR. J.
C. A. NO. 425/79 (F).
D C. GAMPAHA 1 197/T:
Last Will – General Legacy – Specific Legacy ■ Payment of debts of testator. .
A'general legacy isUiable' pro rata for all the-debts of the state- before specific• legacies.
Special or specific legacy, is one of;a specified thing such-as a farm or a motorcar or a particular debt owed to the testator of of a specified collection of things
Dharmasiri v. Roslin Perera and Others (P. R. P. Perera. J.)
such as a library'or a flock.of sheep. A general legacyis a disposition of a classof things described as a rule by number or quantity such as a thousand sheep or£ 1000. A legacy of all the money to the credit.of the testator is a specificlegacy.
A general legacy cannot be distinguished from others of the same kind.
APPEAL from judgment of the District Court of Gampaha.
H. L. de.Silva P. C. with Gomin Dayasiri for'Petitioner-Appellant
S. C. Crossette Thambiah with V. Setvarajah and K. Jhebarajah for Respondents.
Cur. adv. vult.
May 27. 1989P. R. P. PERERA J.
The appellant above nameid is.the executor of the ’Last Will ofthe estate of the’late Parapitiya Gamaralalape .Wilbert of NO..58.'Main Street. Ja-ela. which"was duly proved in the District Court ofGampaha. The executor-appellant and the respondents to thisappeal, are the beneficiaries under.the said Last Will, In terms ofparagraph (4) thereof, the Testator devised and.bequeathed his
business assets’" specified therein to the appellant and therespondents, jointly in accordance with the shares set out in theWill subject to the payment of a loan of Rs.-100.000/- to theBank of Ceylon. By , the succeeding clauses of the. Will, theTestator devised and bequeathed to his widow, the firstrespondent, monies lying in. deposit in certain Bank Accounts, aswell as a’Life Insurance Policy, and all'his household 'goods.
In ..the course1 of the 'proceedings in.respect’of the FinalAccounts filed by the. Executor-Appellant, the parties acceptedthe correctness of'the accounts, but.a.dispute arose as regardsthe appropriation and application of the assets.for the paymentof the debts of the deceased.
The specific issue.which arose for determination was whetherthe-balance sum Of. money- Rs. 4302.18 cts: due to MercantileCredit Ltd., on a finance of the lorry bearing Registration:Noi,22Sri 6160. should be paid Out :of the assets'o’f. the Estate; For thispurpose1.’ it was "necessary for the Court to determine whetherparagraph (4) of the Last Will bearing No; 4711, where the
Sri Lanka Law Reports
119891 1 Sri L R.
Testator has devised certain assets to his heirs namely his widowand children, and his brother (which included, the lorry inquestion) could be construed as a general legacy or a specificlegacy.
It was contended by the executor-appellant that the assetsincluded in paragraph (4) were charged with the payment'of-theloan of.Rs. 100,000/- only, and that all the other debts of thedeceased were a charge on the assets devised to the firstrespondent-widow. The first respondent however contended thatall the debts were a first charge on the " business assets " andthat the assets devised and bequeathed to her were only liablefor any deficiency after appropriation of the business assets.
At the' inquiy. the following issues were adopted :
, 1. Are the business assets referred to in paragraph ' 4 ' of
. the Last Will.,.devised and bequeathed to the beneficiaries
named therein subject only to the payment of a loan of Rs.
. 100,000/-. or are they liable pro rata for all other debts as
Are the monies lying in-—
Savings Account No. 30754. Bank of Ceylon. Gaffoor
' Building.- Colombo.
Savings Account No. 5 in the Co-operative Bank, Ja-ela.
Current Account No. 67700 in National Grindlay's Bank.
.. Proceeds of . Life . -Insurance. Policy No. 311709.
. bequeathed to the widow, liable for the payment of the
other debts of the deceased, or are these assets only to
be utilised after….
exhausting of the assets mentioned in issue (1) ?
