Fonseka v. Fonseka.
1938Present: Moseley and Wijeyewardene JJ.
FONSEKA v. FONSEKA
S.C. 148—D. C. Colombo, 5,440.
Legacy—Payment due at marriage—Delay due to lack of 'funds—Claim for
by his last will, directed his trustees to fund the income of severalestates and, out of the fund created, to pay each of his daughters onmarriage a sum of ten thousand rupees in each, and a further sum of fivethousand rupees for the purchase of jewellery. The testator died inApril, 1926. The plaintiff, one of the daughters, got married in October,
At the marriage the defendants, the trustees, raised a loan andpaid her the legacy of_ten thousand rupees due to her. In November,
and January, 1932, the defendants paid her two instalments ofthousand rupees each out of the sum of five thousand due for the purchaseof jewellery. The plaintiff claimed in the plaint a sum of Rs. 6,947.08on the footing that the sum of Rs. 5,000 became payable to her on thedate of mariage and that the defendants were liable to pay not only thebalance sum of Rs. 3,000 but also interest at 9 per cent, from October,1926. It was established that the defendants had no funds after thepayment of debts, sufficient to pay the legacy due in respect of thepurchase of jewellery till 1935.
Held, that the defendants were not liable to pay interest on the legacy.
Where the obligation to pay a legacy is suspended until an uncertaindate or an uncertain condition (e.gr., marriage of the legatee) the executorcannot be put in mora except by demand, and interest can be claimedfrom the date of mora.
Lack of funds may be pleaded by the executor as an excuse for morain which case he is not liable to pay interest.
PPEAL from a judgment of the District Judge of Colombo. Thefacts are stated in the head-note.
H. V. Perera, K.C. (with him N. Kumarasingham and H. A. Chandrasena),for plaintiff, appellant.—According to law, the plaintiff is entitled tointerest on Rs. 5,000 from the date of marriage. The interest can beclaimed both under the Roman-Dutch law and the English law. Section554 of the Civil Procedure Code also specifically provides for it. The factthat no money was available at the time payment was due is no defence.The District Judge thinks that if in the fund mentioned in the will therewas no money available the legacy need not be paid on the date ofmarriage. Interest is payable from the date fixed for the payment of thelegacy—Steyn on the Law of Wills (1935) p. 86; Van Leeuwen’s CensuraForensis (Barber, and. Macfadyen’s Translation), pt. 1., bk. IV., Ch. 4,ss. 15, 18 and 21; 2 Nathan (1904 ed.), p. 612, Art. 812; SinnathambyVannithamy v. Thamby Ramanathan1; Annamalai Chettiar v. Thornhill ~.Van Leeuwen’s view is adopted in Bell’s South African Legal Dictionary(2nd ed.), p. 364 in connection with the word mora. See also Kotzefs VanLeeuwen (1921 ed.), voL I., p. 400; Morice’s English and Roman-DutchLaw (2nd. ed.), p. 96.
As for the English law, the rule of English law is embodied inOrder 55, Ride 64 (1937, Annual Practice p. 1196. See also Williams onExecutors, vol. II., pp. 1153, 1154, 1158; p. 917 deals with the position of
> (1936) 1 C. L. J. Rep. 20.* (1936) 36 K. L. R. 358.
Fonseka v. Fonseka.
legacies to be 'given out of a particular fund—if the fund gets exhausted,the legacy becomes and will rank as a general legacy and has to be paidout of the general estate. Interest is payable from the date fixed by thewill for the payment of the legacy—Wood v. Penoyre1; Pearson v. Pearsonet al.’. The decision in Lord v. Lord * has been misapplied by the DistrictJudge.
Nine per cent, interest is provided for by Ordinance No. 5 of 1852,section 3 in a case like this.
L. A. Rajapakse (with him M. M. I. Kariapper), for defendants,respondents.—The fund out of which the legacy was to be paid wasexhausted. The delay, therefore, in the payment of interest was inevit-able. Mora is used throughout in the texts in a special sense. It doesnot mean delay simpliciter. Interest is payable only if the delay was wilfuland culpable. The difference that exists between Roman-Dutch law andEnglish law right throughout is that in the former the intention andmental element also count. The delay has to be wilful, and mora or nomora is a question of fact—Buckland’s Roman Law (1921 ed.), pp. 546,551 and 552; Voet (XXII. 1, 24) ; Lee on Roman-Dutch Law 1915 ed.),p. 229.
