084-NLR-NLR-V-12-SOYSA-v.-ABEYDERA.pdf
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Present : Mr. Justice Middleton and Mr. Justice Wood Benton.
SOYSA v. ABEYDERA.D. C., GaUe, 2,948.
Civil Procedure Code, s. 551—Compensation to executors and-administra-tors for trouble—Reimbursement of out-of-pocket expenses.
An executor (or administrator) is entitled to his out-of-pocketexpenses in addition to the compensation provided for by section551 of the Civil Procedure Code.
Section 551 deals only with compensation in the sense of re-muneration for trouble; the first part of the section prescribes themaximum rates allowable ; the second part limits the gross amountrecoverable by the executor; but neither that amount nor anyadditional compensation allowed by the Court may increase therates prescribed by the earlier part of the section.
PPEAL from a judgment of the District Judge of Galle.
Walter Pereira, K.C. (with him Sarmrawickrama), for the appellant(4th heir).
A. St. V. Jayewardene, for the respondent.
Cur. adv. vult.
November 12,1909. Middleton J.—
This was an appeal by Regina, the so-called 4th heir of herdeceased father, together with her husband, against an order madein testamentary proceedings in favour of the executor-respondent,on August 23, 1909, allowing the respondent to withdraw the sumof Bs. 2,931, and the interest accrued thereon from March 24, 1904,said to be lying in deposit to the credit of the 4th heir in the presentaction, she being permitted by the same order to draw the balance.
1909.
November 12.
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1M9.
November IS.
Middleton
J.
On April 27,1901, a claim was made by the executor that he shouldbe allowed by the Court to charge Rs. 7,200 for travelling expensesand Rs. 14,578 for compensation as executor. This claim wasconsidered by the Court and allowed in the presence of Mr. Goone-wardene, a proctor, who apparently then held the proxy of FrancisPerera, who at that time was the duly appointed curator of theinfant heirs, including Regina.
It would seem, however, from the evidence of Arthur de Soyza(p. 1,380/12), uncontradicted, that lie was married to Regina onFebruary 1, 1899, and there is no evidence pointed out to us in therecord to show that Regina or her husband received notice of thatparticular application.
On August 6, 1901, Francis Perera appealed against this order,apparently as heir and not as curator, and on October 6, 1901, thisappeal was allowed to be withdrawn by the Supreme Court.
On October 13, 1902 (record, p. 138), the executor, by consent ofthe three remaining heirs, excluding Regina, obtained leave to with-draw three-quarters of an amount then said to be in deposit. Reginareceived no notice of this application, except through the curator,and on August 17,1903 (record, p. 138), a proxy from herself and her
husband in favour of Mr. W. E. Weerasuria was filed in Court.
The question is (1) whether Regina, being a married woman at thetime, is affected with notice of the order of April 27. 1901, throughher curator appointed by the Court. By the form given, No. 94,- of acertificate of curatorship, it remains in force until the minor attainsthe age of twenty-one years.
The executor (p. 138M/11) admits that when the order of April 27,1901, was made Regina was still a minor though married, and hedid not give her notice of the application for that order because hethought she was still represented by her curator. By section 502 ofthe Civil Procedure Code a minor shall, for the purposes or chapterXXXIV., be deemed to have attained majority or full age onmarriage. It seems to me therefore that Regina and her husbandought to.have had notice of the application for the order of April 27,1901, and they are not bound thereby, not only by parity of reason-ing derived from a comparison of the position of a guardian ad. litem.with a curator, but also because on marriage a woman, though shedoes not under the Roman-Dutch Law (Voet 4, 4, 9) attain majority,yet, if she brings to her husband movable property, he as her guard-ian by marriage and by virtue of section 19 of Ordinance No. 15 of1876 must have a right to notice before the Court can deal therewith.I would hold, therefore, that the order of April 27, 1901, cannot bedeemed to affect Regina and her husband.
The other heirs apparently have consented to the order, andare, I assume, bound by it. This point was taken by the learnedSolicitor-General subsequently to the main point insisted on by him,t.e., that section 551 of the Civil Procedure Code would not permit
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the Court to order as compensation to an executor any sum above 190a.