After inquiry, the learned District Judge upheld the contention. of the first respondent that the legacy relating to the businessassets (set out in paragraph ' 4 ' of the Last Will) was a generallegacy, and the-Jegacies in favour of the first respondent werespecial legacies. and.answered the. issues accordingly.
Dharmasiri v. Roslin Perera and Others (P. R. P Perera. J.)
It would be necessary therefore at this stage to. reproduceparagraph ' 4 ' of the said- Last Will which reads as follows :
" I do hereby devise and bequeath my business, assetsnamely —''.
Wijaya Stores at No. 53. St. Mary's Road, Ja-ela.
Firewood Shed .af No. 58, St. Mary's Road Ja-ela.
Lime Kiln at No. 43. St. Mary’s Road; Ja^ela, •
Wijay Stores at No: 58. Main Street,'Ja-ela.
5.. Coal Tax at No. 58, Main Street. Ja-ela.
6. Metal Works at No. 58., Main Street. Ja-ela.'
.7.. Vehicles —-.Spares and Remnants at No' 58'. Main StreetJa-ela.■ . , '
The property called Gorakagahawatte. and all the
buildings thereon bearing assessment No. 58. MainStreet Ja-ela.'
Lorry No. 24 Sri 4748
Lorry No. 24 Sri 4749
Lorry No. 22 Sri 61 60.
All monies lying to my credit, and the credit'of thebusiness at Bank of Ceylon Ja-ela, Account No. 1 62
Bank of Ceylon (Foreign Dept.) Account No'. 17242.
All these assets subject to the payment of a 'loan of Rs,100.0007- borrowed'from the Loans Department.. Bank of.CeVlon. Central Office. Colombo. I devise and bequeath unto thefollowing and in the proportions set out below. "
' Counsel for the appellant conceded that the. District Judge wasright when.he held that a general legacy is liable pro-rata for allthe debts of the -estate before any other specific legacies butcontended strongly that he has misdirected'himself when hecame to a finding that paragraph ' 4 ' of the Last Will reproducedabove was a 'general legacy. Counsel submitted that'having-. regard to the words used in the said paragraph, it was clear thatthe Testator had intended to create specific legacies. Counselurged in the circumstances that the sum of Rs. 4302.18 cts. dueto Mercantile Credit Ltd., on the finance of Lorry bearing,No. 22Sri 6160. ’should be paid cut of the assets of the estate.
Sri LankaLaw Reports
(1989) 1 Sn L. R.
Citing a passage from "The Law of Succession' by Perry. 4thEdition. Counsel urged that a specific legacy is defined as thegift of a specified thing which could be identified and isdistinguishable. Further, according to Mustoe. "The Law ofExecutors and Administrators" 5th Edition Chapter 11. 'Ageneral legacy is one which cannot be distinguished fromothers of the same kind.'
Wille, on "Principles Of South African Law". 5th Edition,supports this proposition. At page 270 of this work Willestates tHfus — "A legacy is a disposition in a will to a person.-termed a legatee of things which are described either speciallyor generally. A special or specific legacy is one of a specifiedthing such as a farm or a motor car or a particular debt, owedto the Testator'or of a specified collection of things such as alibrary, or a flock of sheep. A general legacy is a disposition ofa class of things described as a rule.by number or quantitysuch as a thousand sheep or £ 1.000. It would seem to followthat a legacy of all the money to the credit of the Testator is aspecific legacy."
Onya consideration of the principles set out above we areinclined to agrde with the submission of Counsel for theappellant, that the.property set out-in paragraph '4' of the saidlast will, constitutes specific legacies. We accordingly holdthat the learned District Judge was in error when he held thatparagraph '4' of the last will is a general legacy. We thereforeset aside the order of the learned District Judge relating to thisparticular finding. Subject'to this variation we dismiss thisappeal without costs.
PALAKIDNAR, J; — I agreeAppeal dismissed
DHARMASIRI v. ROSLIN PERERA AND OTHERS