There is a distinction between mora ex persona and mora ex re—Voet’sCommentaries (Horwood’s Translation) bk. XXII., tit. 1, ss. 1, 7, 10, 24 27,29. Formal demand by the creditor is necessary and interest can accrueonly from the mora which follows—Bell’s South African Legal Dictionary(2nd. ed.), p. 364 ; 2 Nathan (1913 ed.), p. 678 ; Voet 22 (p. 34 of Horwood’sTranslation) ; Estate Lloyd v. Estate de Jong et aV; the article appearingin 1919 S. A. L. J. p. 31 ; Labuschagne v. Schoeman*; South African BibleUnion v. Estate Schnugh et al.°; Steyn on the Law of Wills (1935 ed.), p; 87 ;Pothier on Legacies 2.10.
In the absence of a special agreement, the executors are liable to payinterest only from the time it was possible for them to pay the legacy.Sufficient funds should come into their hands and interest is payable onlya tempore morae—Wright v. Wright7; Stephen’s Estate v. Stephen’s Estate';Kotze’s Van Leeuwen (2nd ed.), vol. II., p. 62.
Legacies are payable only after debts have been paid in full—1 Maas-dorp (5th ed.), p. 206.
The rights and duties of an executor may be governed by the Englishlaw, but in the substantive law of inheritance the Roman-Dutch law isapplicable—de Silva et al. v. Silva *; Mohamed Cassim v. MohamedHassen1'1; Silva v. Silva et al.a; de Kroes v. Don Johannes72. Evenapplying the English law, interest is not payable in a case like this—Lord v. Lord (supra) .
The rule in England that interest should be paid in case of intestacy isbased on a statute of Charles II. By analogy the Chancery Courts ,extended it to wills. Thus the High Court fixed the rate at 4 per cent,by Order 55. In Ceylon we have no such rule.
1 (1807) 13 Vesey (Jnr.) Rep. 325 (a).7 (1873) 3 Buchanan's Rep. 10 at 12.
3 (1802) 1 Sch. d Lcf. 10.8 (1908) 25 S. C. 104.
3 11867) L. R. 2Ch. A. C. 782.8(1938) 18 C. Law Rec. U.
* (1908) 25 S. C.136.10(1927) 29 N. L. R. 89.
3 (1915) C. P. D.19.11(1907) 10 N. L. R. 234.
8 (1908) 25 S. C.717.»2(1905) 9 N. L. R. 7.
WUEYEWARDENE J.—Fonseka v. Fonseka.
Section 554 of the Civil Procedure Code merely gives a right against theexecutor personally for monies wilfully kept back in his hands.
H. V. Perera, K.C. in reply.—Mora means merely default. It does notinvolve any moral element. Demand is of very little importance formora to commence—Lee on Roman-Dutch Law, p. 403. As regards thedistinction between mora ex persona and mora ex re, interest becomesowing on a non-judicial default in the special case of a legacy—Cens. For.p. 28, Art. 18 and the footnote ; Voet 22, Art. 12.
Lord v. Lord (supra) has been misapplied by the District Judge. In reYates1 is in point. There is another case where interest was awardedfor one year from the date of testator’s death, regardless of the factwhether the fund out of which the legacy wasf payable permitted it ornot—In re Wolford *.
Cur. adv. vult.
December 14, 1938. Wijeyewardene J.—
This is an action filed by a legatee against the executors of the last will(D 4) of S. R. de Fonseka, Mudaliyar.
The testator made his last will on February 8, 1923, and died on April12, 1926. The defendants who were the executors and trustees named inthe will, proved the will and obtained probate on December 3, 1929.
The plaintiff who is a legatee under the last will and the first and seconddefendants are children of the testator. The third defendant is marriedto a sister of the plaintiff?
By his last will the testator directed the trustees to manage, cultivateand improve certain specified estates for five years from the date of his-death. He then gave further directions under the following clauses ofthe will:—
Clause 28.—I do hereby further charge and direct my said trusteesto fund and deposit in any Bank in Colombo all the nett income rentsand profits of the said several estates and properties and out of suchfund to pay (1) my testamentary expenses and estate duty, and (2) thelegacies aforesaid.
