In re Swire
In re SWIRE.
In the Matter of an Application for an Order under Section 68of the Courts Ordinance directing and appointing aDistrict Court to have and exercise sole TestamentaryJurisdiction in respect of the Property of William Swire ofLongden Manor near Shrewsbury in the County of Salop,England.
Courts Ordinance—Death of person abroad—Sole testamentary jurisdiction—Courtnot hound to grant it—-Re-sealing Ordinance—Section 68.
The Supreme Court is not bound to make an order under section 68 of theCourts Ordinance whenever it is shown that a person has died outside theIsland. The applicant for sole testamentary jurisdiction must first explainto the satisfaction of the Court why he does not adopt the special procedurelaid down by the British Courts Probate (Re-sealing) Ordinance.
In re Beresford Bell (1948) 49 N. L. R. 136, followed.
Application for sole testamentary jurisdiction. .
H. V. Perera, K. C., with Ivor Misso, for the applicant.
Cur. adv. vult.
BASNAYAKE J.—In re Swire
July 30, 1948. Basnayake J.—
The deceased William Swire died in England in March 24, 1942, leav-ing a last will and testament dated July 6, 1910, whereby he appointedhis wife Jessie Lindsay Edith Swire and his sons Douglas William Swireand Cyril George William Swire as executors. By a codicil datedFebruary 1, 1928, he appointed his daughter Noel Lindsay Fieldenand his nephew John Kidston Swire to be excutors in addition to andoo-jointly with his wife and son. The last will was proved by theexecutors so appointed the Principal Probate Registry of His Majesty’sHigh Court of Justice in England and probate thereof was grantedto the surviving executors on August 14, 1942, one of them DouglasWilliam Swire having predeceased the testator.
Tire executors have by a power of attorney dated October 20, 1947,appointed the applicant James Frederick Van Langenberg their attorneyin Ceylon to apply for and obtain from any court of competent jurisdictionin this Island a grant of letters of administration with the wills andcodicils annexed in respect of the property estate and effects in Ceylonof the deceased which consists of 165 shares of Rs. 10 each in the AgraOuvah Estates Co. Ltd., valued at Rs. 3,300.
Learned counsel for the applicant submits that although in thiscase the course prescribed by the British Courts Probates (Re-sealing)Ordinance (hereinafter referred to as the Re-sealing Ordinance) is opento the applicant, it is equally open to him to ask for an order undersection 68 of the Courts Ordinance (hereinafter referred to as section 68)directing and appointing the District Court of Colombo to have andexercise sole testamentary jurisdiction is respect of the estate of WilliamSwire.
He further submits that an executor or administrator is free to adoptwhichever course he pleases and that he is not bound to give reasonsto this Court when he elects to make an application under section 68.In fact, in the instant case learned counsel says that the re-sealingprocedure is available to him and that he can assign no special reasonfor requiring an order under section 68.
In my judgment in the case of Beresford Bell1 I held that where a personentitled to proceed under the Re-sealing Ordinance desires to obtainprobate under the procedure prescribed in Chapter XXXVIII of theCivil Procedure Code (hereinafter referred to as the Code), and with thatend in view moves for an order designating a court for the purpose ofsection 518 of the Code, the applicant must explain to the satisfaction ofthis Court why he does not adopt the special procedure prescribed by theRe-sealing Ordinance. In a subsequent application 2 the same applicantexplained why he desired to proceed under section 68, and I allowed hisapplication as his reasons seemed satisfactory.
Learned counsel for the applicant invites me to reconsider, in thelight of his submissions, my earlier decision in the case of BeresfordBell (supra). He submits that once the applicant satisfies this Court
1 (1948) N. L. R. 49 136.* (1948) 37 G. L. W. 16.
BASNAYAKE J.—In re Swire
that a person has died at a place out of the Island leaving property withinthe Island this Court is hound to make an order under section 68. Heputs his case in this way. Before the procedure for re-sealing of foreignprobates was enacted the only course open to a person who desired toobtain probate or letters of administration in respect of the propertyof a person dying outside the Island was by way of an application undersection 68. In view of the disabilities created and the penalty imposedby section 547 of the Code, he submits, there was an obligation on thisCourt to make an order under section 68, if the applicant satisfied it thata person had died outside the Island leaving property in Ceylon of orabove the value specified in that section. He says that it cannot be thatthe legislature while imposing a disability and a penalty on those whofail to obtain probate or letters of administration intended that thisCourt should have the power to refuse applications made under section68 and thereby expose such persons to the sanctions imposed by statute.Learned counsel then goes on to say that, if that was the true import ofsection 68 before the introduction of the re-sealing procedure its meaningcannot change because another procedure for obtaining probate orletters of administration has been introduced.
