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Present: De Sampayo J. and Schneider A.J.
PERERA v. PATUMMA.
326—D. 0. Kurunegala, 6,690.
Eaeoutor de son tort—Discharge for .debt due to estate—Discharge bysurviving spouse.
An executor de son tort cannot give a valid discharge cf a debtdne to estate.
The widow married in community cannot give a valid dischargefor debts due to deceased husband.
rJ~* H Hi facts appear from the judgment.
Samarawickreme, for defendant, appellant.
No appearance for plaintiff, respondent.
Cur. adv. vult.
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March 17, 1919. Schnkideb A.J.—
The plaintiff, as the administrator of the estate of one DanielAppu, seeks to recover a half share of the principal and the interestdue upon a mortgage bond executed by the defendant in favourof Daniel Appu and his wife Agida Hamy, who were married incommunity of property. The defence is that after the death of herhusband, Agida Hamy received payment in cash for part of themoney due, and a fresh bond in her favour for the remainder, andcancelled and discharged the bond sued upon. The only point fordecision is the question Whether the payment is a good defence,granting that the widow was the executrix de son 'tort of her deceasedhusband’s estate. The learned Acting District Judge held in favourof the plaintiff on all the issues he tried, and the defendants appeal.Counsel for the appellant submitted that the payment was good,even as against the plaintiff, on two grounds as made: (1) To anexecutor de eon tort; (2) to the surviving widow of a marriage incommunity. In support of neither one of these grounds was heable to refer us to any direct authority. I have been unable todiscover any. In my opinion on neither one of these grounds isthe payment a good defence to the action of the plaintiff.
Generally stated, an executor de son tort or of his own wronghas all the liability, but none of the privileges, of a lawful executor.He is liable to be sued as executor by a creditor or legatee, as wellas by the lawful executor or administrator, but he cannot bringany action in right of the deceased (Encyclopedia, of the Laws ofEngland, vol. 5, pp. 554 and 555).
In Coulter’s ease,1 where it was held that an executor of his ownwrong shall not retain any part of the deceased’s goods to satisfyhis own debt, the reason was stated as follows: “ For from thencewould ensue great inconvenience and confusion, for every creditor(and chiefly when the goods of the deceased are not sufficient tosatisfy all the creditors) would contend to make himself executorof his own wrong to the intent to satisfy himself by retainer, bywhich others would be barred. And it is not reasonable that oneshould take advantage of his own wrong; and if the law should givehim such power, the law would be the cause and occasion of wrongand of the wrongful taking of the goods of the deceased.”
In Mountford v. Gibson,* where the question was considered howfar a creditor of an intestate estate, who received goods of theintestate after his death from his widow in payment of the debt,could protect his possession against an action of trover by thelawful administrator, Lord Ellenborough C.J., in- the course of hisjudgment, said: “ If this defence could be maintained, the wholesystem of administration of an intestate’s effects would be put anend to, and instead thereof an authorized scramble introduced by1 5 Coke Reports 30.* 4 East 441.
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law among the creditors for priority of payment where the assetswere insufficient; as such as had no chance of payment in the regularcourse of administration would by underhand means plant a beggarin the intestate’s house, and under colour of his being> thus made anexecutor de son tort would obtain a delivery from him of the goodswith which they had respectively furnished the intestate.” Thereason given in these cases is applicable to the present case, andwith greater force.
If a debtor of a deceased person be allowed to exonerate himselfby pleading payment to an executor de son tort, a man of strawmay, in collusion with the debtors of the estate, dissipate all theliquid assets of the estate, leaving the lawful administrator to suehim, from whom nothing could be recovered. The second groundappears to me to be equally untenable. There’are a number of casesin our reports where the right of a widow married in communityof property who has not taken out administration to alienateimmovable property belonging to the community to pay the debtsof the community has been recognized. D. C. Colombo, No. 54,929,1Wtjeratne v. Abeyweera,2 Ferdinands v. Fernando,* Amaris Appu v.Sadris Perera,4 Rowel v. Fernando,s Silva v. Wattuhamy,e Hadjiar v.Henderick Appu,’’ Appuhamy v. Appuhamy.8 But in the absence ofany authority in the Boman-Dutch law, it is possible to extendthis right so as to allow her to recover moneys due to her deceasedhusband’s estate upon mortgages and to give valid discharges.
I would therefore dismiss the appeal, with costs.
De Sampato J.—
I am of the same opinion. I should like only to add that theBoman-Dutch law, which permits the surviving spouse to alienatethe joint property for the payment of the debts of the community,appears to me to be based on the principle that the heirs of thedeceased spouse must bear the burdens of the estate equally withthe survivor, and must stand by an alienation bona fide made for thepurpose of discharging those burdens/ This qualified right of thesurvivor to deal with the property of the community, which remainsliable to be sold at the instance of creditors, has no analogy to anyclaim on the part of the survivor to receive assets or to give dischargesfor debts due to the estate so as to bind the heirs in respect oftheir share.
*(1860-1871) Vand. 264.»(1882) 6 S. 0. C. 70.
(1883) 6 S. 0. 0.162.
(1883) Wendt 343.
«(1891) 1 8. O. B. 113.’ (1894) 3 8. O. R. 164.
» 1895) 2 N. L. R. 26.
• (1900) 4 N. L. R. 337.
PERERA v. PATUMMA