Clause 29.—I do hereby also will and direct that out of the fund soaccumulated my said trustees shall pay to each of my unmarrieddaughters on her marriage with such consent and approval as aforesaid,a stun of ten thousand rupees in cash and a further sum of five thousandrupees for the purchase or making of jewellery for, each of them andmy said trustees shall also expend a sum not exceeding two thousand,rupees for expenses in connection with each such marriage. The saidsums shall be retained by them and so far as they are not applied to thepurposes aforesaid shall fall into my residuary estate referred to inclause 34.
The plaintiff got married on October 25, 1926, “ with the consent,and approval ” of the first and second defendants as required by D 4..On the occasion of her marriage the defendants admittedly paid her-Rs. 10,000 and met “ the expenses in connection With her marriage ”. On
• (1907) 96 L. T, 758.* 69 L. T. 397. .
WIJEYEWARDENE J.—Fonseka v. Fonseka.
November 18, 1927, and on January 26, 1932, the defendants paid theplaintiff two instalments of Rs. 1,000 each out of the sum of Rs. 5,000 dueto her “ for the purchase or making of jewellery
The plaintiff claimed in the plaint a' sum of Rs. 6,947.08 on the footingthat the sum of Rs. 5,000 became payable to her on the date of hermarriage and the defendants were therefore liable to pay not only thebalance sum of Rs. 3,000 but also interest at 9 per cent, from October 26,1926. This amount is shown in detail as follows : —
Principal sum5,000 0
Interest on Rs. 5,000 from October 25, 1926, to
November 18, 1927 at 9 per cent…479 50
Paid Rs. 1,000 on November 18,1927.. 1,000 0
Interest on 4,479.50 at 9 per cent, from Novem-ber 18, 1927 to January 26, '1932..1,688 10
Paid Rs. 1,000 on January 26,1932.. 1,000 0
Interest on Rs. 4,479.50 at 9 per cent, fromJanuary 26, 1932 to June 24, 1936..1,779 48
The defendants filed answer admitting liability in a sum of Rs. 2,029.20.They claimed the right to set off Rs. 970.80 alleged to have been spent bythem in excess of the sum of Rs. 2,000 set apart under D 4 for “ expensesin connection with the marriage ” and denied the right of the plaintiff toclaim any interest. During the pendency of the case the defendants paidplaintiff the balance sum of Rs. 2,029.20 which the plaintiff acceptedwithout prejudice to her rights in the action.
The learned District Judge held that the defendants were entitled toset off a sum of Rs. 643.55 against the plaintiff’s claim and were not liableto pay interest to the plaintiff.
He entered judgment for the plaintiff for Rs. 327.25 with legal interestfrom date of action and ordered the plaintiff to pay half the taxed coststo the defendants. The present appeal has been preferred byrthe plaintiff.There is no appeal by the defendants against the findings of the DistrictJudge.–
There is a conflict of evidence with regard to the purposes for which thesum of Rs. 970.80 claimed as a set off in the answer was spent. Thedefendants state that this sum was spent in connection with the plaintiff’smarriage while the plaintiff contests that position. Though the balance•of evidence appears to be in favour of the defendants, it is not necessary"however to express an opinion on this aspect of the matter in view of the
WIJEYEWARDENE J.—Fonseka v. Foaseka.
decision I have reached that in any event the defendants are not entitledto set off this sum or any part of it—as allowed by the District Judgeagainst the claim of the plaintiff.
