078-NLR-NLR-V-19-SILVA-v.-SALMAN.pdf
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Present: Wood Renton C.J. and Shaw J.
SILVA v. SAUVIAN.
,428—D. C. GaUe, 13,337.
Executor de son tort—Sale of land for payment of debt.
An alienation by an executor de son tort for the purpose ofpaying the debts of the deceased is valid and will pass the property,at any rate so long as the executor de son tort is really acting asexecutor, and the creditor has reason to believe that he is so acting.
W,»who married after Ordinance No. 15 of 1376 came into force,died, leaving a widow and three children. W’s estate was underBs. 1,000. M, without taking out letters of administration to herhusband’s estate, " sold the whole of her husband’s interest in theland for the purpose of paying off her husband’s debt.
Held, that the sale was good.
fJ^HE facts are set out in the judgment.
A. St. V. Jayawardene, for plaintiff, appellant.
J. S. Jayawardene, for twenty-second added defendant.
Cur: adv. vult.
December 20, 1916. Wood Renton C.J.—
This is a partition action. But we are concerned only with apoint of law arising between the plaintiff and the twenty-secondadded defendant. The former claims the whole of the shareclaimed by the latter by virtue of a deed of conveyance fromMancho, the widow of Udarishamy, one of the children, and heirs,of a man Kaloris, who purchased a share of the property from one
1916.
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1916.of the sons of the original owner. Udarishamy and Mancho were
Wooodnot married in community. The marriage, in fact, took place after
Rknton C.J. Ordinance No. 15 of 1876 had come into operation. WithoutSUvtTvhaving taken out letters of administration to her husband’s estate,
SalmanMancho sold the whole share to the plaintiff for the purpose of paying
off some of Udarishamy’a debts. The question at issue is whetherthat sale was valid. The learned District Judge has answered thisquestion in the negative, upon the ground that, without obtainingletters of administration or a certificate of guardianship underChapter XL. of the Civil Procedure Code, Mancho had no right toalienate, as she has in fact done, the whole share of Udarishamy'sproperty, to which his minor children are by the law of inheritanceentitled.
I am unable to agree with this decision. The case of Prins v.Pieris 1 makes it. quite clear that Mancho, although she was notmarried in community of property, was in the position of anexecutrix de son tort, and was entitled to pay the debts of herhusband’s estate, provided that she was really acting at the time inthe character of executrix, and that the plaintiff, with whom she wasdealing, had fair reason for supposing that she was doing so. Theplaintiff’s counsel relies strongly on the decision of this Court inSilva v. Silva2 to the effect that on the death of the owner of propertyintestate the title to that property passes at once to his heirs. Butthe Supreme Court in that case pointed out that this vesting of theproperty in? the heirs was subject to the right of the -administratorto make use of whatever portions were required for the purpose ofadministration. If the whole property was absorbed by the debtsof the estate, there was nothing to go to the heirs at all. I do notthink that there was any need for Mancho to have taken-, out acertificate of guardianship, inasmuch as she was acting in the matter,not as guardian, but as executrix de son tort.
For these' reasons I would allow the appeal, and I concur in theformal order made by my brother Shaw.
Shaw J.—
The only question involved in this appeal is whether the plaintiffor the twenty-second defendant and her co-heirs are entitled to ashare formerly belonging to one Udaris, the father of the twenty-second defendant.
Udaris died leaving the widow Mancho, to whom he was married,not in community of property, and three minor children. He lefta mortgage debt on his property, and his estate appears to havebeen under Bs. 1,000 in value. The widow Mancho, withouthaving taken out administration of her husband’s estate, has soldto the plaintiff the whole of her husband’s interest in the property,
i (1901) 4 N. L. R. 363, and cf. Fernando 2 (1907) 10 N. L. R. 234.
v. Fernando (1859) 3 Lor. 235.
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the subject of this partition suit, for the purpose of paying off herhusband's debt.
The question for our determination is whether this sale is good,in so far as it affects the interests of his minor children in the land.
There does not appear to be any reason to suppose that the salewas not made bona fide for the purpose – of paying off the debt leftby the husband, or that the widow made any profit from thetransaction.
Had she applied for administration of her husband's estate, shewas the natural person to have obtained it; not having done so,and having intermeddled with the estate by paying off the debts,she is in the position of an executrix de son tori.
The lawful acts done by an executor de son tort are good, and analienation by a person so acting for the purpose of paying the debtsof the deceased is valid and will pass the property (see Parker v.Kett1), at any rate so long as executor de son tort is really acting asexecutor, and the creditor has reason to believe he is so acting(Thomson v. Harding3). It has been held in Ceylon that analienation of land by a widow to discharge a mortgage thereonmade by her deceased husband is good as against the heirs of thedeceased (see Fernando v. Fernando*), and in Prins v. Pieris* itwas held that a sale by the Fiscal on a writ issued against a widow,who was in possession of her husband’s property as executrix de sontort in execution of a decree on a mortgage bond granted by herdeceased husband, gave a good title to the purchaser. Althoughin those cases husband and wife were married in community ofproperty, the interest sold included that of the heirs, as in thepresent case.
It was contended on behalf of the respondent that, according tothe decision in Silva v. Silva,* upon the death of Udaris intestatehis property pased at once to the heirs, and that the conveyanceby ihe widow alone was therefore invalid, but it was pointed outby the Court in that case that the property only passed to theheirs, subject to the rights of the person administering the estate toalienate for the payment of debts.
In the present case the sale was a bona fide one, and made for thepurpose of payment of debts by the person acting as administrator,and was, in my opinion, valid.
The plaintiff is, therefore, entitled to the shares allotted to thetwenty-second defendant and her co-heirs, and I would amend thedecree accordingly.
The appellant should have the costs of this appeal and the costsof the contest in the District Court.
'• Appeal allowed.
1 Lord Raymond 661.9 (1859) 9 Lor. 285.
(1853) 2 Ex. B. 630.* (1901) 4 N. L. R. 363.
* (.1907) 10 N. L. R. 234.
IMS.
Shaw J.
■ Silva v.
Salomon