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SENARATNE ET AL. v. NANDIAS SILVA
NLR32V97
1930 Present: Dalton
S.P.J. and Lyall Grant J.
SENARATNE et. al. v. NANDIAS SILVA.
109-D. C. Tangalla, 3,042.
Executor de son
tort-Application for probate -Filing of inventory-Order nisi- Action on mortgage
bond.
On the death of a person his son (the defendant) applied for probate
tendering a last will and filing an inventory, although another person was named
in the will as executor. Order nisi was issued but no further steps were taken
in the proceedings.
Held (in an action against the defendant for the recovery of money due
from the estate), that the defendant was liable to be sued as executor de son
tort.
APPEAL
from an order of the District Judge of
Tangalla. The facts appear from the judgment.
Hayley, K.C. (with him Soertsz), for plaintiffs, appellants.
No appearance for defendant, respondent.
September 12, 1930. DALTON S.P.J.-
Plaintiffs sued defendant as executor of the late Tikiri Samel de Silva to
recover the sum of Rs. 10,450 on three mortgage bonds executed by the deceased.
It appears that defendant, a son of the deceased, was first sued as
administrator. His answer was to the effect that, admitting the correctness of
plaintiff's claim, he had filed the will of deceased, but that no probate had
been issued to him and that he was therefore not liable. Plaintiff then applied
to have the plaint amended by substituting the word " executor " in place of "
administrator " in the plaint, presumably because from defendant's answer the
only inference could be that he was named executor in the will and so entitled
to probate. This amendment was allowed. When the will, however, is examined it
appears that one Hettihewage Ponthenis Appu is appointed executor and defendant
is not mentioned. What has happened to the executor counsel cannot tell us. He
appears to have been ignored in both the testamentary proceedings and in the
proceedings in this case by everyone until his name is mentioned in the
judgment.
Plaintiff's action has been dismissed, the trial Judge holding that defendant
had not taken upon himself the office of executor or intermeddled with the
estate.
The facts proved against him are as follows :-
By petition dated April 25, 1929, he set out the fact of deceased's death,
tendered to the Court the last will and an inventory of the estate, and in the
body of the petition asked for probate. In the prayer of the petition he prayed
" that he may be granted probate and administration of the estate as son of the
deceased ". Whether the will was read on this application being made is
doubtful, as examination would have shown that Ponthenis Appu was named as
executor. The only record made on this date is that the Court made an order
nisi, with direction for publication and service. Service was presumably to be
made upon the persons named as respondents, relatives of deceased, amongst whom
the person named as executor in the will does not appear. The order which was
published in the official Gazette of June 7, 1929, states that the petitioner "
is entitled to have probate of the same issued to him ". How any Court could on
the facts come to that conclusion it is difficult to understand. The subsequent
proceedings in the testamentary case that are material go to show that papers
were sent on his behalf to the Commissioner of Stamps for the assessment of
stamp duty, the latter replying that he was awaiting the Government Assessor's
report. The copy of the record of those proceedings put in does not go further
than that, so what happened later does not appear. It is admitted however that
no grant of probate or letters of administration with the will annexed have been
issued, nor has the order nisi been
made absolute. There is some
reason to think defendant took no further steps in the matter in view of this
action brought against him.
The mere making of an inventory of the property of a deceased person will not
constitute a p