In the answer filed by the defendants there was no averment that thisexcess expenditure was incurred at the request of the plaintiff or that theplaintiff, at any time, agreed to such amount being deducted from thelegacy of Rs. 5,000 due to her. At the trial the defendants sought toestablish the liability of the plaintiff for this stun on the basis of such arequest coupled with an agreement. The evidence led by the defendantson this point was very meagre. The first defendant in the course of hisevidence referred in very general terms to the instructions given byplaintiff that moneys due on orders placed by her in connection with hermarriage should be deducted against her share of the estate. The firstdefendant himself has very frankly admitted that he had no personalknowledge of “ the dealings between the executors and the various heirsas that part of the work was done ” by the second defendant who is nowaway in England. On a careful consideration of his evidence on the point,I think it will be unfair to the first defendant to conclude that he intendedby his evidence to establish knowledge on his part of a specific requestmade by the plaintiff to incur such expenditure or of an agreement by herto the deduction of such excess amount from her legacy. The plaintiffon the other hand has denied on oath that she made such a request or gavesuch an undertaking. It is not improbable in view of the close relation-ship between the parties that the excess expenditure if any was incurredby the plaintiff's brothers without any intention of recovering it from theplaintiff. The pleadings in the case as well as the documents D 5, D 6,D 7 and P 12. corroborate the plaintiff’s testimony. The following passageoccurs in letter D 5 of September 10, 1935, written by the defendants’proctors to the plaintiff giving details of the various payments made toher under clause 29 of the last will: —
“You will see that the expenses incurred in connection with yourmarriage exceed the amount provided therefor by the will by Rs. 970.30and this amount is now being deducted from the sum due to you underclause 29
By D 5 of October 1, 1935, the plaintiff replied.—
“ With regard to the marriage expenses the executors, had no rightto spend over Rs. 2,000. They had no authority either from me or myhusband to spend anything over Rs. 2,000. In fact both of us werequite against any sort of reception. I decline to allow the executors toclaim a sum of Rs. 970.80 from me ”.
Instead of joining issue with the plaintiff and reminding her about heralleged request and agreement the defendants’ proctor chose to state inD 7 of November 21, 1935—
“You will find, oh reference to the intermediate account and ourletter of September 10 last, that out of the sum of Rs. 2,000, whichthe executors were authorized, and directed to expend, they haveexpended Rs. 636.56 on your wedding reception. In respect of thebalance sum of Rs. 1,363.44 therefore, which has not been applied to
WIJEYEWARDENE J.—Fonseka v. Fonseka.
the purpose indicated by the testator, the executors have decided thatthis sum “ shall be retained by them, and shall fall into the residuaryestate referred to in clause 34 ”,
The defendants’ proctors prepared a statement of facts P 12 forsubmission to Counsel whose opinion was sought with regard to the modeof payment of the legacies and the administration of the estate in general.In that statement a sum of Rs. 3,000 was given as due to the plaintiffunder clause 29. It is difficult to understand why a sum of Rs. 3,000 andnot a sum of Rs. 2,029.20 was. mentioned if the plaintiff had agreed to herlegacy being reduced by the excess expenditure of Rs. 970.80.
I hold that the defendants have failed to discharge the burden of proof.in respect of issue 3 which raises the question of the plaintiff’s indebted-ness to the defendants in the sum of Rs. 970.80.
I shall set out briefly the facts connected with the plaintiff’s claim forinterest before I discuss the questions of law arising in respect of thatclaim.
At the time of the testator’s, death his debts secured and unsecuredamounted to about Rs. 110,000 while the only cash that was availablewas a sum of about Rs. 1,500 in a bank. The fund that was establishedby the executors under clause 28 of the will amounted to onlyRs. 40,904.37 at the end of the period of five years. Some of the purposesfor which this fund had first to be utilized were—
Estate duty and other testamentary expenses ..42,378 53
Funeral expenses, &c…..2,379 28
Executorship expenses..7,058 91
It will thus be seen that it was not possible for the defendants to havemade to the plaintiff the payments required by clause 29 of this fund• when the plaintiff got married about, six months after the death of herfather. In fact, the evidence shows that the defendants had to negotiatecertain loans in order to pay plaintiff the cash dowry of Rs. 10,000 andmeet the expenses in connection with her marriage. The defendants,however, were able by a judicious administration of the estate to realizefrom the sale of a property which formed part of the residuary estatefunds which after the discharge of the debts of the estate left sufficientmoney in their hands in 1935 for the payment of the sum due to theplaintiff on account of the jewellery. The evidence establishes clearlythat it was not possible for defendants to make the payment out of thefunds of the estate prior to 1935.
The plaintiff’s claim for interest is based op the contention that shebecame entitled to recover Rs. 5,000 on account of jewellery, on October:25, 1926, and that she is therefore entitled to claim interest from theestate as from that date whether or not the estate had sufficient funds tomake a payment on that date. This raises a difficult question of law.
