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STEWART et al. v. SENANAYAKE
NLR31V241
Present: Fisher C.J. and Maartensz A.J.
1929
STEWART et al. v. SENANAYAKE et al.
198-D. C. Avissawella, 165.
Last will-Direction to executor to sell
property-Devise of proceeds of sale-Failure of executor to sell-Property dealt
with by heirs-
Vesting of title-Execution sale-Subsequent acquisition of title by
judgment-debtor." 'Where a last will directed the executor to sell property and
then devised the proceeds of sale in the manner specified, and where the
executor failed to carry out the directions and the devisees dealt with the
property as owners,-
Held, that the devisees must be deemed to have elected to take the
property in its original character.
The subsequent acquisition of title by a judgment-debtor does not ensure to the
benefit of a purchaser at the execution sale.
THIS
was an action for declaration of title to 2/5 share of an estate called
Belangalla, which belonged to one John Stewart. He died in September, 1906,
leaving a last will, by which he directed his executor to sell the estate after
the death of his wife, to whom he left the life-interest. The last will then
devised the proceeds of sale among his four children, in the proportion of a 1/5
share to each, and the remaining 1/5 among three grandchildren. The life-renter
died in 1909. The executor died in 1920, without carrying out the directions of
the will.
The main question argued in appeal was whether any title vested in the children
and grandchildren of John Stewart, as it was contended that the dominium vested
in the executor in terms of the last will.
H. V. Perera, for defendants, appellants.-The entire basis of the
plaintiffs' claim is that the last will of John Theodore Stewart vested the
title to the land in question in his children , and grandchildren through whom
the plaintiffs seek to derive their own title. It is clear the last will does
nothing of the kind inasmuch as it creates a trust for sale, the proceeds of
which had to be distributed among the children and the grandchildren. The
executor having died, without carrying out the directions contained in the will,
the legal title passed to his representatives, so that whatever weakness there
may be in .the defendants' title the plaintiffs cannot maintain this action.
Secondly, with regard to the 1/5 share of the first plaintiff claimed by the
defendants the principle of the exceptio rei venditae et traditae applies.
Assuming that at the time of the sale in execution
in which the defendants bought this share the
first plaintiff had no Stewart v. title since he had previously been adjudicated
an insolvent, the Senanayake subsequent acquisition of title by him after he had
obtained his certificate enures to the benefit of the defendants.
Counsel referred to Rajapakse v. Fernando [1(1920) 21 N. L. R. 495.] and
Gunatilleke v. Fernando. [2 (1919) 21 N. L. R. 257]
C. V. Ranawake, for plaintiffs, respondents.-The will creates no trust, the
property is not vested in the executor, nor is it bequeathed to him. The
defendants did not in the lower Court raise a specific issue on this point,
possibly because they themselves at the execution sale bought the premises on
the assumption that the children and the grandchildren of John Stewart were
rightly owners. Even if there was a trust, the executor having omitted-to carry
out the testator's wishes, the heirs can be said to have elected to take the
property in its original character. See section 58 of the Trusts Ordinance, No.
9 of 1917. Whatever may have been the testator's intentions, the heirs entered
into possession on the footing they were owners, and there is nothing to show
the executor did not acquiesce in this. See Vansanden v. Mack [3 (1895) 1 N. L.
R. 311.].
The principle of the exceptio rei venditae et traditae does not apply in cases
where a property is sold in execution. The estoppel raised against a vendor who
has no title on the date of sale but su
