017-NLR-NLR-V-07-LUCIA-GUNERATNE-v.-DE-ALWIS.pdf
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1902.Qtiober 2and 3.
LUCIA GUNERATNE v. De ALWIS.
C. R., Colombo, 19,825.
Jurisdiction of Court of Bequests—Testamentary suit in District Court—Actionin Court of Requests by legatee against executor of executor for recovery ofinterest of money due to him—Value of claim—Liability of executor ofexecutor.
Where a testator bequeathed a share (valued at Bs. 1,800) of his estate 'to a person, and testamentary proceedings were pending in the DistrictCourt,—
Held, that it was competent to the legatee to raise in the Court ofBequests an action against the executor of an executor for the rents andprofits of his share due to him for certain months, aggregating in valueBs. 213; and that in the absence of any proof that one of the original. “executors of the testator was still alive and officiating, the defendant wasresponsible for the money claimed.c
T
HE plaintiffs in this case sued the defendant to recoverRs. 213 under the following circumstances: —
'One Cornells' de Silva died in 1880 leaving a last will, bywhich, among other bequests, he bequeathed one-eighth of theresidue of his estate to his niece Lucia, who’ was married in com-munity to the plaintiff. 1 He directed by the will that her shareshould be- under the control of the executors, who were required topay the income, interest, and profits that (should be derived there-from.
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One David de Alwis was one of the executors of the said willproved in testamentary suit No. 4,227 C of the District Court ofColombo, and duly managed and controlled the whole estate. Hefiled final account in the said case, but retained the one-eighthshare that fell to the said Lucia as directed by the will.
According to the final account, Lucia (first plaintiff) was entitledto the interest on a sum of money, and one-eighth share of rentsand profits accruing from the premises No. 147, Kollupitiyaroad, Colombo, and from premises Nos. 14 and 15, Kotte road,Colombo.
David de Alwis sold the above-mentioned properties and retainedthe purchase amount, and paid the plaintiff the interest on thesaid purchase amounts until he (David de Alwis) died in 1901.The defendant was then appointed executor of David de Alwis,but failed to pay the interest on the amounts retained by Davidde Alwis.
The plaintiff sued the defendants as executor of David de Alwisto recover the interest on the said money due to them by the willof the said Comelis de Silva.
The Commissioner (Mr. H. White)' dismissed the plaintiff’saction by the • following judgment:—“I am of opinion that thisCourt has no jurisdiction to try this action, as it will be an en-croachment on the exclusive testamentary jurisdiction of theDistrict Court, and also that no ground is afforded by the framingof this action for a final decision upon the matter in dispute,which really is plaintiff’s one-eighth share of the property worthBs. 1,865.58, a matter beyond the jurisdiction of this Court.
“ This being my view, it is unnecessary for me to enter into thequestions whether plaintiffs should sue the surviving co-executorsof Comelis de Silva’s will, or whether- they are right in suing theexecutors of a deceased co-executor. I. hold that this Court has nojurisdiction, and dismiss the action with costs.”
Plaintiffs appealed. The case was argued on the 2nd October,1902.*
H. Jayawardene, for appellants.—It is true that the one-eighthshare of the lands out of which thd present claim arises ,is worthBs. 1,865, but the first claim is for Bs. 213, being interest and rentsdue for certain months only not paid to the appellants. Fernando v.tSoysa, 2 N. L. R. 40, amply bears out^ the proposition that, evenwhen a testamentary suit is pending it is competent to a legateeto claim in a separate action what is due to him. Here the testa-mentary suit is not 'pending, *being' closed after final accountfiled.
1902.'
October 2and 2.
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1002.October 2and 3
Sampayo, for respondent.—In law the defendant is not liableto pay, because the other executor of the testator is alive. Theexecutor of an executor cannot be sued. He does not representthe original testator so long as there is another executor of theoriginal testator living. The Commissioner has not consideredthis point. There were three executors; two were dead and thethird is insolvent, it is true, but he is alive. There is a specialtrust created by the will, which the executor of an executorcannot take up. Williams on Executors, p. 829; Be Baban(I C. L. R. 41); Ekanayaka v. Appu (3 N. L. B. 350); 2 Browne387.
H. Jayawardene, for appellant.—The effect of the authoritiescited is only to show that other remedies are open to the res*pondent. They do not disprove that the remedy he is at presentpursuing is not available to him. There is no special trust underthe will. Fernando v. Soysa is authority that the pending oftestamentary proceedings is no bar to an action like the present.,
Cur. adv. vult.