I agree with the learned District Judge that the liability of the■defendants to pay interest should be decided according to the principlesof Roman-Dutch law. Unfortunately, it is not only somewhat difficultto reconcile the various opinions of the Roman-Dutch law writers on the■question, but it is at times even difficult to harmonize the views expressedTby the same writer on the different aspects of the question.
WIJE Yti WARDEN* J.—Fonseka v. Fonseka.
' Under the Roman law interest could be claimed in stricti juris actionsonly if there had been a stipulation. A mere pact sufficed only in a fewexceptional cases, e.g., nauticum jenus, loans by cities, loans of fungiblesother than money and loans by bankers. Apart from any agreement,interest became due by law in certain transactions, e.g:, in debts to minors,in debts to the Fiscus and in some cases of dos. There was a further classof transactions in which without any agreement interest became due bylaw, a tempore morae. They were bonaefidei transactions and claims forcertain forms of legacy.
In discussing the doctrine of Mora, Buckland states in his text book ofRoman Law (1921 ed. at p. 546) :—
. Mora is failure to discharge a legal duty on demand made at theproper time and and place. This is sometimes called mora ex persona, asdistinct from mora ex re, where dies interpellat pro homine. But thislatter expression is unwarranted. There was no mora ex re in somecases, some of the effects of – mora were produced where there was, instrictness, no mora, e.g., liability to interest on price from delivery ofgoods sold. The expression is suggested by a test which says thatwhere there is no one from whom the demand can be made, there is nomora in re. But this case and that of a defendant who holds a thingby theft or similar delict, who is said to be always in mora, seems tohave been the only cases in which demand was not necessary.
The delay must be wilful and wrongful: there was no mora if thedebtor was unable, through no fault of his own, to be at the place, or ifhe had reasonable grounds for doubting that the debt was due, provided,in this case, he was ready to litigate at once. Mora or no mora was aquestion of fact rather than law : the judex must decide it on all facts.The Roman-Dutch law effected certain changes in the Roman law withregard to the liability to pay interest. According to Voet (Voefs Com-mentaries, bit. XXII., tit 1, Horwood’s Translation, paras. 11 and 12) thedifferences which existed between bourn fidei and strict juris matters werefor the most part disregarded and the rule was that interest was not to bedecreed solely because of extra-judicial mora either in bonae fidei or instrict juris matters, but in both matters it should be granted after litiscontestaiio. Voet proceeds to say that there are however, “ by the presentpractice of the Courts ” some cases in which a defendant is decreed to payinterest solely- because of extra-judicial mora and after giving a fewinstances, a^ds-^-
“ Interest may be claimed after extra-judicial mora in an action fora legacy .. because of favour shown to the last wishes of
testators the fulfilment of which is a matter of public concern ”.
Voet defines mora as culpable delay in making or accepting performanceand says it is in the discretion of the Court to decide whether mora hasoccurred in any transaction since “ it is a difficult thing to define He(divides mora into mora ex persona and mora ex re and says : —
Mora ex persona is brought about when the creditor demands fromthe debtor performance at a suitable time and place and the latter doesMW/33
WIJEYEWARDENE J.—Fonseka v. Fonseka.
not perform his part …. It can be produced by a singledemand legally made, whether judicial or extra-judicial provided thatthe creditor keeps pressing the debtor.
Mora ex re occurs without any demand, being brought about by lawwithout any human act …. It is not only men who makedemands but the law or even a date may demand instead of a man,provided only that a fixed date was made a term in the obligation.For if the obligation is suspended until an uncertain date or an uncertaincondition the better opinion is that the debtor cannot be put in morctexcept by a demand made through human agency …. Thecoming into existence of the condition has only this result that he who sofar was not a debtor begins to be one, and as in unconditional debt, sotoo in this, which has now become unconditional and sprung intoexistence, it is equitable that a demand be made …. Even inthose cases in which more ex re does occur, texts do state that there is -sometimes no mora so long as there is no more ex persona arising out of ademand made. V<2.e?s Commentaries, bk. XXII., tit. 1, Horwood’sTranslation paras. 24, 25, 26 and 27.)
