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MOYSA FERNANDO v. ALICE FERNANDO
NLR4V201
MOYSA FERNANDO v. ALICE FERNANDO.
D. C, Colombo, 11,084.
Administration state of the law, as to necessity of taking out letters in case of intestacy, before and after the passing of the Civil Procedure Code, 1889-Inventory and division of joint estate by surviving husband without administration-Action by heir for share of inheritance-Proper remedy.
Bonser, C.J.-By the Charter of 1833 the English law of executors and administrators was introduced into this Island, and in 1841 a duty was imposed by Ordinance No. 7 of that year on letters of administration and probate of wills in regard to all classes of estates.
The law thus introduced and carried into effect by Rules and Orders in that behalf made being new to the people of the country, the Supreme Court directed the District Courts not to enforce the new law too suddenly or inflexibly, whence arose the lax practice of not requiring administration in the case of " small " estates, and the question of what was a small estate was left to the discretion of individual judges.
The Civil Procedure Code of 1889 took away this discretion, and by section 547 it was provided that no estate which amounted to the sum of Rs. 1,000 was to be considered small, and that in every case where the estate amounted to or exceeded in value Rs. 1,000 administration should be taken. It was further provided that no action, should be maintainable for the recovery of any property included in such an estate unless probate or administration had been granted.
The effect of the enactment in section 547 is to declare that the executor or administrator was the only person who could sue for the recovery of any property included in such an estate.
Where, on the death of a wife leaving her surviving her husband and a minor daughter, the husband, without taking out administration, inventorised the joint estate and, dividing it into two halves, settled one half on the minor daughter by means of proper conveyances, and then married again; and when upon his death intestate, his widow claimed the whole of his estate, save the part already conveyed to his daughter,-
Held, in an action brought by the daughter against the widow for the recovery of certain lands not included in the settlement by her father, that the inventory and division of the original estate were irregularly made, and that the proper remedy of the daughter was to apply for administration of her deceased mother's estate and to divide the estate according to law among the parties, independently of her father's division of the estate.
IN this case the plaint alleged that one Denis Fernando was married in community of property to one Anso and had by her an only child, the first plaintiff, who on the 24th June, 1897, married the second plaintiff; that Anso died intestate in November, 1884, leaving her surviving her husband Denis and the first plaintiff, each of whom became entitled to a moiety of the joint estate; that the joint estate included, amongst other properties, a house at St. John's road, Colombo, and two lands at
Mount Lavinia, of the aggregate value of Rs. 23,000; that from the time of Anso's death in 1884 up to the time of the first plaintiff's marriage in June, 1897, the first plaintiff was a minor; that the first plaintiff's father died on 11th January, 1897, and from the time of Anso's death to his (Denis's) death, he was in possession of the - entirety of the lands without accounting to the first plaintiff for her share; that Denis married the defendant in 1887, and after his death in 1897 the first defendant obtained letters of administration to the estate of the late Denis, and wrongfully included in the inventory filed in the testamentary suit the entirety of the three lands in question as belonging to Denis's estate, whereas only an undivided half share thereof was his, and the remaining half belonged to the first plaintiff by inheritance from her mother; that the
