CANTLAY v. ELKINGTON.

Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, Mr.
Justice Middleton, and Mr. Justice Wood Renton.

CANTLAY v. ELKINGTON.

D. C., Kandy, 15,378.

Marriage in community-Death of one spouse-Administrator of deceased spouse-Vesting of entire estate-Judgment against administrator-Liability of entire estate-English law of executors and administrators-Estoppel.

Held, that-

(1) When one of two spouses married in community of property dies, the entirety of the common estate vests in the administrator of such deceased spouse for purposes of administration; and on a judgment obtained against such administrator alone the entire common property may be sold.

Perera v. Silva (2 C. L. R. 180) and Nonohamy v. Perera (2 C. L. R. 153) followed.

(2) Section 2 of Ordinance No. 7 of 1840 does not apply to the division of property in community, which takes place by operation of law and not by convention of parties.

(3) The English Land Transfer Act, 1897, does not apply to Ceylon.

LASCELLES, A.C.J.-In matters involving title to property it is a well established principle that a decision, which has been in force and has been acted on for some time, should not be disturbed except for the strongest reasons.

WOOD RENTON, J.-A cursus curiae of long standing and the rights which have grown up under its sanction should not be lightly disturbed.

Where the wife, married in community of property, allowed a third party to take out administration to her deceased husband's estate and to enter into possession of the whole of the common property, did not ask for any accounts, and though represented

in Ceylon by an attorney and aware that the entire property had been sold by the Fiscal, took no steps to claim her share for several years,-

Held, that she must be taken to have renounced her right to any share in the property, and that her conduct estopped her from claiming any share of the property now.

IN REVIEW.

JAMES CANTLAY and Alexander Cantlay were the owners of a property called Ladbroke estate. James Cantlay married the plaintiff on the 13th February, 1877, in community of property, and died intestate on 31 August, 1888. Charles Cantlay was appointed administrator of James Cantlay's estate. A. C. White instituted an action against Alexander Cantlay and Charles Cantlay, as administrator of the estate of James Cantlay, on a mortgage bond executed by James Cantlay and Alexander Cantlay mortgaging a property called Gingran-oya estate, and obtained judgment and issued writ. The mortgaged property was sold but did not realize the amount of the decree. In order to recover the balance due Ladbroke estate belonging to James Cantlay and Alexander Cantlay was seized and sold by the Fiscal and purchased by A. C. White, who obtained a Fiscal's transfer dated 4th June, 1889, which conveyed to him the " right, title, and interest of Alexander Cantlay and the late James Cantlay." The defendant claimed title to the property through the purchaser at the Fiscal's sale. The plaintiff left the Island in March, 1889, and returned in May, 1901, and in May. 1903, instituted this action to vindicate one-fourth share of Ladbroke estate, alleging that her interest in the common property of her herself and her husband had not been seized or sold by the Fiscal. The District Judge (J. H. de Saram, Esq.) dismissed the action. His judgment was as follows: -

" This is an action to vindicate from the defendant an undivided fourth share in Ladbroke estate. The estate was owned by two brothers, James Cantlay and Alexander Cantlay. The transfer in their favour is dated 28th June, 1886. James Cantlay married the plaintiff in community of property on the 13th February, 1877, and died intestate on 31st August, 1886. The plaintiff alleges that the community came to an end on the death of her husband, and that she then became, in her own right, entitled to an undivided fourth share of Ladbroke. Charles C

Click Here to Read the rest of this document