Shaw CJ:

The facts and arguments sufficiently appear from the judgment.

This is an application to the Court under s. 68 of the Civil Procedure Code to determine the question whether a certain sum of money received by the administratrix of the estate of the deceased from the trustees of the Municipal Provident Fund is subject to the payment of the debts of the deceased.

It is provided by s. 19(2) of Ordinance No. 135 (Municipal) as follows:

No payments or other allowance on death, superannuation, resignation, retirement or discharge made or granted to persons out of a superannuation and provident fund nor the rights of any contributor acquired thereunder shall be assignable or transferable or liable to be attached, sequestered or levied upon for or in respect of any debt or claim whatsoever.

It has been held in England in the somewhat analogous cases of pensions of officers and civil service officials that the money, when actually received, is liable for the debts of the person receiving it and its property passing to the trustee in the case of a bankruptcy. (See Jones v. Coventry [1909] 2 KB 1029; Re Huggins, 21 Ch D 85).

It was argued however by Mr. Zehnder on behalf of the administratrix that the provision contained in s. 19 of the Municipal Ordinance is more extensive than the provisions of the enactments that have been the subject of the English decisions which only prohibit assignment, etc., of the pension or allowance, in that the Ordinance provides that "no payments ... shall be ... liable to be attached, sequestered or levied upon in respect of any debt or claim whatsoever" and that the effect of this provision is that although the money has actually been received by the officer or his estate it is nevertheless not liable for the payment of his debts. In effect, the argument must amount to this that the property of the officer during his lifetime and his estate after his death is free from liability for his debts up to the amount received from the Fund.

This is somewhat startling contention and would amount to an infringement of the ordinary rights of creditors. Such a construction ought not to be deduced from the wording of the Ordinance unless the wording is unambiguous to that effect.

In my opinion it is not.

To read the section in the manner suggested it is necessary to read the words "no payments" in the section as meaning "no sums of money received by an officer or by his estate" and even if one so read it, it would be useless for the purpose that it is contended that the section is intended to affect and would indeed be meaningless because a creditor does not, when he takes out execution, levy on any particular sum of money for a debt but levies against the property of the debtor or his estate generally.

This is a somewhat startling contention and would not to be assigned or levied upon under the Ordinance are in my opinion the amounts the officer or his estate is entitled to receive from the trustees of the Provident Fund up to the time the moneys are paid over to the officer or his estate and all that the Ordinance can properly be construed as effecting is the same as the English provisions, construed in the cases I have referred to, namely to prevent the money to which the officer or his estate is entitled being assigned by him or attached or levied upon before it comes into his possession.

I therefore hold that the money received by the administratrix is subject like any other part of the intestate's estate for the payment of his debts.

The costs of all parties to this summons should be paid out of the estate.

Order accordingly.

From this judgment the defendant appealed to the Court of Appeal.

Sproule, Barrett-Lennard & Brown JJ delivered oral judgments unanimously dismissing the appeal.