The Roman-Dutch law jurists recognized the fact that even a partywho would otherwise be in mora could plead that he is . not guilty of morain the legal sense in view of certain extenuating – circumstances. Voetsays: “ Still it sometimes happens that mora (delay) deserves to beexcused to this extent that it. is not everything causing delay that can becalled mora (in the technical sense) . ..”
“ What if some supervening accident or Some act of the creditor himselfmakes very difficult what was easy for the debtor when he bound himselfby the contract, e.g., if a slave sold or promised falls into the hands of theenemy ? It would scarcely be just to the debtor to be liable on theground of mora brought about by some obstacle of this sort. The reversewould hold if the difficulty had been caused by his negligence or if at thetime when the liability was undertaken, the difficulty of fulfilment wasalready in existence and known to the debtor. For then the debtor hasonly himself to thank in that pf his own free will he laid the burden uponhimself since difficulty of performance does not avoid a stipulation”.(Voet’s Commentaries, bk. XXII., tit. 1, Horwood’s Translation, para. 29).
Nathan sets out the limitations to the maxim dies interpellat pro homineas follows: —
"Mora ex re takes place without the making of an interpellation ordemand upon the debtor—that is .to say, it is considered to happen bymere operation of law, without the intervention of any person. Fromthis arises the maxim dies interpellat pro homine. The maxim applieswhere a certain date has been fixed upon for performance of the obli-gation. If no such date has been fixed the creditor must make theusual formal demand; and this will be the case where performance bythe debtor depends upon the fulfilment of a certain condition by thecreditor”—vide Nathan’s Common Law of South. Africa (1913 ed.),vol. 11., p. 676).
In "The Law of Wills in South Africa” (1935 ed., p. 87), Steyn says:the rule that interest runs on a debt only from the time that the delator
WUEYEWARDENE J.—FonseJca v. Fonseka.
is in mora applies to legacies and interest on a legacy of a sum of moneycan therefore, only be claimed from the date of demandIn his "Introduction to Roman-Dutch Law” (2nd ed., pp. 405, 406)Professor Lee deals with the question of mora-interest and says:—
“ We have seen that if B owes A a sum of money and, when paymentfalls due, fails to pay, A may claim the amount due with interest evenwhere there is no agreement for interest in the contract. This ismora-interest. It begins to run from the time when the debtor is indefault; and, therefore, where demand is necessary, from the date ofdemand. But what constitutes demand for this purpose ? Somewriters consider an extra-judicial demand sufficient; others require ajudicial demand, i.e., a writ of summons; other? postpone the currencyof interest to the moment of litis contestatio (Grot. 3.1.46 and Groene-wegen ad loc.; V. d K. Th. 483 and Dictat. ad Gr. Zoc. cit.), which inmodem practice is reached when the pleadings are closetj and mattersare at issue between the parties. Meyer's Exors v. Gericke (1880) Foordat p. 18, per de Villiers C.J. In Victoria Falls and Transvaal Power Co.v. Consolidated Langlaagte Mines (1915) A.D. at p. 31 Innes C.J. said1 The Courts of Holland would seem to have adopted the rule that in allcases where liability for interest depended upon the existence of moraex persona the stage of litis contestatio constituted that due demandfrom the date of which more existed and interest began . . . .’ Itmay be that close investigation would reveal a tendency on the part ofSouth African Courts to depart from the Dutch rule and to regard theletter of demand or failing that a summons as marking the inception ofliability for interest. ”
In Labuschagne v. Schoeman, N.0.1 Searle J. said : “ There are Roman-Dutch authorities from which it may be gathered that where a specificdate is fixed under a will at which a sum of money is to be paid, there isno mora ex re if the money is not paid on that date, quite independentlyof whether any interest has been earned or not. No case has beenquoted, however, where that has been actually followed with regard tolegacies, but the Court has rather seemed to throw out that the legateeshould claim such interest as has actually accrued to the estate ….There are authorities .which certainly seem to point in the direction thatwhere the testator has said nothing about interest in his will, and whereit is not shown, that there any interest has accrued, the interest cannot beexacted from the estate. ”. The decision of Hopley J. in South AfricanBible Union v. Estate Schriugh and another * appears to suggest that alegatee entitled to a legacy on marriage could claim interest only fromthe date of demand. He also refers to the fact that the executor in thatcase had funds from which the payment could have been made.