3rd October, 1902. Moncreiff, A.C.J.—
Cornelis de Silva died in 1880, leaving a will by which, heappointed three executors. One of the provisions of the will is tothe following effect:—“ It is my will .and desire that the one-eighth share to which my daughter Louisa de Silva, wife ofCharles de Alwis of Gorakana, shall be entitled under this my willshall not, nor shall the interest and income to be derived there-from, be liable to be seized and sold in execution of her debts orfor the debts of her husband, but the same shall be under thecontrol of my said executors, who shall invest it in the purchaseor in the mortgage of real property and pay to my said daughterduring her lifetime the income, interest, and profit that shall bederived therefrom, and after her death the said one-eighth shareor the moneys and property which it shall then represent orconsist of, and all the accumulated income and interest, shall bedivided by my said executors equally ariiongst my children.” t
The management of this property was left entirely in the handsof Pavid de Alwjs, one of the executors, and he duly paid to thefirst plaintiff tlfe income 'to which she was entitled by virtue of'the will of Cornelis de*Silva. David de Alwis died in April, 1901,leaving a will by which < the defendant was appointed executor,and the defendant was granted probate. When the plaintiffapplied to him for the interest due to her, he declined to haveanything to do with her*. Hence this action.
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The learned Commissioner has dismissed the 'action, as 1understand, upon two grounds. First, he says that his Court hasno jurisdiction, that the value of the property greatly exceeds hisjurisdiction. The plaintiff, however, is only suing for Bs. 213, viz.,interest due to her from a capital sum or property in which shehas only a life interest. L think the Commissioner is mistaken onthat point. Then it was said the Court of Bequests had nojurisdiction, because the plaintiff should have gone to the Courtwhere the proceedings relating to the will of Cornelia de Silvahad taken place.
It seems to me clear that the Court of Bequests' has jurisdictionbecause in the case of Fernando v. Soysa, reported in 2 N. L. R. 46,it was pointed out that an action for a legacy still lies in spite ofthe provisions of the Civil Procedure Code, and Chief JusticeBonser was at pains to quote from Justice Thomson's Institutesthe remedies which a legatee had before the Civil Procedure Codecame into operation. The first of the remedies is a personal actionunde.* the will against the representative or heir or any otherperson charged with the payment of the legacy. Jt is quite truethat in the case reported 2 Browne, 389, the Court considered itimproper that a separate action should be taken in reference tothe subject which was within the control of the Court havingtestamentary jurisdiction. But that was a case in which it wasvery naturally considered that, where a sale had taken placeunder the order of the Court of Colombo, it was improper that astranger should sue the executrix in respect of ‘ a difference arisingout of the sale in the District Court of Galle.
It was argued further, on behalf of the defendant in this Court,that the provision which I have quoted from the will contained aa special trust, i.e., a trust which the testator desired to create onaccount of the personal confidence he had in his executors.
A personal trust of that description could not be imposed uponthe executor of any of the executors. I fail to see that the clauseof the will creates any such special trust, therefore that objectionfails.
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There remains the objection that so long as any of the originalexecutors are alive, the defendant, who is the executor of anexecutor, is not clothed with the ’responsibility, of his »testator.There is.no evidence to show—there is not even an assertion—that Andrew de Silva is alive. All that • is said about him is.that he became insolvent. The other two exdcutors are dead butI think that, when the defendant was taking an exception orpleading a defence to a claim, he ought to have alleged and provedthat Andrew de Silva was still alive. He has not done that.
1902.October 2and 3.
Moncbettf,
A.CJT.
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1002.
October 2and 3.
Moncbeiff,
A.C.J.
His attitude is that of a person who has nothing to do with thesubject- He did not even look into the testamentary case ofComelis de Silva until this suit was brought against him. Heurges that he is executor only until the testator’s sun becomes amajor. He admits that the plaintiff asked for interest. He callsit interest money. He does not know what the interest was for.He never asked. He said he told the plaintiff that he mustconsult his proctors. I do not know whether he has consultedanybody. In any case he has not looked into all the documents.In fact, the attitude he has taken up is—“ Go away, my goodwoman, don’t fatigue me; I have nothing to do with you/’As the executor of David de Alwis he is in possession of all thepapers of David de Alwis, and I presume of all the propertywhich belonged to him. If he was disposed to deal fairly withthe plaintiff, and he had not accounted for this money, he wouldhave said at once: “ Andrew de Silva is executor in this case; heis the person responsible to you. I have handed over the wholematter to his charge, or, if I have not done so, I am prepared to doso at the first opportunity.” Instead of that he adopted a line-ofconduct which seems to suggest the suspicion that he wasendeavouring to conceal some transaction which he did not wishto avow. In any case, he is now, in my opinion, in the absenceof proof to the contrary, responsible for this money just as histestator would have been. I therefore think the appeal should beallowed and judgment entered for the plaintiff.