Learned counsel refers me- to the case of Irwin and another v. Caruthand others'1. That case does not, in my view, assist him. It decides thatsection 95 of the Probates and Letters of Administration Act (Ireland)1857, does not take away from the Court power to make a grant where there-sealing of the grant made in the country of the domicile had not beendone.
The argument of learned counsel proceeds on the assumption thatthe power given to this Court by section 68 was first created when section547 was enacted. The circumstance that the Courts Ordinance and theCode are numbered as Ordinances No. 1 and No. 2 respectively of the year1889 leaves room for such an impression. But it must be rememberedthat the power conferred on this Court by section 68 existed in earlierlegislation before the Code was enacted, first under section 6 of OrdinanceNo. 12 of 1843 and later under section 77 of Ordinance No. 11 of 1868.
One can find no authority for learned counsel’s submission in section 68itself. The relevant portion of it reads :
“ When any person shall have died at any place out of the Islandleaving property wdthin the Island, it shall and may be lawful for theSupreme Court, or any Judge thereof, to make order directing andappointing such District Court as to the said Supreme Court, or anyJudge thereof, shall appear most expedient, to have and exercisesole testamentary jurisdiction in respect of the property of the personso dying
The words “ it shall be lawful ” have been the subject of considerablejudicial discussion extending over a number of years. It has beenrepeatedly stated that those words are potential and never in themselvessignificant of any obligation, that they are enabling and empowering
(1915) 32 T. L. R. 193.
BASNAYAKE J.—In re Sioire
words. In my view the clearest exposition of these words is to be foundin the speech of'Lord Cairns in the case of Julius v. Lord Bishop of OxfordI quote his words in extenso as they throw considerable light on theinterpretation of not only section 68 but also other sections of the CourtsOrdinance in which those words occur.
“ The words ‘ it shall be lawful ’ are not equivocal. They are plainand unambiguous. They are words merely making that legal andpossible which there would otherwise be no right or authority to do.They confer a faculty or power, and they do not of themselves do morethan confer a faculty or power. But there may be something in the natureof the thing empowered to be done, something in the object for whichit is to be done, something in the conditions under which itis to be done, something in the title of the person or persons for whosebenefit the power is to be exercised, which may couple the powerwith a duty, and make it the duty of the person in whom the power isreposed, to exercise that power when called upon to do soAnd the words ‘ it shall be lawful ’ being according to their naturalmeaning permissive or enabling words only, it lies upon those, as itseems to me, who contend that an obligation exists to exercise thispower, to show in the circumstances of the case something which,according to the principles I have mentioned, creates thisobligation. ”
It appears from the above quotation that the words “ it shall belawful ” are, as I have stated earlier, permissive or enabling. Those whocontend that an obligation exists to exercise the power conferred by suchwords must show in the circumstances of the case something whichcreates the obligation. The applicant has failed to show that there issuch an obligation. In fact his position is that an order under section 68is not necessary for the effective discharge of his duties. But he claimsthat he is, nevertheless, entitled to ask for and obtain an order undersection 68. I think this Court is entitled to ensure that its powers arenot unnecessarily invoked. It must be satisfied, before exercising itsjurisdiction under section 68, that an order thereunder is necessary.For the reasons I have given T refuse his application.
I was invited by learned counsel to reserve this matter for the decisionof two or more judges. He tendered from the bar two affidavits swornby two senior proctors of this Court wherein they state that till myjudgment in In re Beresford Bell (supra) the right to proceed underwhichever Ordinance an executor or administrator chose had not beenquestioned. A practice cannot over-ride the statute which confers onthis Court its powers. The material placed before me does not show thatthe question is one of doubt or difficulty, nor am I satisfied that thequestion is one that I should reserve under section 48 of the CourtsOrdinance.
1 (1880) 5 App. Cos. 214 at 222.