HYNDMAN-JONES CJ

THIS is an Originating Summons in the matter of the Estate of Hadjee Abdullah bin Hadjee Moosah (otherwise called Hadjee Dollah) deceased taken out by Syed Omar bin Mohamed Alsagoff and Syed Allie bin Mohamed Alsagoff the executors of Syed Mohamed bin Ahmed Alsagoff who was himself the executor of Hadjee Abdullah bin Hadjee Moosah.

The summons requires the attendance of Rosina binte Hadjee Mohamed Tahir, Amina binte Ibrahim and Ameena binte Hadjee Mohamed Sidik, and the application is that the Court should approve the payment to the said Rosina binte Hadjee Mohamed Tahir the mother and lawful guardian of the persons and properties of Aminah binte Ibrahim and Ameena binte Mohamed Sidik (who are infants) of such sums as on the distribution of the above-named estate may be found due and owing by the applicants as such trustees and executors, and for a declaration that the receipt by the said Rosina binte Mohamed Tahir for the payment of the aforesaid sums shall be a valid and lawful discharge of the liability of the applicants to the said infants in respect of such sums.

It appears that these infants are the children of Rosina by two different fathers who are now dead, and that the estate of Hadjee Abdullah has been duly realised according to the directions contained in his Will, and that it now consists of the proceeds of sale of immoveable property amounting to over $140,000. I understand that the sum now due to the infants amounts to some $60,000.

The question was argued with reference to the English Law on the subject, as also with reference to the local law which, it was contended by Mr. Upcott, rather extended than restricted the English Law. I proceed to deal with the English Law first.

There are of course various kinds of guardianships known to the English Law, some of which have been abolished or become obsolete; but the guardianships which I propose to consider are the natural guardianship of parents and guardianship under 12 Car. II cap. 24 or testamentary guardianship.

Although guardianship by nature was in its strict sense limited to the guardianship of an heir apparent, the Court of Chancery has always recognised the father's right as guardian by nature to the custody of his children; and if the father appointed no guardian to his children, the mother after his death has also been recognised by the Court as such guardian.

With regard to real estate the father as such guardian had no title to a control over land belonging to a child: while as to personality it has been laid down that if a legacy be given to an infant the executor or trustee cannot, in the absence of any directions in the Will to that effect, discharge himself by paying it to the father as guardian unless the Court allows it, as in the case of Walsh v. Walsh [1852] I Drew. 64 and Hill v. Chapman [1789] 2 Bro. CC 612. It is conceived that the executor is in the same position when the guardianship is in the mother.

The case relied upon by Mr. Carver was that of Dagley v. Tolferry [1715] I P. Wms. 285, and so strictly was the rule enforced in that case that even although the executor had received express verbal instructions from the testator on his death-bed to pay the legacy to the father, and although there had been mutual accounts between the father and son and an acquiescence for nearly 15 years, the executor was held bound to pay the legacy over again to the assignee of the bankrupt estate of the son, who had become bankrupt some time after he had attained his majority.

The law as thus laid down was recognised and approved in subsequent cases Robinson v. Tickell [1803] 8 Ves. 142, Copper v. Thornton [1789] 3 Bro. CC 186, and these cases are cited by the text writers, Williams in his work on Executors 10th Ed. at page 1137 stating it as a general rule that where the legatee is an infant and would be entitled to receive the legacy if he were of age, the executor is not justified in paying it either to the infant or t