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Be Last Will of SEGO TAMBY.
D. 0., Colombo, 1,287.
Palaniappa Chetty, Appellant.
Kadar Umma, Exeoutrix of Sego Tamby, Respondent.
Creditor of deceased testator—Decree against executrix—Seizure of moneybrought to the credit of the deceased's estate for distribution to legatees—Apportionment of fund.
A oreditor of a deceased testator, having obtained judgment againsthis executrix, causedthe Fiscal toseizea certain sumout of themoney
brought by her intoCourt for thecreditof the estate,in order that two
legatees who were minors might be paid their legacies in due course, theother legatees having been already paid.
Held, that the creditor was entitled to receive, out of the fundsbrought into Court on behalf of the minor legatees, not the whole of the. debt, but only part of it, bearing the same proportion to the whole as thelegacies given to those legatees bore to the whole amount of the legaciesunder the will.
NE Palaniappo Chetty having obtained a decree against theexecutrix of Sego Tamby, deceased, in D. C., Colombo,
14,652, caused certain moneys brought to the credit of thedeoeased’s estate in this case to be seized, and moved for anotice
on the executrix toshow causewhyan order ofpaymentshould
not issue to him for the sum of Rs. 617.25, and interest on Rs. 400at 9 per cent, from 28th February, 1901, together with Rs. 181.82as taxed costs, as also the costs of the present application. Theexeoutrix appeared and showed cause.
The District Judge (Mr. D. F. Browne) found that, in pursuanceof the last will of the deceased Sego Tamby, the executrix hadrealized his property, and after payment of certain debts had asurplus of Rs. 5,446.43 for distribution among the legatees; thattwo of the legatees being minors, she had deposited in Court theamounts due to them, aggregating Rs. 1,486.69; that such depositstood to the credit of the testamentary proceedings, and not tothat of the two legatees; that there was no judicial settlement ofher account; that the applicant had obtained judgment against theexecutrix on a promissory note of the deceased and was granted adetiree for Rs. 617.25, with further interest and costs, amounting inall to Rs. 798.37; that for this amount he issued writ and seized somuch of the Rs. 1,486.69 as would suffice to pay his claim; andthat the exeoutrix had apparently abandoned her intention toappeal after obtaining the leave of the Court to appeal.
The District Judge then held as follows:—
“ The authority and cases on the point appear to be Williams onExecutors (ed. 1893), p. 1208; Gillespie v. Alexander (3 Buss.
September 6and 10.
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Ch. Gas. 130); David v. Frowd (1 M. & K. 210); Davis v. 1902.Nicholson 2 De G. & J.' 693); Qreig v. Somerville (1 Russ. & September 3
M.338); Oattel v. Sims (8 Beav. 243). As every estate in Ceylonan*
is administered by the Court, and as the ruling in Gillespie v.
Alexander will apply here, I have no hesitation in' following it,for it appears to me that Lord Eldon’s opinion, as given in 3 Russ.at p. 138, is entirely apposite, as here legatees who were infantswere not paid, but according .to the scheme of distribution, fundswere in effect, though not nominative, carried to their account.
I must therefore hold that the seizure is good only to the amountof the proportion of the debt which those legatees’ fund ofBs. 1.486.69 bears to the entire surplus of Bs. 5,446.63. and thatthe creditor must he left to his action against the legatees,who have been paid,- to recover from each his like proportionsof his claim. Against the fund in Court the proportions will beBs. 5,446.43 : Bs. 1,486.69 : : Bs, 798.37 : Bs. 217.91. I thereforehold the seizure good for Bs. 217.91.~~
Palaniappa Chetty appealed.
Bawa, for appellant.
Weinman, for the executrix, respondent.
Cur. adv. vvlt.
September 10, 1902. Middleton, J.—
This was an appeal from an order of the District Judge refusingto allow the appellant to receive out of Court the full amountof a judgment recovered by him against the respondent, executrixof Varukku Magan Sebo Tamby, deceased, of whom the appellanthad in his lifetime been a creditor. The. deceased died inFebruary, 1900; probate was granted to the respondent in April,1900, and the appellant brought his action in March, 1901, andobtained judgment in November, 1901, for a sum amounting inthe aggregate with interest and costs to Bs. 798.37. The executrixfiled an account on the 1st November, 1900, showing a surplusof Bs. 5,446.43, after payment of all debts acknowledged in thewill, amongst which the appellant’s debt did not appear. On herscheme of distribution of these assets all legatees were paid buttwo minors, and the sum of Bs. 1,486.69 due to the minors was paidinto Court on the 9th January, 1901, to the credit of the testamen-tary proceedings. The appellant seized so much of this money aswould suffice to pay his debt, and, upon his moving to draw thesame, /the order appealed from was made on the authority ofGillespie v. Alexander (3 Russ. Ch. Cos. 130). It would seem thatno judicial settlement had been arrived at, and that, apparently,
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no notice to creditors to come in and olaim had been published bythe executrix.
For the appellant it was contended that Gillespie v. Alexanderwould not apply to this case, as there was no laches on the part ofthe creditor, and the estate was not administered by the Court. InGillespie v. Alexander the estate had been apportioned, under theorder of the Court, amongst the legatees, and actually paid tothem, except that one legatee, being an infant, his proportioncould not be paid to him, but was carried to his account in the suit;and Lord Eldon held that the creditor, who had obtained per-mission to prove his debt, was entitled to receive out of the fundsof the legatees remaining in Court, not the whole of the debt, butonly part of it, bearing the same proportion to the whole as thelegacies given to those legatees bore to the whole amount of. thelegacies under the will. David v. Frowd (1 Mylne & Keen,p. ZOO), quoted by counsel for respondent, does not impugn thatprinciple. In Davies v. Nicholson (2 De Gex & Jones 693) itwas held that, where the act was not done under authority, butwas done without judicial intervention and as a private action,in the course of the administration of the estate, the principlelaid down in Gillespie v. Alexander, would not apply. Now,the learned District Judge in his judgment prefaces his rulingby the premise that every estate in Ceylon is administered bythe Court, and if we look at chapter 38 of the Civil ProcedureCode, sections 538, 551, 553, and chapter 54, sections 724 and725, it would appear that this is so. On turning to the journalentry in this action, dated 1st November, the procedure undersection 553 was carried out under the sanction of the Court, andnoted as “ allowed ” by the Judge. Again, on 20th December,the deposit of the balance divisible amongst the minor legateeswas made under the direction of the Judge.
It would appear, therefore, that the act of the executrix herein paying the sum into Court was done under the authorityof the Court, and that in default of any further claim turningup, as has occurred, the executrix had fulfilled all that wasrequired of her in accounting to the Court, and paying alllegacies and proved .debts within a year from grant of probate.In such a case it would seem that no judicial settlement would besought for or required.
I am, therefore, of opinion that the learned Judge was right inholding as he did, and would dismiss this appeal with costs.
I am of the same opinion.
Re Last Will of SEGO TAMBY