In Estate Lloyd v. Estate de Jong and others' a testator bequeatheddifferent sums of money to several legatees on respectively attaining theage of 25 years and “ subject to the payment of ..such legacies ” hebequeathed the residue of his estate to his wife. The question raised waswhether the legatees were entitled to claim interest from the death of the
(1925) Sooth African Law Reports, Cape Provincial Division 19.
(2908) 25 Cape Supreme Court Reports 717.
(2908) 25 Cape Supreme Court Reports 1SS.
548_ WIJEYEWARDENE J.—Fonseka v. Fonseka.
testator. Answering the question in the negative, de Villiers C.J. saidin the course of his judgment: —
The general rule seems to be correctly stated by Pothier (on LegaciesC. 2 S 10) as translated by Van der Linden “ when the legacy consistsin a sum of money, the interest is due to the legatee from the day ofdemand, provided he did not make the demand before the sum wasdue”. In other words it is delay on the part of the heir in paying alegacy which entitles the legatee to claim interest, and if there is nodelay, then there is no interest.
The principles that appear to be deducible from the various authoritiesoh Roman-Dutch law examined by me and relevant to the present caseare—
Where the obligation to pay a legacy is suspended until an uncertain
date or an uncertain condition (e.g., marriage of the legatee), theexecutors cannot be put in mora except by demand.
That such demand, if extra-judicial should be more or less of a
That interest runs only from date of mora.
That in certain circumstances lack of funds may be pleaded as an
excuse by the executors for their mora in which case the estatewill not be liable to pay interest.
The Civil Procedure Code, 1889, contains certain provisions which appearto throw some light on the question whether the estate will.be liable topay interest if the delay in the payment of the legacy was due to want offunds. While section 720 (b) gives a legatee the right to petition a Courtasking for an order directing an executor or administrator to pay thelegacy, section 721 enacts that where the Court receiving the petitionis not satisfied that there is money applicable to the payment of thelegacy, the Court shall dismiss the petition.
When the present action came up for trial certain issues were framed.The only issues dealing with the liability of the defendants to pay interestwere issues 1, 5, 6. The learned District Judge ruled that the onus ofproof in respect of these issues was. on the plaintiff and the plaintiff’sCounsel then submitted to Court that he would present his argument onthose issues without calling any evidence. The defending Counsel calledthe first defendant to give evidence on the issues on which the burdenwas ruled on him. When the case, for the defendants was closed, theplaintiff’s Counsel called evidence in rebuttal and in the course of givingevidence on matters relevant to other issues, the plaintiff in very generalterms and the .plaintiff’s husband spoke of a demand having been madefrom the executors.,
I do- not think it would be fair and just to the defendants to decidethose issues except on the basis oh which the plaintiff’s Counsel agreed topresent his case. If the plaintiff’s Counsel led evidence on issues 1, 5,•and 6, the Counsel for the defence would have had an opportunity ofcombating such evidence and proving that either the demand was notproperly made or that certain circumstances existed which freed themfrom liability to- pay.
There is also another fact that may be taken into consideration. Thelast will D 4 was made in 1923. Though for certain purposes a will is no
FERNANDO AJ.—IragunatheT v. Ammal.
doubt said to speak from the death of the testator, I think the date of1923 cannot be ignored in considering whether the testator could havereasonably anticipated that the plaintiff who had consistently expressedher desire to take the veil would get married a few months after his deathin 1926 or that at such time there would be a difficulty in paying thelegacy to the legatee. On the evidence led in this case it has been provedthat until 1935, it was not possible for the executors to pay the legacy.There is no evidence to justify me in holding that, in the words of Voet“at the time liability was undertaken, the difficulty of fulfilment wasalready in existence and known” to the testator.
I hold therefore that the defendants are not liable to pay interest.
I set .aside the judgment of the District Judge and direct that decree beentered for the plaintiff for Rs. 970:80 and legal interest from date ofaction to date of payment. The plaintiff will be entitled to half the taxedcosts of the trial in the District Court. I make no order as to the costs of
Moseley J.—I agree.
FONSEKA v. FONSEKA