Bs. 5,000 which would exceed the aggregate of 3 per cent, on property November 12.sold and not sold, together with 1£ per cent, on cash found in the mu^^etonestate and property especially bequeathed.J.
In my opinion this is the proper reading of the section, subject,however, to a construction of the word “ compensation,” which, Ithink, goes beyond that contended for by the Solicitor-General.
The hitter paragraph of the section seems to imply that the com-pensation is to be by way of remuneration and to be a recompenseor reward for a loss of time and service, not including out-of-pocketexpenses. Under English Law an executor is entitled to be allowedall reasonable expenses incurred by him as such, but not for personaltrouble and loss of time (Williams on Executors, vol. II., p. 1852,
7th edition).
The question is whether under the Civil Procedure Code it was theintention of the Legislature, having regard to the English Law, togive a lump sum for compensation, which should include out-of-pocket expenses. It seems to me that the amount of out-of-pocketexpenses for travelling incurred by a conscientious executor manag-ing a small estate for some years might greatly exceed the percentageallowed by the section, and I think that the Legislature intendedthat the executor should be induced to. perform his duties con-scientiously by the payment of remuneration for services rendered,possibly as a justification for the stringency with which he may betreated for default and the difficulty of getting proper persons tofulfil the duties of the office, and should not be out of pocket forexpenses properly incurred in the administration of the estate. Onthis construction of the section, which I think is the right one, thelearned District Judge, in 1901, would have been right in allowinga sum for travelling expenses, and liis order might very well be againdecreed if no sufficient cause is shown for alteration on furtherconsideration by the present District Judge, provided that the sumof Rs. 14,-578 does npt exceed the percentage allowed in the firstpart of section 551.
Under English Law an executor is entitled to his release from thebeneficiaries under the will upon a filing of proper accounts andvouchers showing a due discharge of his obligation under the will,and, so far as I can gather from a perusal of chapters XXXVIII. andLIV. of the Civil Procedure Code, an executor may get liis dischargein Ceylon on the same grounds and for the same reasons, althoughunder sections 725 and 729 the Court may either order a judicialsettlement of .recounts, or the executor may petition for one to beordered if he desires to do so.
In my opinion 3 N. L. R. 350 does not decide that an executor oradministrator can only be deemed functus officio on a judicial settle-ment, nor do I think that section 540 of the Civil Procedure Codemeans this. The executor filed his accounts in 1899, and though
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1909. the Court left them open to objection by the heirs, no objection hasNovember 12. been taken to them up to the present. It may be the heirs’ desireMiDDtisroK drive the executor to obtain an order under 729 if he desires toJ. get his release, but I agree with the learned District Judge that heis not to be debarred from drawing his compensation if the Courtorders it upon the accounts as filed.
In the present case I have but little doubt that the appellant musthave been well aware, that the order of April 27, 1901, had beenmade, although they must be deemed to have had no legal noticeof it. It was further contended by the Solicitor-General that theamount allowed to be withdrawn is an excess of one-quarter, ascompared to that drawn against the other three heirs for three-quarters. This appears to be the case, and would be a furtherground for varying the order appealed against. Under the circum-stances, the order appealed against must be set aside, but I thinkeach party should pay his own costs of the appeal.
As the order of April 27, 1901, has no effect as against the appel-lants, it will be necessary for the executor to renew' his applicationto the Court for compensation and travelling expenses against thepresent appellant.
Wood Rentok J.—„
I agree. I have had some doubt as to whether an executor isentitled to his out-of-pocket expenses otherwise than as part of thecompensation provided for by section 551 of the Civil ProcedureCode. But, on full consideration, I think that that section dealsonly with compensation in the sense of remuneration for trouble;and that it was not intended by the Legislature to deprive anexecutor of his right, under the law of England—to the fundamentalprinciples of which on this subject the law of Ceylon as to executorsand administrators conforms {Staples v. De Sararn ')—to reimburse-ment for actual outlay. I agree with my brother Middleton as to theconstruction of section 551. In my opinion the first part of thesection prescribes the maximum rates allowable; the second limitsthe gross amount recoverable by the executor ; but neither thatamount nor any additional compensation allowed by the Court mayincrease the rates prescribed by the earlier part of the section.
Case remitted.
Bam. 1863-68, 26S