In Re The Estate Of P.H. Nicholas Holsinger V. Nicholas

1918 Present: Bertram C.J. and De Sampayo J. .

In re the Estate of P. H. NICHOLAS.

HOLSINGER v. NICHOLAS.

71-D. C. (Inty.) Negombo, 1,601.

    Judicial settlement-Right of Court to inquire into charges of waste and negligence against an executor-Is separate action necessary?- Is executor entitled to charge more for proctor's fees than what the Civil Procedure Code provides?-Notary's fees-Executor's remuneration-Costs.

Where a complaint is made against an executor of negligence or waste, it is competent to the Court to inquire into the matter in a judicial settlement. The object of a judicial settlement is that all matters that may arise in the course of the administration of the estate between the accounting party and the beneficiary should be dealt with promptly and in an expeditious manner, so that the whole question might be finally wound up in those proceedings. If the Judge thinks that the matter is of such complication and importance that it can only be inquired into by a regular action, he might suspend the settlement until that matter is determined by a regular action, or conclude the settlement subject to the determination of that matter.

Where an executor paid to the proctor, whom he employed for the purpose of the legal business of administration, a sum of  Rs . 5,000, which was agreed upon in advance,-

Held, that it was open to the Court to require the amount to be submitted to taxation before passing the item in the judicial settlement.

Under Ordinance No. 1 of 1907 a notary is not entitled to charge a higher fee than that prescribed in the Ordinance, and an executor cannot debit the estate with a higher fee for notarial charges.

The remuneration of an executor should not be a lump sum, but by a rate.

THE facts are set out in the order of the District Judge, M- S.  Sreshta, Esq.: -

This inquiry has been held upon an application made by the heirs for a judicial settlement of the accounts of the executor. I have already decided that this account can be judicially settled upon the petition presented by the heirs. The other two issues which, of consent, were framed are: -

Can any of the items referred to in the petition of the heirs be judicially settled?

If they can be, are any of such items, or any part of them, not chargeable against the estate?

Most of the items in the account which are questioned relate to money paid to creditors and legatees for alleged necessary expenses and for the services of the executor. Two of the items refer to amounts alleged to be irrecoverable, and, therefore, not recovered, namely,

debts due on promissory notes by Mrs. Leembruggen and M. B. Perera. These are items 1 and 2 contained in schedule A 2 annexed to the account. 

It is clear from section 739 of the Civil Procedure Code that the District Court is empowered to enter a decree under chapter L V. of the Civil Procedure Code, adjudicating upon the facts referred to in the section. It follows, therefore, that in an inquiry held under this chapter the Court has power to hold the necessary inquiry for the purpose of making such adjudication .

The executor expressed his willingness to assign the note in questior to the heirs, as he has a hold on the interest payable to the first and second petitioners to secure himself against any personal loss by reason of making such assignment. I therefore make an order that the executor do assign to the three petitioners the notes in question, on their giving security to the Court that any money recovered on the notes would be deposited by them in Court to the credit of the estate. Although I am making this order, it is desirable that I should record my opinion that the executor has not exercised due diligence in regard to these two notes. One of them was granted by Mrs. L., whose husband is alive. The executor made no effort to recover the money due on this note. This lad

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